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An employee was exposed to harmful dust at work due to an inadequate ventilation system. He had also been a smoker for many years — from one to four packs per day. Can he get workers’ comp for his chronic obstructive pulmonary disease (COPD)?

The argument in this case revolved around medical opinions. However, a state appeals court said that wasn’t the only thing to be considered in deciding this case.

Clifford Rich worked at Circle R Machine Shop. His duties included grinding tools.

An OSHA inspection found that the shop’s ventilation system was inadequate to protect employees from airborne dust and the concentration of cobalt dust in the air exceeded the permissible exposure limit.

After working at Circle R for five and a half months, Rich’s breathing gradually worsened, and one day he went to a hospital emergency room.

Tests showed Rich had moderate to severe COPD.

Rich said at the time he was smoking four cigars per day. He had also smoked since age 15 and previously smoked one to two packs of cigarettes a day. A medical history given by Rich two years earlier states he used to smoke as much as four packs a day.

What the medical pros said

A doctor stated Rich’s smoking history most likely caused his breathing problems. However, the doctor also said he was not able to rule out possible dust exposure as the cause of the lung problems.

An advanced practical nurse wrote in a report that Rich was having difficulty breathing when he was around the dust at work.

The doctor eventually recommended a job change.

A key in the case was a report from the nurse who wrote that Rich “continues to work in an environment that is most likely the main contributor to this shortness of breath and he has not changed his working environment at all.”

An administrative law judge found the dust exposure did not cause Rich’s COPD, but it did temporarily aggravate it. Aggravation of a preexisting condition is compensable. The company was ordered to pay workers’ comp benefits, and it appealed the decision. It was upheld by the full workers’ comp commission, and the company appealed again to a state court.

That court noted, “An employer takes an employee as he finds him, and employment circumstances that aggravate preexisting conditions are compensable.”

The judges also noted that the nurse stated Rich’s employment was “most likely” the cause of his problems. That was enough to satisfy the question of whether his COPD arose out of and in the scope of employment.

The court said the language used by the nurse is more definitive than terms such as “may,” “could” or “possibly” that the state’s supreme court had held do not meet the requirement.

The judges also said in addition to the medical opinions, there was other evidence to support the commission’s decision:

• the OSHA finding that the dust was above permissible limits
• the inadequate exhaust system, and
• testimony that an employee who held Rich’s job before him had also experienced breathing problems.

The ruling: Rich should receive workers’ comp benefits.

What do you think about the court’s ruling? Let us know in the comments below.

(Qualserv v. Rich, Court of Appeals of Arkansas, No. CA 11-311, 9/21/11)

Tags: breathing, chronic obstructive pulmonary disease, cobalt dust, COPD, Workers' comp