Employers Choked by Commonwealth Court Pulmonary Case Decision

By Ross A. Carrozza, Esq.*

On March 25, 2105, the Pennsylvania Commonwealth Court decided Little v. WCAB (Select Specialty Hospital), 113 A.3d 1 (Pa. Cmwlth. 2015). This case impacts breathing cases in the defense community.

The facts of Little reflect that the claimant was a licensed registered nurse who performed nursing duties at a long-term acute care facility (first employer). After working there for four years, she began to experience breathing difficulties. She reported this to her supervisor and then went to the emergency room for treatment. Her condition improved, and she returned to work after a few days.

About a month later, she had another flare up, this time with sneezing and coughing. She noted, at the time, that housekeeping had been waxing the floors at her workplace. She again went to the emergency room, received treatment and was referred to a pulmonologist.

About three months after the second episode, the claimant experienced a third episode, in August of 2010, which was similar to the first two episodes. Again, she sought treatment in the emergency room. She received treatment and medications but did not return to work with the first employer.

The first employer issued a Notice of Compensation Payable, medical only, describing the injury as inflammation of lungs resulting from allergic reaction to floor wax. In her Claim Petition, the claimant alleged temporary total disability.

The claimant then sought and received a part-time position with a different employer. At her job interview with this new employer, the claimant explained the problem with the floor wax at the first employer, and the second employer immediately changed their floor wax. The claimant experienced no breathing problems while working for the second employer.

The claimant’s medical expert testified that there was clearly an occupationally-induced asthma from her exposure to the chemicals in the floor wax. The Workers’ Compensation Judge found the claimant’s testimony to be credible and also found the claimant’s medical expert to be credible. Therefore, it was determined that she sustained a disabling work-related injury resulting in her exposure to that chemical.

The first employer’s expert also agreed that the claimant’s asthma was directly related to her workplace exposure. However, that IME physician opined that the claimant had fully recovered from the work injury and had no pulmonary impairment or disability. Consequently, the Workers’ Compensation Judge found that she had sustained an injury of occupationally-induced asthma from her exposure but had fully and completely recovered as of the time the IME.

At the Workers’ Compensation Appeal Board level, the claimant argued that her benefits were improperly terminated because she could not return to her pre-injury position with the first employer due to her asthma and ongoing sensitivity to the chemicals used in the floor wax. Thus, she alleged an ongoing wage loss resulting from her lower paying position with the second employer. The Appeal Board denied the claimant’s appeal, relying on the IME physician’s opinion of recovery. The Appeal Board reasoned that the Workers’ Compensation Judge determined that the claimant’s injuries had resolved and her condition had returned to baseline.

On appeal to the Commonwealth Court, the claimant argued that it was error to terminate her benefits because she was incapable of returning to her pre-injury position due to her allergic sensitivity to the chemicals in the floor wax which resulted in a continuing loss of earnings. The claimant argued that she did not have any asthma until she was exposed to the floor wax chemical at her first employer’s workplace. Both experts had agreed that the claimant should avoid exposure to that chemical in the future. Medical evidence reflected that a repeat exposure could result in a more severe and potentially life-threatening reaction. The employer relied on the IME physician’s opinion of full recovery in their argument.

In analyzing the case, the Commonwealth Court noted that it differed from those cases where a pre-existing condition returns to baseline. In such an instance, the termination of benefits would have been appropriate. In Little, the claimant did not have a pre-existing asthmatic condition, or any work-related medical restrictions, prior to her work injury. Rather, the claimant had developed allergic asthma and an ongoing sensitivity to the floor wax chemical as a direct result of her job. Thus, despite normal pulmonary function, the claimant had ongoing sensitivity that prevented her from doing her pre-injury work and, therefore, supported the decision to award ongoing partial disability consistent with her earnings at the second employer.

Significantly, the court noted that, “[r]egardless of whether the claimant lacks current pulmonary symptoms or does not need current treatment, these are residual medical conditions that claimant did not have prior to her employment with first employer.” The court went on to hold that, since both experts had agreed that the claimant developed allergic asthma and could not return to her pre-injury work environment as a result of cumulative occupational exposure to the floor wax chemicals, the Workers’ Compensation Judge’s determination that the claimant fully recovered without residual impairment was contrary to the credited evidence of record and was erroneous as a matter of law. Thus, termination was improper and required reversal with instructions to remand for an award of additional benefits.

Based on Little, in pulmonary cases it is important to analyze whether your facts indicate that the claimant has a pre-existing condition that is aggravated by work exposure, or whether a new condition developed as a result of the ongoing exposure over time to chemicals at the workplace, resulting in the claimant’s sensitization that could cause future flare-ups. In the first instance, once the claimant’s symptoms have resolved, termination is appropriate. However, if there is an ongoing sensitization and the claimant cannot return to his/her work environment, there is an ongoing disability exposure that should be recognized.

*Ross, a shareholder in our Scranton, Pennsylvania office, can be reached at 570.496.4617 or racarrozza@mdwcg.com.

_{Defense Digest, Vol. 21, No. 3, September 2015}

_{Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2015 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}