III. Diseases A.
Notice
A notice defense is much less frequently seen in disease cases than in injury cases, although the Act technically provides that the employee must provide the employer notice of the occupational disease within 60 days of communication of diagnosis to the employee. The section also states, however, that "in no case shall the failure to give notice deprive the employee of his cause of action for an occupational disease, unless it be shown that such failure resulted in clear prejudice to the employer." Virginia Code Section 65.2-405(A).
B.
Occupational Diseases 1.
2.
By statute, an occupational disease is defined as "a disease arising out of and in the course of employment, but not an ordinary disease of life to which the general public is exposed outside of the employment."
The disease will only be deemed to arise out of the employment if it is apparent to the rational mind, upon consideration of all the below circumstances that:
a) b)
c) d)
e) f)
There is direct causal connection between the conditions under which work is performed and the occupational disease;
It can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment;
It can be fairly traced to the employment as the proximate cause;
It is neither a disease to which an employee may have had substantial exposure outside of the employment, nor any condition of the neck, back or spinal column;
It is incidental to the character of the business and not independent of the relation of employer and employee; and
It had its origin in a risk connected with the employment and flowed from that source as a natural consequence, though it need not have been foreseen or expected before its contraction.
