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Workers’ Compensation Attorneys Should Read This Study and Dust Off Their Copies of the ADA
By Richard B. Rubenstein, Esq., Rothenberg, Rubenstein, Berliner & Shinrod, LLC, New Jersey
In the last thirty years, advances in epidemiology and diagnostics and trends in litigation brought the workers’ compensation community a veritable explosion of carpal tunnel syndrome, arthroscopic surgeries, complex regional pain disorder, TMJ, opioid regimens, chronic pain syndrome, and RADS. We saw the rapid rise and fall of thermography, chymopapain (see https://link.springer.com/chapter/10.1385/1-59259-904-4%3A351), and TMJ joint implants. Some of these medical “fads” had the lifespan in notoriety of Pet Rocks. Others persisted and required profound changes in workers’ compensation litigation. The workplace saw alterations: Employers discovered ergonomics as the computerized office emerged and developed. Some conditions simply added to the medical costs of the system, as they could now be accurately diagnosed and treated, but not effectively prevented. The vast majority of loss prevention efforts are aimed at what is peculiar to the workplace itself: The design of a desk or a chair, a machine, a tool, or an HVAC system. Employers are concerned with lifting parameters or instructions. Improvements are made in eye or ear protection. Effective re-breathers are distributed in toxic settings. All of these loss prevention strategies are, again, peculiar to the industry involved.
But what about a workplace where every worker, every visitor, and every vendor has the potential of bringing their own toxins, in multiples, to work every day, exposing unsuspecting co-workers each time they pass by a desk, a station, or a device? One where an employer cannot effectively police these exposures in order to mitigate them? That day may well be approaching. A recent study of multiple chemical sensitivities (MCS) used a nationally representative cross-sectional population-based sample of adult Americans. While the sample is relatively small, the findings are provocative. Published ahead of print in the Journal of Occupational and Environmental Medicine by Anne Steinemann, PhD (http://journals.lww.com/joem/Abstract/publishahead/National_Prevalence_and_Effects_of_Multiple.98732.aspx), there may be edits or corrections in the final version. Nevertheless, the results are somewhat shocking. Multiple chemical sensitivities are characterized by “adverse health effects from exposure to common chemicals and pollutants, pesticides, new carpet and paint, renovation materials, diesel exhaust, cleaning supplies, perfume, scented laundry products, and air fresheners.” MCS is noted to cause a broad range of acute, chronic, multi-organ, and disabling health effects, such as headaches, dizziness, cognitive impairments, breathing difficulties, heart palpitations, nausea, mucous membrane irritation, and asthma.
Among the population, 12.8% reported medically diagnosed MCS and 25.9% reported chemical sensitivity. Of those with diagnosed MCS, 86.2% experience health problems, 71.0% are asthmatic, and 70.3% cannot tolerate places that use fragranced products. 60.7% lost workdays or a job due to reactions to substances in the workplace that triggered adverse responses. The trend is daunting: The prevalence of medically diagnosed MCS has increased over 300%, and self-reported chemical sensitivity, over 200% in the last decade.
The Americans with Disabilities Act may provide significant support for workers with MCS. Since the ADA does not compile a list of medical diagnoses to be met, each worker claiming affliction with MCS will have to provide objective and competent medical evidence of conformity with the general definition of disability. The standard calls for a physical or mental impairment that substantially limits one or more major life activities. [See EEOC. (1992) A Technical Assistance Manual on the Employment Provisions of the Americans With Disabilities Act.] This issue was litigated in McBride v. City of Detroit, Case No. 07-12794 E.D. Michigan, Southern Division (2008), 2008 U.S Dist. LEXIS 107424, where a City employee demanded reasonable accommodation when sensitivity to a co-employee’s fragrances triggered serious health problems. This was held to be a triable issue by a Federal District Court. The case settled for $100,000, as well as orders for a series of workplace alterations to mitigate the exposure. A California jury recently awarded a $3.3 million verdict to a California Department of Transportation employee who alleged an ADA violation because of certain scents to which he was exposed, causing allergic rhinitis. Separate theories were pursued for the failure to accommodate, as well as retaliation. See http://sacramento.cbslocal.com/2017/05/17/bullying-caltrans-lawsuit-money-chemicals/
In the specific area of workers’ compensation, MCS cases have been slow to work themselves through the system and into the appellate courts. However, in one case, Capital Hardware v. Workers’ Comp. Appeals Bd. (Janee) (1999) 64 Cal. Comp. Cases 1263 (writ denied), a panel of the California Workers’ Compensation Appeals Board found that multiple chemical sensitivities, primarily from exposure to carbonless forms, could be a credible basis for an award of workers’ compensation, and the California Court of Appeal, Second Appellate District, Division Six subsequently denied the employer’s petition for writ of review. A year later, in United Airlines v. Workers’ Comp. Appeals Bd. (Brown Dodson) (2010) 75 Cal. Comp. Cases 389 (writ denied), a panel of the California Workers’ Compensation Appeals Board upheld a claim that MCS prevented a worker from working outside her home. The claimant suffered disabilities secondary to emotional reactions, inability to concentrate, memory difficulty, fatigability, and muscle achiness. The California Court of Appeal, Second Appellate District, Division Three subsequently denied the employer’s petition for writ of review. Taken together, these cases, nearly a decade old, presage the potential that the increasing numbers of diagnosed cases of MCS will present issues of mounting, troubling significance and frequency for stakeholders in the system. [Publisher’s Note: For more decisions on MCS issued around the country in both workers’ compensation and personal injury cases, see Appendix A below.]
The prospect of reducing triggering fragrances in the workplace is equally daunting. From perfumes to fabric softeners to pet products, haircare compounds, shaving supplies, fragrances define brands and distinguish them for buyers. Policing the personal habits of the workforce would be administratively challenging, as well as transformative of the culture of existing workplaces. Moreover, the growth of staffing services and short-term hires further complicates the process of regulating everything from laundry soap, perfumes, beauty products, and even fabric softeners as they come and go from the workplace. In some business settings, customers, vendors, and even repairpersons can carry triggering substances into a building, no matter how carefully the actual native workforce is vetted for them. It will be necessary for litigators to renew their understanding of the Americans with Disabilities Act, and to recognize ADA issues in virtually every MCS case.
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© Copyright 2018 LexisNexis. All rights reserved. The following case summaries are excerpted from Occupational Injuries and Illnesses (LexisNexis).
Bussard v. Minimed, Inc., 105 Cal. App. 4th 798, 129 Cal. Rptr. 2d 675 (2003). Personal Injury; Negligence. In March 2000, the defendant employer hired a pest control company to spray a pesticide overnight to eliminate fleas at its facility. The next morning, a clerical employee arrived for work. She noticed a funny smell and, within three hours, she felt ill, with a headache, nausea, and tightness in her chest. At noon, she told two supervisors she did not feel well enough to continue working and wanted to go home. One supervisor offered to send her to the company doctor, but the employee declined the offer, while another supervisor asked whether she felt well enough to drive home, and she said yes. Nine workers went home early feeling ill and 22 employees sought medical care either that day or later for their exposure to the pesticide. The clerical employee drove home shortly after noon. While in route, she rear-ended the plaintiff, who was stopped at a red light. The employee told the police officer that responded to the accident scene that she had felt dizzy and lightheaded before the accident. The plaintiff sued the employee and the defendant employer, alleging a single cause of action for negligence for her personal injuries and property damage. She claimed the defendant was vicariously liable as the employee’s employer under the doctrine of respondeat superior, because the employee was acting within the course and scope of her employment when she was driving home ill from pesticide exposure. The defendant moved for summary judgment. It argued the "going-and-coming" rule meant the employee was not within the course and scope of her employment during her commute home. Accordingly, it should not be held vicariously liable under respondeat superior. The trial court agreed. It noted that the pesticide had not incapacitated the employee to the point of rendering her irrational. Thus, it held, her exposure to it did not justify disregarding the going-and-coming rule to make the defendant vicariously liable for her as she drove home sick. On the plaintiff’s appeal, the reviewing court reversed. The appellate court held that the going-and-coming exception to the doctrine of respondeat superior does not apply to an employee while she is driving home after becoming sick at work from exposure to pesticide fumes. The court noted that the going-and-coming rule is not iron-clad, and allows for several exceptions. One exception applies when an employee endangers others with a risk arising from or related to work. In determining whether such danger arises from or is related to work, the reviewing court noted, case law applies a foreseeability test. Here, the court stated, the employee suffered pesticide exposure at work to which she attributed illness and impaired driving. That an employee might not be fit to drive after breathing lingering pesticide fumes for several hours is not such a startling or unusual event, the court concluded, that it could find a car accident on the employee’s commute home was unforeseeable. Hence, the appellate court held, the trial court erred in finding the going-and-coming rule barred the plaintiff’s claim of respondeat superior. Judgment reversed and remanded.
Mulroy v. Becton Dickinson Co., 48 Conn. App. 774, 712 So. 2d 436 (1998). Workers’ Compensation. The claimant was employed at the defendant’s plant from 1979 until 1991, when she was diagnosed with distal symmetric sensimotor polyneuropathy. The defendant manufactures plastic syringes and labware. The claimant worked in several departments throughout her 11 years at the plant, including the molding department and the marking, assembly and packaging department. Prior to working in the molding department, the claimant was in excellent health and led an active athletic life. Soon after her transfer to that department, she began to exhibit symptoms of weight and hair loss, fatigue, pain in her hands and arms, dizziness, loss of coordination and nasal infection. While employed in the molding department, the claimant was exposed to a volatile liquid chemical solvent, a hydrocarbon solvent known to be neurotoxic and to cause peripheral neuropathy. In 1986, the claimant was transferred to the marking, assembly and packaging department, where she used a multi-chemical solvent, which contained chemicals also known to cause peripheral neuropathy. She was also exposed to ethylene oxide, a volatile neurotoxic gas, which was used in the sterilization process and emitted into the air. It was undisputed that the claimant was stricken with distal symmetric sensimotor polyneuropathy. A specialist in occupational and environmental medicine began treating the claimant in 1991 and testified that her injuries were the direct result of her exposure to the chemicals in the workplace. A physician specializing in neurological problems in pregnant women testified as an independent medical examiner. He opined that the claimant’s injuries were solely the result of having Charcot-Marie Tooth II Disease (CMT II). The claimant’s specialist thought it unlikely that the claimant had CMT II, but he did not dispute the possibility that she might have that condition. He concluded, however, that if the claimant did have that disease, the conditions in the workplace exacerbated the dormant and asymptomatic state of the disease. The workers’ compensation commissioner concluded that the injury resulted from exposure to neurotoxic chemicals in the workplace and awarded the claimant compensation. The defendant appealed, claiming that the claimant was not exposed to the volatile chemicals, and her injury was solely the result of CMT II. The reviewing court affirmed. The court stated that, where it is difficult to determine whether circumstances in the workplace caused an injury, it is necessary to rely on expert medical testimony. The commissioner’s determination to accept the testimony of the claimant’s physician rather than the independent examiner was a factual determination properly within his province. This determination cannot be overruled by the board unless it could not find any evidence to support the conclusion. The appellate court held that the findings of the commissioner were clearly supported by the testimony of the specialist. Therefore, the reviewing court ruled, the board properly upheld the factual determinations of the commissioner. Judgment affirmed.
Consultants & Designers v. Brown, 697 So. 2d 1228 (Fla. Dist. Ct. App. 1997). Workers’ Compensation. Claimant suffered respiratory problems as a result of exposure to chemicals at work, aggravating her pre-existing asthma condition. She was taken by ambulance to a local hospital, where she remained 10 days for treatment. After her release, she returned to work for the employer, until she was discharged for reasons unrelated to her accident. She continued to receive treatment for her asthma. In addition, she developed avascular necrosis, a condition for which she underwent two hip replacements. She filed claims for benefits, including payment of medical bills related to the asthma and her hip condition. She also sought authorization for treatment by a psychiatrist. The employer and its carrier denied the requested benefits, claiming that no accident had occurred and that the employee’s medical problems and need for psychiatric treatment were unrelated to any on-the-job injury. At a hearing, two physicians indicated that claimant’s chemical exposure resulted in only a temporary exacerbation of claimant’s chronic respiratory condition, which would have lasted only one to three months. One of them also testified that claimant required no further medical care as a result of the incident. The other physician also testified that claimant’s avascular necrosis was causally related within a reasonable degree of medical certainty to the exposure and resulting treatment with steroids. A judge of compensation claims found that a compensable accident had occurred and awarded the requested benefits. Two years later, a judge of compensation claims rendered a second amended order, awarding claimant temporary total disability benefits, temporary partial disability benefits, medical benefits and directing the employer to authorize treatment by a psychiatrist if referred by claimant’s treating physicians. The employer and carrier appealed. The reviewing court reversed the award of medical benefits relating to the asthma treatment after claimant left the hospital, noting that the medical testimony, relied on by the judge of compensation claims, established that claimant’s exposure resulted in only a temporary exacerbation of her pre-existing asthma condition. Accordingly, it ruled, competent substantial evidence did not support the judge’s award of continued treatment for claimant’s asthma beyond the first three months. However, it affirmed the judge’s awarding of benefits relating to claimant’s avascular necrosis. Finally, the court held that the compensation judge’s authorization for psychiatric evaluation and treatment was improper, since there was insufficient medical evidence to indicate that claimant needed the psychiatric treatment as a result of the work-related accident. Judgment affirmed in part, reversed in part, and remanded.
Appeal of Lockheed Martin Corp., 147 N.H. 322, 786 A.2d 872 (2001). Workers’ Compensation. On the employer’s appeal from a decision awarding the claimant workers’ compensation benefits for a preexisting condition of multiple chemical sensitivity syndrome (MCSS), the State’s high court reversed. The claimant began working for the defendant employer in June 1997. Prior to that time, she had developed MCSS. That condition manifested itself through symptoms including burning in the mouth, chest congestion, a choking sensation, headaches, and joint and stomach pain during exposure to a number of common scents such as perfumes, colognes, body lotions, hair sprays and deodorants. After a number of uneventful months in the defendant’s employ, the claimant was transferred to corporate headquarters where she worked with eleven women in a room separated by cubicles. The claimant began to suffer symptoms of MCSS, making it almost impossible to perform her job. Despite the defendant’s attempts to accommodate the claimant, she left work on her doctor’s orders for three weeks in December 1998. The situation was eventually resolved by providing her with a separate room in which to work. The claimant sought workers’ compensation benefits for her three-week absence. A hearing officer determined that the claimant met her burden of proof that she experienced an aggravation of symptoms related to preexisting MCSS that arose out of and in the course of employment for the defendant. As a result, the hearing officer found, the claimant was temporarily totally disabled for the three-week period. The Compensation Appeals Board affirmed. On the employer’s appeal judicial appeal, the State’s high court reversed. The appellate court held that the high blood pressure was an expected effect of the claimant’s preexisting MCSS, and that therefore the board’s award of benefits was unreasonable. Moreover, the high court held, the evidence was insufficient to establish that the injury arose out of and in the course of the claimant’s employment. In order to be compensable under the State’s workers’ compensation law, an injury must result from the conditions and obligations of the employment and not merely from the bare existence of the employment. In this case, the claimant testified that she worked nine hours a day, and that it was the duration of exposure to the offending scents that caused her symptoms. The board concluded that the claimant’s workplace exposure differed from her everyday exposure in that she could not leave the affected area when she began to experience symptoms of MCSS. The high court held that the claimant’s workday was not an abnormal workday. Therefore, the court concluded, the board erred in holding that the claimant proved legal causation. Two judges dissented, concluding that board’s findings in this case were supported by the evidence. Judgment reversed.
Zingler v. Eastman Kodak Co., 288 A.D.2d 564, 732 N.Y.S.2d 657 (2001). Workers’ Compensation. On the claimant’s appeal from a ruling that he did not sustain an occupational disease and denying his claim for workers’ compensation benefits, the reviewing court affirmed. Shortly after taking voluntary early retirement from his thirty-year career with the defendant employer, the claimant sought treatment for various symptoms, including chronic fatigue syndrome. He thereafter filed a claim for workers’ compensation benefits, alleging that his symptoms were the result of exposure to chemicals while cleaning and heat-treating machine parts in the course of his employment. The claimant and his employer presented conflicting expert medical opinions on the issue of whether the claimant’s chronic fatigue and other symptoms were causally related to chemical exposure at work. The workers’ compensation judge denied the claim. On the claimant’s administrative appeal, the Workers’ Compensation Board appointed an impartial specialist, who concluded that the claimant’s symptoms were not causally related to the chemical exposure. Subsequently, the board expressly credited, inter alia, the report and testimony of that specialist, who agreed with the employer’s experts on the issue of causation. As a result, the board denied the claim. On the claimant’s judicial appeal, the reviewing court also affirmed. The appellate court stated that the board clearly had the authority to appoint an impartial specialist during the review process, and found in this case, in view of the nature of the claimant’s symptoms and the conflicting medical evidence submitted, the board reasonably concluded that an examination by an impartial specialist in the field of toxicology or occupational medicine was warranted. Furthermore, the appeals court ruled, the reports and testimony of the employer’s consultants and the impartial specialist indicating that the claimant’s symptoms were not caused by exposure to chemicals in the workplace, which the board specifically credited, were sufficient to rebut any presumption arising under the Workers’ Compensation Law, and, in addition, provided substantial evidence to support the board’s finding that a causal relationship was lacking. Judgment affirmed.
Hutson v. Phillips Floor Serv., 158 N.C. App. 743, 582 S.E.2d 80 (2003). See 2003 N.C. App. LEXIS 1286. Workers’ Compensation. The employer employed the claimant as a hardwood floor installer and finisher from October 1997 until January 1999. Finishing hardwood floors required sanding, buffing and placing a coat of sealant on the floors. Once the sealant dried, a coat of polyurethane was applied with a hand applicator. In mid-June 1998, the claimant began to experience a breakout on his hands. A dermatologist treated the rash with Prednisone, and for a time the rash cleared up; however, the rash returned. When the claimant wore gloves while working, his hands would sweat and break out. The rash eventually spread over his body. He left the employer’s employment in January 1999, when his condition did not improve. In February 2001, another dermatologist diagnosed the claimant’s condition as contact dermatitis after he tested positive to the chemicals ethylenediamine dihydrochloride and cobalt dichloride. At the time the latter dermatologist saw the claimant. His hands were clear of any rashes and showed no signs of scarring. The claimant alleged that he was unable to work as a floor finisher due to his allergies to the polyurethane coating and other cross-reactants used during the floor finishing process. He continued to experience breakouts, which lasted anywhere from a few days to a couple of weeks, especially during warm weather. The claimant sought compensation for his contact dermatitis. When the employer denied his claim, the claim was assigned for hearing. Afterwards, the deputy commissioner denied the claimant. On appeal, the commission affirmed. On the claimant’s appeal, the reviewing court affirmed. The appellate court held that the commission’s findings supported its conclusions of law that the claimant failed to meet his burden of showing that he contracted an occupational disease or that he had any disfigurement or scarring from his employment. failed to meet his burden of showing entitlement to workers’ compensation benefits of an occupational disease and resultant scarring. Indeed, the court found, there was no causal connection between the claimant’s contact dermatitis and his occupation, since the evidence indicated that the public was equally exposed to the chemicals to which the claimant had an allergic reaction. Accordingly, the reviewing court held, the commission did not err in denying the claimant workers’ compensation benefits. Judgment affirmed.
SAIF Corp. v. Lewis (In re Lewis), 335 Ore. 92, 58 P.3d 814 (2002). Workers’ Compensation. The claimant worked as a bioscience research technician for the defendant employer. In February 1997, the claimant’s work involved cleaning a building which contained insecticides, herbicides and fungicides in liquid, powder and granular forms. The claimant and his co-workers moved the chemicals and cleaned the room. The claimant also scraped paint from the ceiling and walls to prepare them for repainting. The room was dusty and the work stirred up dust. The claimant wore protective clothing, including a charcoal respirator mask. The mask leaked. The claimant also wore goggles part of the time, but he took them off when they became fogged. During the job, the claimant experienced fatigue and eye irritation. At about three p.m., after working, the claimant felt disoriented and confused. He experienced eye irritation, tearing, coughing, and wheezing on his way home. That evening, the claimant noticed a yellowish-whitish powder in his nostrils. He had difficulty concentrating. By the next morning, the claimant had a sore throat, sore neck, fatigue, dizziness, tinnitus, headache, sinus congestion, bright yellow phlegm and sputum, a chemical taste in his mouth, and vision abnormalities. The claimant continued working. He sought medical treatment from his regular physician in early March 1997. By that time he was about 70 percent recovered. His physician referred the claimant to a doctor who examined him once and ordered tests. That doctor opined that the claimant’s work exposure caused the symptoms for which he sought treatment. The claimant’s regular physician also referred the claimant to a facility where he was examined by two doctors in May 1997. By that time, the claimant believed that he was 95 percent recovered. He filed a claim for exposure to pesticide-contaminated dust. The employer’s workers compensation carrier denied the claim, stating that there was insufficient evidence of a diagnosable condition relating to the chemical exposure. At a hearing, there was conflicting evidence from expert witnesses. The board agreed with the insurer that objective findings did not support the medical evidence of some of claimant’s symptoms. However, the board also concluded that the claimant’s treating physician had recorded other symptoms (including irritated eyes, sinus congestion, and production of bright yellow phlegm and sputum) which were observable and verifiable. The board also found that the treating physician’s opinion was more persuasive than the contrary opinions of the insurer’s experts. On judicial review from the board’s order in claimant’s favor, the Court of Appeals reversed, concluding that "objective findings," as defined by statute, did not support the medical evidence of the claimant’s disease. On further appeal by the claimant, the State’s high court reversed the Court of Appeals and affirmed the order of the Workers Compensation Board. The high court concluded that the board did not err in concluding that medical evidence supported by objective findings, as defined by the applicable statute, established the existence of the claimant’s occupational disease. Court of Appeals judgment reversed; Workers Compensation Board’s order affirmed.
Schrader Bellows Pneumatics v. Workers’ Compensation Appeal Bd. (Earle), 711 A.2d 578 (Pa. Commw. Ct. 1998). Workers’ Compensation. The claimant began to work with the employer as a welder in 1976. Between 1979 and 1980, the claimant was assigned to work on a drill press with the same employer. This position involved contact with coolants which were necessary to keep the machine working properly. In 1980, the claimant developed contact dermatitis on his feet, hands, and arms. Near the end of 1980, the claimant was laid off from his work with the drill press; his condition resolved itself, and he became asymptomatic. The claimant returned to work approximately three weeks later. From 1981 to 1986, the claimant experienced two subsequent outbreaks of dermatitis which forced him to miss approximately two weeks of work for each episode. After being absent from work each time, the dermatitis would resolve itself, and the claimant would return to work. In February of 1986, the claimant’s feet began to break out in blisters to the point that the pain accompanying the blisters became intolerable. After receiving some treatment from the employer’s physician, the claimant began receiving treatment from a physician who directed the claimant to take two weeks off from work in conjunction with his treatment of the claimant. During the two-week period, the claimant’s condition improved substantially. Upon returning to work, the claimant’s physician directed the employer to provide the claimant with rubbers to cover his shoes, and, as a result, the claimant’s condition did not return to his feet, but he did experience the condition on his hands and arms on subsequent occasions. From 1986 to 1988, the claimant experienced four to five recurrences of dermatitis on his arms and face, each recurrence resulting in an absence of approximately two weeks followed by a return to work. In February of 1988, the claimant’s dermatitis recurred from his elbow to his face, and he was directed to take two weeks off by his treating physician. The claimant returned to work and experienced a similar outbreak six months later, which forced him to again take off work for over four years. As a result of this outbreak, the claimant began receiving benefits pursuant to a notice of compensation payable. In August 1991, the employer filed a petition to terminate the claimant’s benefits, alleging that, as of July 1991, the claimant’s condition had completely resolved. This petition was later withdrawn, but in February 1992, the employer filed a second petition to terminate, again alleging that as of July 1991, the claimant’s condition had resolved such that the claimant could again return to work. In October 1992, the claimant returned to work, and accepted an alternative position as a sub-assembler in a different area of the employer’s facility. After approximately two weeks in the new position, the claimant began to experience the same type of condition that had caused him to leave work in 1988. In November 1992, the claimant was again directed by his physician to leave work, and the claimant has not returned to work since that date. The employer moved to suspend the claimant’s benefits. At a hearing, the claimant testified that he had never had any problems with dermatitis prior to beginning his work with the employer. However, he did note that he had one outbreak of dermatitis during a period of time when he was unable to work for the employer. Due to the difference in the type of blisters involved, the claimant attributed this outbreak to an unfavorable reaction to chemotherapy that the claimant had received to treat bladder cancer. The claimant’s treating physician testified that the claimant’s dermatitis was caused by exposure to coolants used at the employer’s plant. The doctor opined that the claimant could not continue to work for the employer, noting that the chemicals to which the claimant was sensitive were airborne. He concluded that if the claimant continued working at the employer’s plant in any capacity, he would continue to experience dermatitis, which, if left untreated, could eventually lead to his death. The workers’ compensation judge denied both the termination and suspension petitions, concluding that the claimant could not return to work without experiencing a recurrence of the dermatitis, and, therefore, the employer failed to demonstrate that the claimant was capable of returning to his pre-injury position or that other suitable employment was available to the claimant. On administrative appeal, the board affirmed. On the employer’s judicial appeal, the reviewing court affirmed, holding that it would be barbaric and absurd to require the claimant to endure a new outbreak of dermatitis in order to collect benefits under the Act. Judgment affirmed.
Hensley v. England/Corsair Upholstery Mfg. Co., 2003 Tenn. LEXIS 582 (June 24, 2003). Workers’ Compensation. The 55 year-old claimant had been working as a seamstress or sewing operator for about 30 years. In August 1993, she started working for the defendant furniture manufacturing company. She testified at a workers compensation hearing that she worked mostly with fabric material and that in handling fabric, her hands became very dry. She and other sewing operators kept lotion for use on their dry hands. She said that about one year prior to stopping work in November 1998, she began to work with leather. Her hands started swelling, cracking. and bleeding. She stated the green dye would actually rub off on her hands and she tried wrapping her hands with gauze and masking tape. Sometime later, she testified, her "feet broke open." She worked with leather for about a year before going to her family physician, who treated her for several years. He recommended she see a dermatologist, who gave her similar treatment. It was more expensive so she quit going to the dermatologist and returned for treatment with her primary physician. After being off from work for about six months, she was terminated. The claimant testified she had tried to find work but was rejected because of the condition of her hands. She said her hands and feet have healed to some extent but she has not found any employment. The claimant’s family physician said he first saw the claimant in late August 1998 and she had severe hand dermatitis; that he prescribed several medications; she returned to work in early September; she came back to see him in late September, showing signs of severe rash and allergic dermatitis which he felt was definitely due to the fabric, either leather or vinyl, or both. He stated that over a period of time when she was off work, she would get better and when she returned to work, she got worse. He opined that her dermatitis was work-related. The doctor gave her a 50 percent impairment rating. Another family practice physician performed an independent medical examination in October 1999. He learned she was also being treated for a thyroid condition and hypertension and thought her problems could be related to her medications for these problems. He said he thought the opinion of the claimant’s physician on causation was speculation since a skin biopsy or patch test had not been conducted. He was of the opinion she could resume her sewing work. Also, if her work conditions did cause her problems, he felt her impairment would be 20 percent. The employer’s plant manager and company nurse both testified that the claimant told them during July 1998 her problem was not work-related. However, these conversations were prior to her August 1998 visit to the doctor. The plant nurse admitted that during November 1998 she advised her that her doctor had said her condition was work-related. The nurse also testified that no other employee had complained of the same problem. After the hearing, the trial court awarded 50 percent permanent partial disability to the body as a whole. On the employer’s appeal, the reviewing court affirmed. The appellate court found that the trial court did not abuse its discretion in resolving the opposing medical opinions by accepting the evidence of the claimant’s treating physician. The reviewing court noted that, when the expert medical testimony differs, it is not unusual for courts to accept the testimony of treating physicians over those of an expert hired solely for the purposes of litigation. Judgment affirmed.
Alder v. Bayer Corp., 61 P.3d 1068 (Utah 2002). Personal Injury; Negligence. Sometime prior to March 1993, the defendant’s field engineer installed an x-ray processing machine in a hospital mammography suite. At the time of installation, he expressed concern regarding the adequacy of the new mammography suite’s ventilation, but did not test the ventilation in the room. Sometime later, he asked the hospital’s chief technologist if the hospital had tested the ventilation and was told that the maintenance department had checked it and that the ventilation was adequate. After the machine was installed in the mammography suite, one of the plaintiffs complained to the engineer that she had lost her voice and experienced tightness in her chest. Three other individuals also reported symptoms in connection with working in the mammography suite. The defendant’s engineer became aware that the ceiling vent in the new room was not functioning properly, but he did not tests the machine or the ventilation system, even when instructed to do so by the defendant’s product specialist. The hospital’s chief technologist testified that he relied on the expertise of the defendant’s people regarding safely ventilating the workplace. Ultimately, the plaintiffs’ symptoms included loss of voice, watery eyes, red skin, nausea, muscle aches, dizziness, joint pain, earaches, runny nose, confusion, memory loss, slow healing, and severe fatigue. They sought treatment from a number of physicians, who found no evidence of malingering and variously diagnosed them with multiple chemical sensitivities (MCS), cognitive impairment, toxic encephalopathy, immune toxicity, chronic fatigue syndrome (CFS), and symptoms of fibromyalgia, resulting from chemical exposure they suffered in the workplace. In the spring of 1997, an independent medical panel examined the plaintiffs. The panel prepared a report for the administrative law judge indicating that based on reasonable medical probability, the first plaintiff’s chemical exposure caused her irritant-induced laryngeal disorder and substance-induced persisting dementia, and that she had no functional ability to continue work at the hospital. The panel made similar findings regarding the second plaintiff. The defendant’s physician, by contrast, examined the plaintiffs and concluded that they had suffered no permanent respiratory impairment or immunological injury of any kind, and could return to work as radiology technologists. He discounted the diagnoses of MCS or immune toxicity as lacking a consistent disease definition and never having been demonstrated through testing. The plaintiffs left their positions at the hospital in June 1995 upon the recommendation of their own physicians, and allegedly have since been unable to pursue their specialty as radiology technicians. They maintain that they have been largely confined to their homes by severe reactions to a large array of common chemicals and by their extreme fatigue. In April 1995, the hospital modified the ventilation system in the mammography suite by installing a seven-inch vent directly to the outside. No air quality tests were performed before this remediation. The plaintiffs filed suit. The trial court excluded the plaintiffs’ expert testimony relative to the cause of their alleged illness and granted summary judgment in favor of the defendant. On the plaintiffs’ appeal, the reviewing court reversed. The appellate court held that the defendant’s physical undertaking of the installation and maintenance of the machine, which it should have known was necessary for the plaintiffs’ safety, conferred a duty of reasonable care in that undertaking. It held further that the duty and the defendant’s possible breach of that duty were supported by sufficient evidence to raise material issues of triable fact. The reviewing court held further that the trial court was within the discretion of its gate keeping function in excluding scientific and medical expert testimony relating solely to MCS. However, it concluded that the trial court committed factual error in grouping all related symptoms and conditions together under the heading of MCS. The appellate court noted that fibromyalgia, CFS, and cognitive deficits were all accepted diagnoses and that the record contained sufficient evidence of these diagnoses to raise an issue of triable fact. Judgment reversed and remanded.
"Policing the *personal* habits of the workforce would be administratively challenging"
Part of the issue is that people see these things as 'personal' habits. It flies well beyond the boundaries of personal when you are a walking emissions factory, outgassing your VOCs and toxicants to those who share the public air with you. You are literally putting a chemical soup INSIDE other people's bodies.
For as long as fragrance chemicals, which are designed to both stick and persist while simultaneously becoming airborne so that they can be inhaled, take top priority to companies and consumer suckers, this is not a personal issue any more than is lighting up a cigarette in a kindergarten classroom.
Smoking is the personal choice, choosing to use tobacco in a way that it inflicts hazards on other people's bodies without their consent is a public issue. This is why it's easy to accept 'no smoking inside public places' laws. It won't be long. More people are falling ill. Soon people will understand the seriousness of this issue, because either they will be prisoners in their own home, or they will know someone who is.
Another avenue for exposure is through the presence of new construction. But at least that's an obvious thing to avoid and isn't so much like a potential buried landmine every time you walk past/sit near another human in public.
Pesticide exposure is yet another... but we have laws that signs must be placed so that people can avoid entering the area. The fact that cosmetic pesticide/herbicide use is just plain stupid aside, maybe there's something we can learn there. Maybe people who choose to bathe in Downey, Gain, Axe, and Bath n Body Works lotions and sprays, and all of the other poor choices out there; Maybe they could just wear a special sign to warn people to give them a wide birth. (And jut so you know, offenders, that would around 30 feet. Because yes, you smell from that far away. You just don't know it because you have massive olfactory fatigue. But you not only smell up a whole room when you enter, your stench stays on things like seating surfaces and grocery cart handles long after you've departed. Essentially, you're gross. And it's far from 'personal' when you're causing everyone else to breathe it.