Breathing problems caused by work are some of the hardest workers’ comp claims to win, because the insurance company almost always points to something else: smoking, allergies, age or the air outside. They are also some of the most common. Construction dust, cleaning chemicals, fumes, mold and smoke all cause or worsen lung disease, and New York workers’ comp covers it.
The short answer
- Lung disease caused or made worse by work is covered by New York workers’ comp, as an occupational disease or, after a single exposure, as an accident.
- Smoking does not automatically defeat the claim. The question is whether work contributed to the condition.
- The case turns on the medical opinion connecting your condition to what you breathed at work.
Common work-related lung conditions
- Occupational asthma, including asthma that started at work and pre-existing asthma made worse by work
- Reactive airways dysfunction syndrome (RADS), which can follow one heavy exposure to fumes, smoke or a chemical spill
- Silicosis from cutting, grinding or drilling concrete, stone, brick and tile
- COPD and chronic bronchitis made worse by dust and fumes
- Hypersensitivity pneumonitis from mold, bird droppings or contaminated mist
- Asbestos diseases, covered on our asbestos exposure page
One exposure or years of exposure
How the claim is filed depends on how you got sick. If a single event caused it, such as a chemical spill, a fire or a burst of fumes in a confined space, it is treated as an accident, and you should give your employer written notice within 30 days. If it developed over months or years of breathing dust or fumes, it is an occupational disease, and the two-year deadline runs from when you knew or should have known it was related to your work.
When the carrier blames smoking
Carriers raise smoking history in nearly every lung claim. It is not the end of the case. A condition can have more than one cause, and the claim can succeed if work was a contributing cause. What matters is a pulmonologist’s opinion explaining how your work exposure contributed, supported by your work history and test results.
Building the claim
- Pulmonary function tests and imaging that document the condition
- A treating specialist’s report that ties the condition to specific exposures at work
- A detailed work history: the materials, the ventilation, whether you were given respirators, and how long you worked there
- Co-workers with the same symptoms, and any air testing or safety records from the job
Expect the carrier to send you to an independent medical exam, usually with a doctor who will say the condition is not work-related. Your own specialist’s report is what answers that.
9/11 and Fresh Kills
Lung disease from rescue, recovery and cleanup work after September 11 is handled under special rules. See our page on Fresh Kills and 9/11 responders.
Frequently asked questions
Can I get workers’ comp for asthma caused by work?
Yes. Asthma caused by work, or pre-existing asthma made worse by work, can be covered. The claim needs medical evidence connecting the condition to exposures on the job.
I smoked. Can I still get workers’ comp for lung disease?
Possibly. Smoking does not automatically defeat a claim. If your work exposures contributed to the condition, the claim can still succeed.
What is the deadline for a work-related lung disease claim?
For lung disease that developed over time, the two-year deadline runs from when you knew or should have known it was related to your work. For a single exposure, give written notice to your employer within 30 days.
Talk to a New York workers’ compensation attorney
The Law Offices of Frank J. Dito, Jr. handles workers’ compensation claims for work-related lung disease from the office on Staten Island, for injured workers throughout the five boroughs and across New York State.
Call 718.701.2776 or 800.310.5520. Consultations are free, at our office, by phone or by video call. If we don’t recover money for you, we don’t get paid.