A worker who claimed that her chronic sinusitis was caused by workplace exposure to bacteria can’t collect workers’ compensation because there wasn’t enough medical evidence tying her illness to her job.
The Supreme Court of Kentucky affirmed the state Workers’ Compensation Board’s decision to deny the worker’s claim because she failed to prove that her condition was work-related.
Multiple surgeries, procedures fail to alleviate problem
Jennifer Whisman began working at the Toyota Motor Manufacturing plant in Georgetown, Kentucky in 2011. She started experiencing sinus problems and dizziness in 2013.
Whisman’s symptoms continued into July 2014, resulting in:
- migraine headaches
- dizziness
- fatigue, and
- facial swelling.
She began treatment with Dr. Ronald Shashy, who reported that Whisman had weight gain, vision loss, eye pain, ear drainage, and hearing loss. Shashy’s diagnosis was chronic sinusitis, mucus retention and chronic rhinitis.
From July through September 2014, Whisman underwent several procedures and surgeries to address her nasal problems. However, none of these procedures alleviated Whisman’s problems.
Shashy’s notes throughout this period indicated that Whisman reported a history of exposure to mold in her home, although she denied remembering making that statement.
Doctors find pseudomonas bacteria in her sinuses
In 2018, Whisman was referred to Dr. Leslieann Asbury, an ear, nose and throat (ENT) specialist. Asbury diagnosed seasonal allergic rhinitis due to fungal spores, a history of sinus surgery and dizziness.
By 2019, Whisman was frequently missing work due to recurring sinus infections. At this point, she began treatment with Dr. Michael Cecil, a board-certified ENT. Cecil found the presence of pseudomonas, a common bacteria found in soil and water that can cause infections, and prescribed numerous courses of antibiotics.
Cecil performed an endoscopic revision surgery on Whisman’s sinuses in March 2020 to provide a more open ventilation path. He also performed four more procedures to clean and irrigate her sinuses. In January 2021, Cecil diagnosed chronic sinusitis and noted that Whisman smoked a half pack of cigarettes per day.
‘Theoretically exposed while working at Toyota plant’
In Whisman’s 2021 workers’ compensation claim, Cecil said that Whisman was theoretically exposed to pseudomonas while working at Toyota, based on what Whisman told him during treatment. He declared that Whisman was able to return to work after he found her sinuses were normal. Cecil noted that he was unsure whether pseudomonas was “merely present in her sinuses or was what was causing Whisman’s symptoms, noting she had sinus problems for a long time.”
During her treatment, Whisman told her doctors that she had contacted OSHA and had certain machines tested at Toyota. Those tests revealed the presence of pseudomonas in a coolant used in the manufacturing process. The doctors referenced the OSHA report, but none of them attached copies of it to their notes and it wasn’t submitted as evidence in court.
In May 2020, workers were allowed to return to the Toyota plant following a shutdown during the COVID-19 pandemic. At that time, Whisman’s infection had cleared and she returned to work. However, the pseudomonas infection returned in June and again in September 2020. Her last day of work before she went on medical leave and long-term disability was September 11, 2020. Cultures from her sinuses taken in April and June 2021 still showed pseudomonas growths.
Whisman filed for workers’ compensation in April 2021, claiming that her condition was caused by exposure to vapors and mists at the Toyota plant. She said she couldn’t return to work due to:
- dizziness
- blurred vision
- breathing problems
- swelling
- throat clearing
- drainage
- nose blowing
- swollen glands, and
- facial pain.
No indication of bacteria in work area before 2020
An independent examination by Dr. Sanford Archer, a board-certified ENT, found that Whisman’s condition and complaints weren’t due to her work environment. Archer also said that Whisman had the physical capacity to return to work with no restrictions.
Archer testified that he didn’t agree with the diagnoses of Whisman’s doctors because:
- sinusitis can be caused by a number of different factors, and
- pseudomonas is a common bacteria found in many different places in the everyday environment.
In addition to Archer’s testimony, Toyota provided evidence that Whisman’s sinusitis began no later than July 2014, but she didn’t begin working in the area where the coolant was present until 2017. The company also said there was no pseudomonas found in any coolant in that area until 2020.
Judge denies claim over lack of evidence
Toyota argued that between Archer’s testimony and the lack of evidence of exposure to pseudomonas at work in 2014, there was no proof that Whisman’s sinus problems were work-related.
An administrative law judge agreed with Toyota and denied the claim on May 31, 2020. The judge said there was no doubt Whisman had chronic sinusitis, but any link between it and her job was questionable. The state’s Workers’ Compensation Board affirmed the judge’s decision.
Whisman appealed with the Kentucky Court of Appeals. The court also affirmed the judge’s ruling based on the lack of evidence connecting her illness to her work. Whisman filed an appeal with the state’s Supreme Court, arguing that she met her burden of proving that her condition could have been caused by a workplace exposure to pseudomonas.
Supreme Court: Her own doctors weren’t sure it was job-related
The Supreme Court of Kentucky ruled that the judge didn’t err in denying Whisman’s claim.
The court said that “the operative question in this case on review has always been whether the evidence was so overwhelming that it compelled a favorable finding.” The answer, according to the court, was that the evidence wasn’t overwhelming.
For example, even if it was to disregard the results from the independent examination, some of Whisman’s doctors pointed out that they weren’t sure her sinus issues were related to her job. Further, they testified that they were basing that connection off of the information she was providing to them.