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April 01, 2000 3:35 PM
A Latex Decision Traveling Back To The Past Instead of Into The Future

Delaware has always been known to be a corporate-friendly state, and a recent opinion in a latex claim continues to reflect that bias. The Superior Court of Delaware's ruling affirming the Industrial Accident Board's denial of benefits to a tire worker, who had been diagnosed with a latex allergy, reflects an archaic application of the rules of evidence that is inconsistent with current legal thinking. Richard Smith was employed on May 12, 1997 as a tire repairman by Service Tire Truck Center, Inc. 

He was required to repair tires that had sustained blowouts or punctures. In the repair shop Smith would drill the damaged tire, insert a plug, and then, with his head inside the tire, buff the inside liner with the use of an air buffer in order to produce an abrasive service so that he could patch it. During this process, dust and dirt would be produced. Approximately three months after he commenced work, in August 1997, he suffered a dermatological reaction in the form of hives which appeared all over his body. 

The condition continued to worsen and 4 days later his lips and hands swelled, a rash developed all over his body, and he became short of breath. He was unable to work for several days. After returning to work approximately 13 days later, he once again developed a systemic rash, his lips and hands became swollen, he developed shortness of breath, and he vomited and became unconscious. He was admitted to the hospital with a life threatening, unspecific allergic reaction. A week later he returned to the repair shop to pick up his paycheck and after 20 minutes on the premises he again developed hives, difficulty breathing and swelling of the throat. The tire repairman was subsequently diagnosed with a latex allergy. 

He presented a claim for total and permanent disability and for medical expenses as a result of his latex allergy. His ex-wife's testimony corroborated his recent adverse experiences. She stated that, except for an allergy to a cat, she was not aware of any adverse allergic conditions prior to August 1997. 

Since that date he has had allergic reactions requiring the administration of Epinephrine. His food, clothing and medical care all had to be monitored because of his sensitivity to latex. Two physicians specializing in allergic conditions testified and linked the tire repairman's latex allergic reaction to his workplace and specifically to the dust that was produced when the tires were sanded. One of these physicians was the claimant's treating physician who had written to his employer in September, 1997 alerting the employer to the fact that the petitioner was so allergic that he could not work. 

Additionally, an examining physician, board certified in occupational medicine, diagnosed the worker with a latex allergy but could not provide an opinion as to causal connection since she "was unable to find any other cases of tire workers developing" a latex sensitivity. The trial court denied the compensation claim of the employee and the decision was affirmed by the reviewing tribunal. Smith v. Service Tire Truck Center, Inc., 2000 WL 145817 (Del. Super. 2000). The Superior Court indicated that there was a lack of evidence that the employee's job placed him into a greater risk of developing latex sensitivity and that, even if the condition was preexisting but latent, there was insufficient evidence to indicate that the job aggravated or triggered the condition. 

The court's rationale discriminates against a person's genetic makeup rather than adopting sound scientific principles. This decision leaves the individual with an allergic predisposition responsible the hazards of the employment even if the risks are known only to the employer and denies them workers' compensation benefits. This proposition runs contrary to the social, remedial, "no fault" principles of the workers' compensation system that were adopted across the United States in 1911 to protect the worker from the risks of employment and encourage a safer working environment. It also ignores the testimony of the treating physician and fails to give it the adequate weight it deserves. Furthermore, the Delaware court's reasoning neglects to adopt the current trend of the majority of legal thinking which is that latex sensitivity is not an occupational disease but rather a specific compensable event involving a single exposure/risk in the workplace. It is an analysis based on an archaic interpretation that hopefully the Delaware Supreme Court, which has an opportunity to review this matter, will reverse in favor of the injured worker, giving the State of Delaware the opportunity to go forward into the future 

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