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Little v. Workers' Comp. Appeal Bd. (Select Specialty Hospital)

Commonwealth Court of Pennsylvania

March 25, 2015

Nancy Little, Petitioner
Workers' Compensation Appeal Board (Select Specialty Hospital), Respondent

Submitted January 9, 2015

Appealed from No. A12-0069. Workers' Compensation Appeal Board.

Ronald P. Carnevali,l Jr., Johnstown, for petitioner.

Gregory Zohoranacky, Pittsburgh, for respondent.




Nancy Little (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed an order of a Workers' Compensation Judge (WCJ) granting Claimant's claim petition for a closed period. The WCJ determined Claimant suffered temporary periods of total disability as a result of occupational asthma caused by her work exposure to Di-Isocyanate, a chemical component of a floor wax product used by Select Specialty Hospital (First Employer). Claimant contends the WCJ erred in terminating her benefits on the basis that the acute effects of occupational exposure to Di-Isocyanate resolved. Claimant asserts she cannot return to her pre-injury job because of her ongoing sensitivity to

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Di-Isocyanate and the risk of further asthma symptoms. Claimant maintains that as a consequence she continued to suffer a loss of earnings where her present, part-time position pays less than her pre-injury position. For the reasons that follow, we reverse and remand.

I. Background

Claimant, a licensed registered nurse, performed nursing duties for First Employer, a long-term acute care facility, for a period of approximately four years prior to one day in late April 2010, when she began experiencing breathing difficulties. Claimant reported to her supervisor and then went directly to the emergency room at the Conemaugh Valley Memorial Hospital. There she received treatment with a nebulizer machine that assists with breathing in order to open up a patient's airways. Claimant's condition improved, and she returned to work after a couple of days.

While working as a charge nurse on May 27, 2010, Claimant again experienced sneezing and coughing. Claimant noticed a housekeeping employee waxing the floors. Claimant again advised her supervisor that she needed to go to the hospital emergency room. Claimant received three nebulizer treatments. Claimant also received intravenous steroid medication that decreases inflammation in order to improve breathing. Emergency room personnel referred Claimant for further treatment, including examinations by a pulmonologist, Dr. Jessica Bon (Pulmonologist). Claimant did not return to work until June 18, 2010.

On August 4, 2010, Claimant experienced a third episode with symptoms similar to the first two episodes. Claimant again received treatment in the emergency room. This time, Claimant's condition was worse than the prior episodes. Claimant again received three nebulizer treatments and other medications. However, Claimant did not return to work with First Employer.

First Employer initially issued a notice of compensation payable (medical only, no loss of wages) describing Claimant's injury as an inflammation of her lungs resulting from " an allergic reaction to the floor wax." Reproduced Record (R.R.) at 77a. In October 2010, Claimant filed a claim petition alleging she experienced an allergic reaction to floor wax used in her place of employment. Claimant sought total disability for the time she missed work in May and June 2010, and total disability benefits following her last day of work in August 2010. In response, First Employer issued a notice of compensation denial. Thereafter, First Employer filed an answer denying the material allegations of the claim petition.

In November 2010, Claimant obtained a part-time position with Altoona Hospital (Second Employer). At her job interview, Claimant explained she left her job with First Employer because of her reaction to the floor wax First Employer used. Second Employer, which used the same product, immediately changed the floor wax it used. Thereafter, Claimant experienced no breathing problems while working for Second Employer.

Before the WCJ, Claimant testified on her own behalf and submitted a medical report from a toxicologist, Dr. Anthony F. Pizon (Toxicologist). In his report, Toxicologist stated (with emphasis added):

I have had the pleasure of evaluating [Claimant] in the Medical Toxicology Clinic on October 5, 2010. My conclusions are based on my exam of [Claimant] and the history she provided. She also provided Material Safety Data Sheets on several chemicals used at your place of employment.

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[Claimant] clearly has occupationally-induced asthma from her exposure to Gloss-Tek 100 Part A. Gloss-Tek is used as a floor care product and contains di-isocyanates. The association between asthma induction and di-isocyanates is well known.

R.R. at 74a.

The WCJ found Claimant's testimony credible and accepted Toxicologist's opinion as fact. See WCJ's Op., 1/03/12, Findings of Fact (F.F.) Nos. 6, 7. Thus, the WCJ found Claimant suffered a disabling work-related injury as a result of her exposure to Di-Isocyanate, a chemical in Gloss-Tek Part A, a floor care product used by First Employer. F.F. Nos. 4, 7.

Further, the WCJ noted, First Employer submitted a medical report from Dr. Steven Basheda (IME Physician), a pulmonologist who performed an independent medical examination (IME) of Claimant in February 2011. See F.F. No. 5. IME Physician examined Claimant, took her history and reviewed her medical records. Id. Ultimately, he agreed with the diagnosis of " occupational asthma secondary to [Di-Isocyanate]." R.R. at 102a. IME Physician also believed that Claimant's asthma was directly related to her work place exposures. Id.

Nonetheless, IME Physician opined, within a reasonable degree of medical certainty, that as of his February 23, 2011 examination, Claimant fully recovered from her work-related injury and had no pulmonary impairment or disability. F.F. No. 5; R.R. at 103a.

Consequently, the WCJ determined Claimant carried her burden of proving she sustained a compensable injury in May 2010 in the nature of occupationally-induced asthma as a result of her exposure to the chemical Di-Isocyanate. WCJ's Op., Conclusion of Law (C.L.) No. 1. To that end, the WCJ observed, the parties' medical experts agreed that Claimant's exposure to Di-Isocyanate caused her disability. C.L. No. 2. Therefore, the WCJ awarded Claimant total disability benefits for the time she missed work starting with the first two incidents in April and May 2010, and from the third episode on August 4, 2010 until November 10, 2010, when she began working part-time for Second Employer. Thereafter, the ...

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