Should worker receive permanent disability for his asthma?
April 26, 2010 by Fred HosierPosted in: new court decision, Respiratory safety, Special Report, What do you think?, Worker health, Workers' comp
PDF 
It’s a fact: Dust, temperature and humidity factor into asthma attacks. But how can you tell if asthma is an ongoing disability?
Here’s what happened in this case:
Hughey Payne worked for the Washington Metropolitan Area Transit Authority (WMATA) as a Metro Station manager.
One summer, Payne had trouble breathing because malfunctioning air conditioning in the station created high heat and humidity.
He received a requested transfer to another station.
A year later, the air conditioning in that station stopped working, and Payne became dizzy, faint and very weak one day on the job.
He left work and hasn’t returned since on advice from his doctor that he should avoid the “dusty, underground station,” and that he needs to work in an environment “without temperature extremes to avoid worsening of his asthma.”
Payne filed for and received disability benefits.
An administrative law judge (ALJ) made these findings:
- Payne’s injury arose out of and in the course of his employment
- His physical condition “is medically causally related to the work incident” (malfunctioning air conditioning)
- His exposure to dust and excessive heat while working as a station manager aggravated his asthma, and
- The medical evidence supported Payne’s claim that the work exposure to dust and heat prevented him from returning to work in the Metro tunnels.
His employer, WMATA, appealed.
It presented testimony from a certified industrial hygienist that the dust levels inside the Metro stations were 1/100th of the limit set by OSHA.
The ALJ again ruled in favor of Payne, saying that the hygienist wasn’t a medical doctor and couldn’t determine whether those dust levels were sufficiently low for Payne to return to work.
The case eventually went to the District of Columbia Court of Appeals.
It noted that one of the doctors in the case was asked: If a person is affected by dust, and a report says a work area meets OSHA air quality standards, would that person be released to go back to work? The doctor replied in that case, it wouldn’t be the dust that was causing the asthma problem.
On top of that, the appeals court found the ALJ had used the wrong burden of proof to determine whether Payne’s disability was ongoing. For that reason, the ALJ couldn’t discount the testimony from the industrial hygienist.
The case has been sent back for a rehearing. (A PDF of the appeals court’s entire opinion can be downloaded here.)
What do you think about this case? Let us know in the Comments Box below.
Cite: WMATA v. Payne, DC Court of Appeals, No. 08-AA01207, 4/15/10.
SafetyNewsAlert.com delivers the latest Safety news once a week to the inboxes of over 270,000 Safety professionals.
Click here to sign up and start your FREE subscription to SafetyNewsAlert!
Tags: asthma, dust, permanent disability, temperature and humidity
Loading ...
April 26th, 2010 at 8:39 am
[...] the rest here: Should worker receive permanent disability for his asthma … Posted in industrial safety | Tags: appeals, case, entire-opinion, industrial safety, [...]
April 26th, 2010 at 9:33 am
The problem seems to be the air conditioning. When the air conditioning is working properly the asthma is not a problem. The proof is that Payne worked without incident for a full year before the asthma attack happened. The solution is simple. On days that the air conditioning is not working properly he gets paid time off FREE. When the air conditioning is fixed or conditions permit him to go back to work then the free time off ends. This benefits everyone. Payne gets free paid time off, everyone else gets the benefit of the company fixing the AC ASAP and the company keeps a good experienced worker.
April 27th, 2010 at 8:18 am
This is another example of that entitlement mentality. The guy can’t work for the WMATA but it does not mean he can’t work some place else. We wonder why companies move jobs out of the country, with decisions like this is one of the reason.
April 27th, 2010 at 10:12 am
Asthma is not just about dust. As an asthmatic, if dust were the only irritator, I would be ready to die nearly every day as I live in the dust bowl region of the country. My asthma was far worse in other regions of the country that have more moisture in the air.
As far an entitlement, this case only just hit the books…which means there are probably no JOBs for this guy avaliabe in the DC district that ift his skills and his doctor’s requirments. I am sure if this guy could find a job he would be right back at it…in a clean, Air Conditioned building. As he was a manager he has skills, but with so many people laid off in the buisiness/finance industries right now the job market is horriable and everyone is scrapping after every job they can get. I would like to give the guy the benefit of the doubt that this course of action was only to protect his family and not because he likes to be unemployed. Besides it was the doctor that told him not to go back. And if his asthma is that bad…better workmans comp then paid death benefits and lawsuit that direction for his foolish stubborness not listening to doctors advice. Asthma does lead to death all too often…espically if it is worstening. It is so easy to forget a RESCUE inhaler…There is a good reason it is called a RESCUE inhaler, becuase it literally rescues you from asphyxia. Every year hundreds of hospital beds are given to asthmatics that ignore their doctors advice to avoid poor air quality.
Hey Bob…ever had an asthma attack? If not you cannot understand how horriable it truly is. As someone that has had to leave a good job because of helath related issues I understand his plight…but I had to change jobs in an UP ecconomy. BTW…jobs move oversees because of tax breaks and leaner workers rights laws: ie they don’t have to carry workers comp insurance in most foreign markets. Not because deserving people actully recieve their benefits.
It seems in this case the only ones winning are the lawyers…wonder if the WMATA appealed on advice of their lawyers (who gets paid if he wins or looses). Too bad we cannot send them oversees and forget the return ticket.
April 27th, 2010 at 10:16 am
I like spinners idea…only instead of time off…send him to another station as a ticket agent or something. Light duty. Desk duty. You see that in all sorts of industries when someone gets hurt. I am sure in WMATA really looked there would be something he could do somewhere else that would not threathen his health. That would require creative problem solving on the part of the company and they would have to work with him and most companies today prefer to stick you in you pigeon hole and forget you. Espically transport agencies.
April 27th, 2010 at 10:37 am
I am myself an asthma sufferer. Some days good some days bad. I agree that the company should know when he AC is working or not and schedule this man accordingly. If it affects someone with Asthma the air quality is probably not healthy for anyone else using the subway either. It should be a top priority to keep these systems in proper working order. a little PM on the air conditioning system may have saved the company an awful lot of money.
April 27th, 2010 at 10:45 am
In this case it appears that the WMATA tried to work with him. After the second attack he just walked away and filed for permant workmans comp. Temporary maybe, but not permant. As for the Doctor that testified, when it was pointed out the dust levels were in low levels. Changed to then something else is causing the asthma. What else caused it? As a Doctor it was his job to find out what the cause was in order to be crediable when he testified.
April 27th, 2010 at 11:30 am
If all asthma were caused by a lack of air conditioning, 90% of the people on earth would have asthma. The same stats would apply to dust and humidity. Mr Paynes’ Asthma sounds like an ongoing problem that has existed for years and will continue to exist for the rest of his life. It can be aggravated by dust, heat, humidty and stress. In fact it can be aggravated by stress alone. Paying Mr. Payne to stay home and work in his garden for the rest of his life will expose him to heat, humidity and dust, but it should relieve his stress. I suggest WMATA retrain Mr. Payne to a different job or location away from the heat, humidity and dust, then fire him when his absenteeism continues to be a problem because he really doesn’t want to be at work. My wife and I both suffer from asthma. Cigarette smoke and stress cause most of our coughing episodes. The temptation to milk our employers while we relax at home is almost over-powering. My wife’s work found a way to let her work from home. She still has asthma attacks, but she can’t blame the company for them any more.
April 27th, 2010 at 11:35 am
I find it absurd that the judge ruled that his “injury” occured during the course of employment and this was his number one finding had an obvious impact on his decision.
Of course it’s going to occur during the course of employment if the guy is working. Are all medical conditions the result of employment? Of course not! If you work and develop a condition, it does not mean that it was caused by working. How about hereditary issues or simply being born with it? I had a heart attck at the age of 35…doesn’t mean that my career as a firefighter was the cause, even though some people like to believe so. Sure there are many factors that could have contributed to it…But I;m sure the bratwurst and sausages that I consumed dang neatr since birth did not help matters. Or, the 20 years of smoking…
Fact is, people develop medical issues while being employed that are not the result of employment…
How about this? Did this guy have asthma as a kid? Was he obese? Was he a smoker? Sure the conditions he was exposed to agravated it, but it wasn’t the dust…my god the PEL was 1/100th…But the judge pretty much saw no relevance of that figure. Does this guy need to work in a vacuum? Bottom line, the enviroment did not cause his asthma.
My conclusion is that we need more past medical history of this gentleman. We also don’t know what his position description says. It could contain language that may reflect a hot humid environment.
But based upon the given information, I beleive he should not get workman’s comp benefits and should be placed in an enviroment that is comensurate to his asthma.
Why the company did not do this beyond me…
April 27th, 2010 at 11:44 am
Hey becca, my youngest son is asthmatic at 2 yrs of age he was life lined to St. Vincents and spent 3 days in ICU and another 2 in the PEDS unit, even now as a teenager we still find our selves in the ER at least once a year. So get off your high horse before you fall off, you came up with the solution yourself, find another job that doesn’t aggravate the asthma. duh. Becca is right, asthma is a serious health condition that can and has led to countless deaths, people who have asthma/breathing problems are triaged ahead of almost everyone else in ER when they come in.
April 27th, 2010 at 11:46 am
“I am sure in WMATA really looked there would be something he could do somewhere”… Um, ever worked under a union contract? Have you heard of red tape? It truely can be cheaper at times to park his butt in an easy chair. Same kinda crap that put GM under, now we all get to pay.
The A/C is a perk! If every company had to cater to every special needs worker, the economy would be in shambles, Oh wait… it is! At the same time, however, it’s plumb stupid that the company, knowing the man’s condition, could not take steps to ensure the reliability of the A/C. But, again, there’s the red tape. Really it should be his handelers that have to find him another job.
April 27th, 2010 at 11:52 am
Testing sure…but where do you draw the line. How do you test for the cause of asthma? I do not believe that it is as simple as an alergy test with blood. You would likley have to subject the suffer to the stimulant and see if you can induce an ansthma attack. As someone who has worked in environments that “pass OSHA standards” I find the fault in the the levels OSHA considers acceptable. But then again as an asthamatic I may be a little sensitive here. Alot of times it is impossible to isolate the real cause to one problem. In his case it might have been a compounded affect of the heat, humidity, and dust. I must admit that these three are my trifecta for a bad day. How do you avoid these? AC of course. And after an attack, it can take hours to recover even in a clean air space to get the elephant on your chest feeling to go away.
BTW…was it workmans comp…I thought that it was dissability. My mistake from before. I would still rather have someone on disability then dead. These are two different systems and insurances. If his working conditions were contributing to the deveopment of his asthma (ie he did not have it before working there) then it is disability as he can no longer work in that environment due to the decline in his health due to the working conditions. In addition we have no idea how much more seveir the second reported atttack was to the first one. If it was significantly worse and was starting to intefeir with my regualr daily activities…I might considering filing too…and I have worked my entire life. Once on disability he may qualify for re-education training…so he is more qualified for what jobs are out there that can accomidate his work place requirements. On this point, I don’t know.
There is alot of information missing in this case. Don’t be to quick to judge this person or this company. WMATA has been dealing with alot of other issues. It may have been at the time the problem presented itself they were occupied with otter more pressing matters. Didn’t they have a train crash last year…something with a system malfunction? Perhaps they were atytending to that at the time he was told to change work environemnts…and the company was not able to accomidate because NTSB was up in their face…one workers needs vs. NTSB…I would probably be focused on NTSB to avoid loosing licensing, getting fined more…etc.
Just a reminder: This case is to serve the rest of us as an example of how to work with our employees and to protect our company and selves from this problem, where ever possible. Light duty, perhaps put him on customer satisfaction survey duty at a different station…supplemental training…but we don’t have the whole story and likley never will…so don’t judge to quickly.
April 27th, 2010 at 12:02 pm
I am an asthmatic for about 24yrs now, I worked in the concrete block industry for 11 yrs. Sorry to say, this person needs to find another job, the work place DID NOT cause him to have asthma…only the asthma attack. I do not believe all of the proper credentials were given to the ALJ, he is not a doctor either. If you take the proper maintenance medicines, pickup on the signs when you may be having an attack and use your emergency inhaler you should be good to go. Did this employee maintain his asthma? Did he do his follow ups and/or see his physician atleast 1x per year? If the A/C was out, did he notify facilities or his chain of command to report it? I practice what I preach and it has been almost 10 yrs now since I have had an asthma attack.
April 27th, 2010 at 12:14 pm
Tim go back up and read the story again:
“Payne had trouble breathing because malfunctioning air conditioning in the station created high heat and humidity.”
This alone can kill a severe asthmatic.
April 27th, 2010 at 2:15 pm
Hey Linda I read the story I am aware of what you say. But it does not change my opinion. Now you go back and read the story and see how often dust is mentioned. And exactly what the good Doctor testified to.
April 27th, 2010 at 2:35 pm
The original question is wether the worker deservs permanent disability for his asthma. His asthma is only a problem when he is around high heat and humidity. If the air conditioning is working properly and it does seem to work properly nearly 100% of the time then asking for permanent disability is rediculous. Permanent disability should only go to people who can no longer work. He was perfectly capable of working 99% or beter of the year while the AC was working. He was capable of working 100% of the year at any other job site.
accomodations - Yes.
permanent disability- No.
April 27th, 2010 at 7:46 pm
These comments just illustrate what is wrong with this country. No one can even agree whether the dude is entitled to benefits or not…No wonder we have screwed up politicians and judges….. why don’t we all just keep the debate going now. Some workers know how to play the system. Move the guy to a better location, rehab him and get him off the system.
April 28th, 2010 at 10:29 am
Scott Smith,
Asthma is not caused, you are born with it. The humidity and dust and such aggravate it into flaring up. It’s the tissue in tubes in your lungs that get inflammed. It never goes away entirely.
I was asthmatic as a child. I had only one attack in my entire life when I was five and never had another incident. For awhile I was told that I grew out of it. That’s not exactly the case. When ever I get a cough it sometimes becomes cronic and have to use something like Premacort to get rid of it. I think I just have a strong constitution because other then that I rarely get sick. For a little while after that one attack I did have to have an inhaler available just incase but since it didn’t happen again we discontinued buying them. I think we just threw the original one away. I was lucky. Probably wouldn’t have had that one occurrance except my mother was a smoker.
I’ve known asthmatics that had to have oxygen bottles available all the time.
April 28th, 2010 at 12:17 pm
sheralroh.
No one has directly stated that the gus is entitled to benefits. (other than a working air conditioner). Most if not ALL posters here agree with your asessment (including myself FWIW).
April 28th, 2010 at 2:55 pm
Why is it the responsibilty of the employer at all. When did A/C become a right in the workplace. As with all of these news stories We can not make an informed decision as they leave out so many details.
Why
April 28th, 2010 at 3:39 pm
Why.
I made an assumption about the AC. I assumed that the area he was working was adjusted to what americans believe to be a normal office work temperature (75deg F - 85 deg F) when the air conditioner was working properly. I assumed that when the AC failed the temperature rose to a level that would normally require testing or time exposure limits l ike say 110+ deg F. Absolutly none of my assumptions were in the article they came entirely from my own imagination and experience.
April 28th, 2010 at 5:23 pm
“Why is it the responsibilty of the employer at all. When did A/C become a right in the workplace.”
American’s with Disabilities Act. This may be an overstatement of the scope of this law but with ” 7% of the population of the United States…Asthma causes 4,000 deaths a year in the United States” (wikipedia) providing good air quality and general employee comfort is just good business and can contrubute to increased productivity. Most work places I have encountered try to keep most working areas between 65-85deg F and this is reasonable in most industrial and professional settings. Industrial areas where prolonged heat excedes 95 typically carries some sort of health check first (atleast where I have worked it has). I know that I would not want to work with anyone with a heat related health risk working in metals smelting, casting, or other furnace related industries as their health problems place everyone at risk.