Occupational disease; proximate causation; definitions
The occupational diseases as defined by section 23-901, paragraph 13, subdivision (c) shall be deemed to arise out of the employment only if all of the following six requirements exist:
( from 23-901-13-c = (c) An occupational disease which is due to causes and conditions characteristic of and peculiar to a particular trade, occupation, process or employment, and not the ordinary diseases to which the general public is exposed, and subject to section 23-901.01.)
- There is a direct causal connection between the conditions under which the work is performed and the occupational disease.
- The disease 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.
- The disease can be fairly traced to the employment as the proximate cause.
- The disease does not come from a hazard to which workers would have been equally exposed outside of the employment.
- The disease is incidental to the character of the business and not independent of the relation of employer and employee.
- The disease after its contraction appears to have had its origin in a risk connected with the employment, and to have flowed from that source as a natural consequence, although it need not have been foreseen or expected.
Notwithstanding subsection A of this section and section 23-1043.01, any disease, infirmity or impairment of a fire fighter's or peace officer's health that is caused by brain, bladder, rectal or colon cancer, lymphoma, leukemia or aden carcinoma or mesothelioma of the respiratory tract and that results in disability or death is presumed to be an occupational disease as defined in section 23-901, paragraph 13, subdivision (c) and is deemed to arise out of employment. The presumption is granted if all of the following apply:
- The fire fighter or peace officer passed a physical examination before employment and the examination did not indicate evidence of cancer.
- The fire fighter or peace officer was assigned to hazardous duty for at least five years.
- The fire fighter or peace officer was exposed to a known carcinogen as defined by the international agency for research on cancer and informed the department of this exposure, and the carcinogen is reasonably related to the cancer.
- Subsection B of this section applies to former fire fighters and peace officers who are sixty-five years of age or younger.
- Subsection B of this section does not apply to cancers of the respiratory tract if the fire fighter or peace officer has smoked tobacco products.
For the purposes of this section:
- "fire fighter" means a full-time fire fighter who was regularly assigned to hazardous duty.
- "Peace officer" means a full-time peace officer who was regularly assigned to hazardous duty as a part of a special operations, special weapons and tactics, explosive ordinance disposal or hazardous materials response unit.