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King v. District of Columbia Department of Employment Services12/16/1999
the case now before us. Moreover, the issue addressed in Railco was a narrow one. Railco answered the specific question of which statute should apply where the claimant was last exposed to the harm that caused his occupational disease prior to the effective date of a new statute but the disease was not manifest until after that statute went into effect. In choosing a manifestation rule to answer that question, the court did not necessarily consider all the implications of such a rule in other factual contexts. We are not convinced, for example, that Railco necessarily would foreclose coverage under the WCA where the disease was manifest prior to the effective date of that Act but the last exposure occurred after that date. D.C. Code § 36-310 specifically provides that in the case of occupational diseases, "liability for compensation rests with the employer of the last known exposure." This statutory provision would seem to imply that where the last exposure to a harmful working condition occurred after the effective date of the Act, the occupational disease should be covered by the Act even if that disease began manifesting itself before the Act took effect.
This latter possibility, which is not addressed in Railco, illustrates why it is appropriate that we not read the holding of that case too broadly. In cases such as Railco, involving a long period of latency between exposure to harmful working conditions and the manifestation of the resulting disease or injury , a manifestation rule serves the beneficent purposes of the WCA. See Railco, 564 A.2d at 1172-73 (quoting, inter alia, Judge Learned Hand's observation in Grain Handling Co. v. Sweeney, 102 F.2d 464, 466 (2d Cir.), cert. denied, 308 U.S. 570 (1939), that the LHWCA "is not concerned with pathology, but with industrial disability; and a disease is no disease until it manifests itself."). But it is arguable that in other cases, such as where a cumulative traumatic injury becomes manifest long before it becomes totally disabling, and the employee continues to work in the interim, alternatives to the manifestation rule would better fulfill the goals of the WCA.
The potential drawbacks to a manifestation rule in such cases have persuaded courts in some other jurisdictions to adopt alternative rules for specifying the time of injury in cumulative trauma cases. The most common alternatives are the "last exposure" rule and the "last day worked" rule. See, e.g., Lawson v. Lear Seating Corp., 944 S.W.2d 340, 342 (Tenn. 1997); Berry v. Boeing Military Airplanes, 885 P.2d 1261, 1267-68 (Kan. 1994); McKeever Custom Cabinets and Lumberman's Mut. Cas. Co. v. Smith, 379 N.W.2d 368, 374-75 (Iowa 1985); Fidelity Mut. Life Ins. Co. v. Workmen's Compensation Appeal Bd., 559 A.2d 84 (Pa. 1989); Larson's Workers' Compensation, § 50.05, at 50-9-10. These cases fix the time of injury on the date when the employee is last exposed to the trauma or is last able to work. For instance, the courts in Lawson and Berry adopted a "last day of work" rule fixing the date of injury in cases of carpal tunnel syndrome caused by repetitive stress over a long period of time. Those courts reasoned as follows:
f we were to adopt either the date on which the injury "manifests itself" or the date on which the injury is "diagnosed," we would set a potential trap for the individual who, despite pain and discomfort, continues to work long after his or her carpal tunnel is "diagnosed" or has "manifested itself.". . . It seems to us that we should adopt the rule that causes the least potential prejudice and upholds the spirit of our Workers Compensation Act. We believe use of the last day of work accomplishes both of those purposes. Lawson, 944 S.W.2d at 342 (quoting Berry,
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