RN’s Illness Caused by Contaminated Carpet Leads to a Workers’ Compensation Claim

By | 2021-08-16T15:12:49-04:00 August 13th, 2021|0 Comments

In a previous blog, I wrote about a nurse’s difficulty with her workers’ compensation case taking a long time to resolve and her concern it would not be resolved in her favor.

As the blog pointed out, workers’ compensation cases mandate that a claimant for the compensation must have experienced an injury that “arises out of and during their course of employment.”

In the following case, an RN’s case focused on whether or not her injury was work related.

How She Became Ill

The RN started working at the medical center after she graduated from college in 1967 and remained there until 2005.

According to the nurse, she and other workers began experiencing respiratory symptoms caused by “environmental health issues” due to “contaminated carpet and wall coverings” at work.

The RN was treated in the ED five separate times in 2002 and 2003 and was diagnosed with multiple chemical sensitivity (MCS). Her multiple workers’ compensation claims were denied at the initial hearing level. She was subsequently terminated from her employment.

Her appeal to the Labor and Industrial Relations Appeal Board (LIRAB) also was denied.

The RN’s appeal of the denial to the Intermediate Court of Appeals also was rejected.

She then appealed that decision pro se (representing herself) to the Hawaii Supreme Court, asking that her case be reopened so she could obtain compensation under the workers’ compensation law.

The Supreme Court Rules

The court carefully reviewed the applicable law concerning workers’ compensation and its procedures.

The Supreme Court said the LIRAB’s decision that the RN failed to produce “substantial evidence” that a mistake of fact occurred in its decision so as to re-open her case, as is required, was incorrect.

As the court pointed out, the RN did show that a mistake of fact had occurred and did so several times in the history of the case.

Integral were several letters in evidence in the lower legal determinations by the administrator of the Disability Compensation Division. The administrator clearly states that an MCS injury may be compensable under workers’ compensation if the injury is determined to be work related.

The administrator wrote further that “any employee may file a WC case for MCS. If the MCS is determined to be caused by work, the injury would be covered under WC, however, if MCS is determined not to have been caused by work, the claim would be denied.”

In addition, the court opined that MCS is a legitimate medical diagnosis.

The court held the RN had shown “substantial evidence” that her MCS injury may be compensable under workers’ compensation if work-related and that her diagnosis should not have “categorically” been held to be a non-injury under WC.

The court vacated the ICA’s judgment on appeal and remanded the RN’s case back to the LIRAB for it to determine if her MCS injury was worked-related.

How This Case Relates to You

The initial decisions of the board and appeals court respectively blocked any ability of the RN to utilize the workers’ compensation procedures to determine if her injury was work related.

This effect was unlawful, in that Hawaii’s law presumes that any injury is work related and therefore compensable.

The RN will now have the chance to prove if her injury was work related.

The ability to have the chance to prove a work-related illness is extremely important for you as an employee. Because workers’ compensation laws are the exclusive remedy if you are injured at work, being unable to prove the facts of your injury results in no remedy for you at all.

Workers’ compensation laws vary from state to state, so it is important that you know what your state statute requires.

This knowledge is most easily acquired by consulting with a nurse attorney or attorney who concentrates his or her practice in workers’ compensation law and who represents employees before you file a claim with your employer.

If you and your consulting attorney decide you have a work-related injury, retaining the attorney to represent you throughout the entire claim process is essential.

The RN did not raise her termination after the claims were filed and denied in the appeal to the Hawaii Supreme Court. Because of this, the Supreme Court could not adjudicate an issue that is not raised by the party.

The reason for the RN not doing so is not known, but it raises several questions.

It may be, for example, that the RN decided not to litigate this issue because she did not want to return to work there. Or, it may be that she is planning to raise this allegation during, or after, the resolution of whether or not compensation will be granted to her.

However, as has been discussed in a previous blog, “COVID-19’s Effect on Legislation”, if the employer retaliated against the RN by firing her for filing claims under workers’ compensation, this would be a violation of the workers’ compensation statute.

The case also has implications for you as a potential litigant. The RN was not deterred in her quest to seek compensation under her state’s workers’ compensation laws. She even represented herself before the state Supreme Court.

Although self-representation is often not the best option when involved in any judicial proceeding, in this case, the RN prevailed.

If you decide to represent yourself in a legal proceeding, at the very least seek out advise and direction from a nurse attorney or attorney who can consult with you “in the wings” as you become your own attorney.  Keep in mind, though, that the role can be perilous.

 


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About the Author:

Nancy J. Brent, MS, JD, RN
Our legal information columnist Nancy J. Brent, MS, JD, RN, received her Juris Doctor from Loyola University Chicago School of Law and concentrates her solo law practice in health law and legal representation, consultation and education for healthcare professionals, school of nursing faculty and healthcare delivery facilities. Brent has conducted many seminars on legal issues in nursing and healthcare delivery across the country and has published extensively in the area of law and nursing practice. She brings more than 30 years of experience to her role of legal information columnist. Her posts are designed for educational purposes only and are not to be taken as specific legal or other advice. Individuals who need advice on a specific incident or work situation should contact a nurse attorney or attorney in their state. Visit The American Association of Nurse Attorneys website to search its attorney referral database by state.

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