The Proof of Causation Continues As A Key Element in Latex Litigation Claims
By Jon L. Gelman (1)
Alabama: Lack Of Evidence Produced Results in Denial of Benefits
A hospital worker, who was employed as a secretary, was denied workers’ compensation benefits due to the lack of evidence presented at the hearing establishing that the potential of latex sensitivity was peculiar to her employment. A very well reasoned dissent indicated that the court should have followed an accepted theory of either accidental injury, cumulative-physical-stress disorder or occupational exposure before applying the causation tests. Northeast Alabama Regional Medical Center v. Isbell, 802 So.2d 1087 (Civ. Ct. App. AL 2001)
Michigan: Follows the Specific Incident Rule
The WC Appellate Commission adheres to the specific episode rule and rejects an aggravation theory while holding the health care worker to be totally and permanently disabled as a result of both a contact dermatological reaction as well as a systemic anaphylactic type reaction. Darla v, Barrett, et al, 2002 WL 71972 (Mich. Work. Comp. App. Com.) 2002 ACO No.12
New York: Voluntary Withdrawal From The Labor Market Bars Claim
A dental assistant who established that she had an occupational disease related to an allergic reaction to latex was denied benefits based on the fact that she “voluntarily withdrew from the labor market.” The court held that merely following the doctor’s advice to avoid latex in the work environment was a basis to deny the payment of benefits since she did not actively search for work. Dr. John Como, 2002 WL 998914 (N.Y. Work.Comp. Bd.) Case No 3001 4861 (Decided May 8, 2002)
Missouri: Treating Records Convince Court to Award Total Disability
A licensed practical nurse (LPN) was awarded benefits for latex sensitivity based upon the acceptance by the Court of credible testimony from the plaintiff’s ,medical expert. As an LPN at the Nichols Medical Center (St. Mary’s) in Jefferson City, Missouri, her work required her to make personal assessments of patients, checking dressing and surgical sites, personal care, including bathing, emptying colostomy bags and draining Foley catheters. She wore gloves supplied by the medical center. During the summer of 1990 she suffered from symptoms appearing like hay fever and “cold-like” and developed an itchy sensation in her hands. By mid-October 1990 she developed wheezing and coughing, water eyes and a runny nose. By the next of October and mid-November she was being treated in the emergency room with injections to ward off anaphylactic reactions. Soon she was being medicated with Benadryl and epinephrine. The court, in determining that the worker was totally and permanently disabled and continuing medical care, relied upon the workers’ medical expert whose findings were based upon the treatment records of three other physicians. Thebus v. St. Mary’s Hospital Center, 2002 WL 75618 (Mo.Lab.Ind.Rel.Com.) Injury No. 90-193743 (Decided January 18, 2002).
Nebraska: Subsequent Employed Held Not To Aggravate Latex Sensitivity
The appellate court sustained a dismissal of a claim made by a registered nurse against a subsequent employer for the re-occurrence of her symptoms. The trial judge held that a hypersensitivity to natural rubber latex or an anaphylactic response could not progress short of death. Ludwick v. Triwest Healthcare Alliance, et al., 2002 WL 99786 (Neb.Work.Comp.Ct.) Doc: 200 No: 1496 (Decided January 18, 2002).
Pennsylvania: Unbroken Chain of Causation Yield Benefits
The Workers’ Compensation Appeals Board sustained a finding of compensability in a claim of a medical technologist who was required to wear latex products. Even though the injured workers had an intervening exposure as a result of medical treatment to a non-work related condition, the court held that there was no break in the chain of causation to the original latex exposure. Schloer v. Suburban General Hospital, 2002 WL 416296, (Pa.Wor.Comp.App.Bd.) No. A00-2722 (Decided March 13, 2002).
1 The author, who practices in Wayne, NJ , wrote Workers' Compensation Law, 3rd ed. (West Group). He can be reached electronically at: email@example.com. Internet:http://www.gelmans.com/; Wayne, NJ, (973)696-7900; Fax: (973) 696-7988. COPYRIGHT ©2002 Jon L. Gelman