In one of the most significant decisions yet to be rendered by a Court, a surgical registered nurse was declared to be totally and permanently disabled because of her latex allergy. The court declared that the nurse could not work outside of her house and that until "products containing latex are eliminated from hospitals and public settings" the nurse should be considered unable to work at all and should be entitled to benefits.
Connie Gates was employed as a registered surgical nurse, and as a result of regular and repeated exposure to latex products including surgical gloves, she developed a severe latex allergy with life threatening consequences. While the issue of medical causation was satisfied through the production of medical records, the issue of the nature and extent of the worker's disability remained for the Court to decide.
In its deliberations, the Court relied upon the "Odd Lot Doctrine" which is founded upon British common law and permits a finding of total and permanent disability where a claimant's search for work is fruitless since her physical defects in combination with her lack of skills make her an unmarketable unit.
The evidence before the court consisted of the testimony of the employee, a vocational expert and a treating physician along with an offer of a single in-home job which was offered to the nurse but had not been accepted by her at the time of trial. The vocational evidence offered indicated that the nurse suffered the consequences of latex allergy in each and every job that she had attempted since the diagnosis of this condition. The treating physician concluded that the nurse could not work outside of her home because even the presence of low levels of latex products could trigger a life threatening reaction.
In its decision, the Court cited prior Nebraska law which had adopted the "odd lot doctrine" holding that an injured worker should be declared totally and permanently disabled even though not all together incapacitated "if the worker is so handicapped that he will not be employed regularly in any well-known branch of the labor market." Schlup v. Auburn Needleworks Inc., 239 Neb. 854 (Neb. 1992).
The court reasoned that, while the nurse could probably sell her services in the competitive labor market, she could not depend on regular employment without factors such as business booms, sympathy of others, good luck, or superhuman efforts to rise above her medical disability. Judge Michael K. High concluded, "There is simply no proof that but for this one job, plaintiff could find in-home employment on a regular basis anywhere in the local labor market, including Beatrice, Lincoln, Omaha, or for that matter, nationally, via the internet and personal computer, or by any other workable communication means." Additionally, the Court was convinced that in the absence of performing regular hourly nursing services, she would not be able to retain her certification or keep her license as a registered nurse. The Court held that the registered surgical nurse was totally and permanently disabled. Gates v. Bryan Memorial LGH Medical Center East, Docket 199 Number 0706, Decided June 8, 2000 (Neb. Work. Comp. Court 2000).