An employee’s doctor says his lung condition was caused by chemical exposure when he was power washing a roof. His employer’s doctor says it was infectious pneumonia and had more to do with the worker’s two-pack-a-day, 30-year smoking habit. Will the employee get workers’ comp?
No doubt workers’ comp cases involving respiratory problems are tricky. But when a smoker is involved, things can get even more complicated.
Garry Hall was told to power wash the roof of a building owned by his employer, Nesco, Inc., in Tennessee.
He spent four days using a chemical cleaning solution to remove bird droppings, black mold and other debris from the roof.
He poured an “odorous, unidentified cleaning solution” onto the roof and then scrubbed it with brooms. The final step: rinsing it with a power washer.
Hall didn’t wear any protective gear. By the end of each day, his clothes were “soaking wet.”
Also, chlorine and ammonia were used inside the building on a regular basis. Air from a room into which chlorinated water drained was vented through a downward facing vent on the side of the building near the roof.
During the last two days of power washing, Hall had shortness of breath and weakness.
When his symptoms became worse, he saw a doctor who told him to go to the emergency room. Hall was diagnosed with pneumonia and admitted. He was hospitalized for two weeks.
Hall was put on antibiotic therapy as well as medication for his underlying smoking-related chronic obstructive pulmonary disease (COPD).
Hall started smoking at age 13 and smoked two packs a day for more than 30 years. He was 45 when he was admitted to the hospital.
Dr. David Henson, a board certified pulmonary critical care doctor with 30 years’ experience, became Hall’s treating physician. The doctor tested Hall for bacteria that causes pneumonia, but the test came back negative.
Also, the antibiotics weren’t making him better. A CT scan showed a pattern that would indicate interstitial lung disease which isn’t usually caused by an infection and eventually causes scarring of the lungs.
The doctor added a course of steroid treatment to his medications. After that, Hall started to improve.
The success with steroid treatment helped Dr. Henson confirm Hall was suffering from interstitial lung disease and not pneumonia.
Hall also underwent tests to determine whether his illness was due to COPD or interstitial lung disease. The test showed Hall was having trouble inhaling air into his lungs.
COPD impairs a person’s ability to exhale. The test confirmed the diagnosis of interstitial lung disease, and Hall’s COPD wasn’t detected.
Dr. Henson said Hall had “a permanent anatomical impairment of 55% to the body as a whole as a result of his work accident” and recommended he work only where he isn’t exposed to any kind of environmental toxins. The physician also recommended Hall not return to his previous job, which was primarily as a machine mechanic.
Two doctors, two opinions
Nesco hired its own doctor to look into Hall’s condition. Dr. Jonas Kalnas is a board certified in occupational and environmental medicine. He works primarily as a consultant and doesn’t treat patients.
Dr. Kalnas reviewed Hall’s records, examined him for 3.5 hours, and ordered more tests including another CT scan and a pulmonary function test. This was more than a year after Hall’s hospitalization.
The second CT scan showed no evidence of interstitial lung disease, and the pulmonary function test showed COPD, according to Dr. Kalnas.
Dr. Kalnas’ diagnosis was that Hall acquired a respiratory infection, specifically, pneumonia. He said Hall had a 45% anatomical impairment to the body as a whole which he attributed entirely to Hall’s smoking.
Hall applied for workers’ comp benefits. Nesco denied the claim based on Dr. Kalnas’ findings.
The case went to a Tennessee trial court. Immediately after hearing testimony from both doctors and without taking any additional time, the judge ruled in favor of Hall, finding Dr. Henson more credible than Dr. Kalnas because Dr. Henson was Hall’s treating physician. The court awarded 92.5% permanent partial disability benefits to Hall. Nesco appealed to the special workers’ comp appeals panel of the Supreme Court of Tennessee.
The appeals panel agreed with the trial court. It noted that, while both doctors were well qualified, Dr. Kalnas examined Hall just once, more than a year after his hospitalization.
In its opinion, the court wrote:
“Dr. Henson, employee’s treating physician, opined that employee’s employment was the most likely cause of the injury. Employee testified that his symptoms began shortly after he began working on the roof. Despite Dr. Kalnas’ testimony to the contrary, the evidence does not preponderate against the trial court’s finding that employee’s lung injury is causally related to his employment.”
Hall received permanent partial disability benefits under workers’ comp.
Have you ever dealt with a case in which the question was whether a workers’ smoking or workplace chemical exposure was the cause of respiratory problems? What do you think about the court’s decision? Let us know in the comments.
(Garry Hall v. Nesco, Inc., Supreme Court of TN, Special Worker’s Compensation Appeals Panel, No. M2012-02368-WC-R3-WC, 7/7/13)