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Friday, January 9, 2009

Employee Exposed to Perfume at Work Allowed Workers' Compensation Benefits

A licensed practical nurse who suffered from preexisting pulmonary disability was permitted to recover benefits against her employer when a co-employee sprayed perfume at work. The NJ Appellate Division ruled that a licensed practical nurse was allowed to seek benefits when exposed to an employee's perfume even though the injured worker came to the employment with severe pre-existing obstructive lung disease.

The 64 year old nurse, who had smoked one pack of cigarettes daily for 43 years, had a severe reaction when a coworker sprayed herself with perfume on two occasions. The nurse subsequently became oxygen dependent and never returned to work.

The court reasoned in its opinion that the accident occurred in the course of her employment and arose out of her employment. The exposure at work was deemed a "neutral risk," one that was out of the control of the employee. The court determine that had she not been at work the nurse would not have had this exposure and reaction. The co-employee actions injured the nurse the court held and that the employee, "...had to breathe in order to fulfill her contract of service, contaminated by a co- employee, was a condition of the employment for Sexton and thus a risk of 'this' employment for her." The court reasoned that the injury was not self-inflicted and the employee takes their employees as they find them.

The Second Injury (SIF) was also held responsible for the pre-existing COPD condition since was the intent of the SIF to encourage employers to hire workers' with pre-exisiting conditions. In this case the pre-existing condition was not the sole cause of the injury; therefore, making the SIF liable also.

Sexton v. County of Cumberland/Culberland Manor, NJ App. Div., A-6414-06T1 Decided Januray 9, 2009).


Micahel D. Sherman said...

If we substitute the words "sulfuric acid" for the word "perfume", somehow we all seem a little more comfortable with a work comp award. I've handled several cases where the irritant for a pre-existing breathing condition can be a rather common "exposure". Where there is an actual change in the employee's physical condition ( as per spirometry) is can be difficult (and frustrating) to rebut the medical evidence that there is a workplace "aggravation' of a pre-existing condition.
Fortunately the SIF is available in NJ, as is not available in other jurisdictions.

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