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January 02, 2003 9:14 AM
Defense Denied Medical Expert When Latex-Free Environment Not Guaranteed

 Pennsylvania: Defense Denied Medical Expert Evaluation When a Latex-Free Environment Cannot be Guaranteed
An injured worker who was a waste remover and who developed sensitivity and sustained an anaphylactic reaction to latex requiring emergency room treatment, did not have to submit to a defense medical examination. The injured worker had positive test results, which demonstrated a very strong latex sensitivity. There was no credible evidence that the defense medical expert’s office was latex-free and he could not guarantee that there was no latex in his office. The reviewing tribunal affirmed the trial court decision prohibiting a trial examination by the defense expert. Dunbar v. Hospital of University of PA, 2002 WL 31681349 (Pa.Work.Comp.App.Bd. (November 25, 2002)).
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South Dakota: Adopts Specific Event Theory
The Supreme Court of South Dakota affirmed the trial court’s decision that a latex allergy claim sensitivity was a specific event or injury and one that could be aggravated by subsequent reoccurrences even if there was a new subsequent employer in a new jurisdiction. In placing liability on the original employer, St. Luke’s, the South Dakota Supreme Court upheld the last injurers’ exposure rule but was able to avoid the application in this particular factual situation since they found the condition not to be an occupational disease but a specific event that manifested itself in mere recurrences rather than an independent aggravation of a previous injury. The original employer/insurance carrier remain liable even though there were subsequent aggravations and incidents at another employer and another jurisdiction. St. Luke’s Regional Medical Center v. Kennedy, 2002 WL 31521401 (S.D. 2002).

Nebraska: Upholds the Latex Single Reaction Theory Invoking the Last Injurious Exposure Rule
A Nebraska appellate tribunal affirmed the decision made by a Judge of Compensation apportioning liability upon the last injurious exposure theory relying upon the rationale of the sentinel compensatory event. The court found that there was causal relationship at the last employment, which triggered a finding of compensability. Morris v. Nebraska Health System, A-01-1194 (October 22, 2002).

ERISA: Plan Administrator Did Not Abuse Discretion in Terminating Benefits to Latex-Sensitized Worker
The Court found there was no abuse in discretion by the ERISA plan administrator in denying benefits since there was “substantial evidence” in finding that the employee was not disabled despite the sensitivity to latex. Smith v. Unum Life Ins. Co. of America, 305 F.3d 789 (8th Cir. 2002).

Veterans Administration: VA Medical Center Need not be Latex Free
A former, part-time nurse at a VA medical center filed a complaint alleging that she was discriminated against because of disability when management officials terminated her employment. She described her disability as a latex allergy. Even though the medical experts produced conflicting opinions she did suffer an anaphylactic reaction when she came in contact with the powdery substance used to coat the gloves. She refused to return to work unless the entire medical center converted to powder-free latex gloves and it did not. While the manager offered her several accommodations including: non-latex gloves, masks, respirators, and a reassignment to a job in a separate latex-free building outside of the main hospital, she refused to return to work. She alleged that even under such accommodations she may come into contact with low levels of latex powder covered by other persons and that the latex powder might be airborne and could be inhaled. The Office of Employment Discrimination Complaint Adjudication of the Department of Veterans Affairs held that she was not entitled to an accommodation of her choice but instead only to a reasonable accommodation.OEDCA Digest, Vol. V, No.2, Spring 2002 pp 11-12.

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[1] The author, who practices in Wayne, NJ , wrote Workers' Compensation Law, 3rd ed. (West Group). He can be reached electronically at: jon@gelmans.com. Internet: http://www.gelmans.com/; Wayne, NJ, Tel: (973) 696-7900; Fax: (973) 696-7988. COPYRIGHT ©2003 Jon L. Gelman.

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