Asthma/environmental Exposure

[Doug]

My wife developed very mild adult onset asthma about three years ago very mild and occasional. About the same time she went to work at a hospital as a nurse. The cleaning spray that was routinely used caused her to have sever laryngospasm, coughing and shortness of breath. Several other substances rotinely found in the healthcare setting cause the same reaction. At this point the sensitivty has increased to include strong cologne as well.
One of the physicians working with her wore heavy cologn and it caused her to have a severe attack and had to go to thr E. R.
Her boss filled out an incident report and called it a workmans comp issue.
The problem is the hospital Occupational Health Nurse is calling this a preexisting condition and the hospital has billed her for the E.R. visit.
Could this be ruled a preexisting condition? If you have a work place exposure reaction and your boss insists you go to the E.R.
can they bill you for the visit?

 

[Michael Wechsler]

This is a difficult call and I'm not sure that I'm the best person to answer this. It seems that the coverage may be different from state to state. In general it seems that:

"A workers' compensation claimant's burden of proof is two-fold to establish eligibility for benefits. The claimant must prove that he was injured in the course of his employment and that the injury resulted in a loss of earning power."

While the injury occurred in the workplace during the course of employment, pre-existing conditions are not covered. In a case that seems to be similar to your in North Dakota, a court declined coverage for circumstances similar to yours (this is one case, may not be appropriate for your jurisdiction and may have been overruled, although the analysis may be helpful.) In that case, McArthur v. ND Workers Comp. Bureau, 1997 ND 105, 564 N.W.2d 655, I found the analysis interesting and how it might apply to your case. I'll post the text although this case may not be the answer to your question and you must look at your jurisdiction and how the law may apply.

Originally posted by Doug
My wife developed very mild adult onset asthma about three years ago very mild and occasional. About the same time she went to work at a hospital as a nurse. The cleaning spray that was routinely used caused her to have sever laryngospasm, coughing and shortness of breath. Several other substances rotinely found in the healthcare setting cause the same reaction. At this point the sensitivty has increased to include strong cologne as well.
One of the physicians working with her wore heavy cologn and it caused her to have a severe attack and had to go to thr E. R.
Her boss filled out an incident report and called it a workmans comp issue.
The problem is the hospital Occupational Health Nurse is calling this a preexisting condition and the hospital has billed her for the E.R. visit.
Could this be ruled a preexisting condition? If you have a work place exposure reaction and your boss insists you go to the E.R.
can they bill you for the visit?

 

[Michael Wechsler]

McArthur v. ND Workers Comp. Bureau, 1997 ND 105, 564 N.W.2d 655
[Go to Docket] Filed June 3, 1997

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IN THE SUPREME COURT
STATE OF NORTH DAKOTA
1997 ND 105
Paulette McArthur, Claimant and Appellant
v.
North Dakota Workers Compensation Bureau, Appellee
and
American Linen Supply Company, Respondent and Appellee
Civil No. 960273

Appeal from the District Court for Burleigh County, South Central Judicial District, the Honorable Burt L. Riskedahl, Judge.
DISMISSED.
Opinion of the Court by Sandstrom, Justice.
Dean J. Haas, of Dietz, Little & Haas, Gateway Office Building, 2718 Gateway Avenue #301, Bismarck, N.D. 58501, for claimant and appellant.
Brent J. Edison, Special Assistant Attorney General, P.O. Box 1695, Bismarck, N.D. 58502-1695, for appellee.
Steven L. Latham, of Wheeler Wolf, P.O. Box 2056, Bismarck, N.D. 58502-2056, for respondent and appellee.


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McArthur v. Workers Compensation Bureau

Civil No. 960273
Sandstrom, Justice.
[¶1] Paulette McArthur appealed from a judgment(1) affirming a Workers Compensation Bureau order dismissing her claim for benefits. We conclude the Bureau's order was not appealable, and we dismiss the appeal.

I

[¶2] In April 1995, McArthur, an employee of American Linen Supply Company, submitted a claim for benefits to the Bureau. McArthur alleged she injured her lungs at work on April 13, 1995, when "fumes came out of the dryer when it opened."

[¶3] McArthur had previously been treated for a lung condition. In a March 24, 1995, letter to an insurance company, Dr. Zachary Q. Morris said, "Mrs. McArthur has one of the most advanced stages of sarcoidosis that I have seen in over ten years of practicing pulmonary medicine." In an April 25, 1995, report, Dr. Morris said McArthur's sarcoidosis "did not prevent her from working. Unfortunately, she has concomitant bronchospastic airways disease exacerbated by work exposure, causing marked limitations." In an August 16, 1995, letter to the Bureau, Dr. Morris said "sarcoidosis is a granulomatous disease of unknown etiology." He also stated McArthur's asthma (bronchospastic airways disease) "is exacerbated by any exposure to fumes, dust, or temperature changes . . . [and] she is not able to work in her former job in the laundry facility."

[¶4] In an October 26, 1995, letter to McArthur's attorney, Dr. Morris said:

"I will attempt to answer your specific questions, though the answers cannot be as clear cut as you desire. Ms. McArthur's employment does not worsen her sarcoidosis, but rather it acts as a trigger mechanism for her asthma. . . .
"In Ms. McArthur's particular case, the asthma could be triggered by either the sarcoidosis, or it may have eventually been triggered by the work environment. Most likely, the initial adverse event was probably the development of sarcoidosis. . . .
"Now that she has asthma, exposure to her particular work environment causes marked worsening or triggering of her symptoms. So to answer your last two questions, yes, exposure to the work worsened her disability, and continued exposure to the work environment would worsen her permanent partial disability."
[¶5] In a November 17, 1995, letter to McArthur's attorney, Dr. Morris said:

"To further clarify the questions you presented on your letter dated November 7, 1995, the answers are as follows. Mrs. McArthur's employment does cause a worsening of symptoms of asthma at the time of exposure. These symptoms can abate when the exposure ends, but there is also a high probability that repeated exposures could cause the asthma condition to worsen thereby accelerating the condition of asthma (but not the sarcoidosis). And yes, the asthma condition would become more severe than it would otherwise be."
The Bureau found, among other things:

"IX.
"The greater weight of the evidence does not indicate claimant sustained an injury by accident arising out of and in the course of employment.
"X.
"The greater weight of the evidence does not indicate claimant's condition is causally or fairly traceable to her employment."
The Bureau concluded McArthur did not prove she was entitled to benefits and dismissed her claim.

[¶6] McArthur appealed to the district court, contending the Bureau erred in finding McArthur's asthma was not compensable under N.D.C.C. § 65-01-02(9)(b)(6), which provides:

"9. 'Compensable injury' means an injury by accident arising out of and in the course of employment which must be established by medical evidence supported by objective medical findings.
"a. The term 'compensable injury', in addition to an injury by accident, includes:
"(1) Any disease that can be fairly traceable to the employment. . . .
"b. The term does not include:

* * * * *
"(6) Injuries attributable to a preexisting injury, disease, or condition which clearly manifested itself prior to the compensable injury. This does not prevent compensation where employment substantially aggravates and acts upon an underlying condition, substantially worsening its severity, or where employment substantially accelerates the progression of an underlying condition. It is insufficient, however, to afford compensation under this title solely because the employment acted as a trigger to produce symptoms in a latent and underlying condition if the underlying condition would likely have progressed similarly in the absence of the employment trigger, unless the employment trigger is determined to be a substantial aggravating or accelerating factor. An underlying condition is a preexisting injury, disease, or infirmity."
The district court affirmed the Bureau's dismissal order, and McArthur appealed from the judgment entered.

[¶7] McArthur's appeal to this Court was timely under N.D.R.App.P. 4(a) and N.D.C.C. § 28-32-21. This Court has jurisdiction under N.D. Const. Art VI, §§ 2 and 6, and N.D.C.C. § 28-32-21.

 

[Michael Wechsler]

II

[¶8] The Bureau's dismissal was an informal decision based upon the claim form, medical records, and letters. McArthur appealed the Bureau's informal decision, and no formal evidentiary hearing was held. N.D.C.C. § 65-01-14 provides, in part:

"65-01-14. Informal decision by bureau. Notwithstanding sections 28-32-05, 28-32-08, and 28-32-13, the following procedures must be followed when a claim for benefits or reapplication for benefits is made under this title:
* * * * *
"4. The bureau shall make its informal decision on the claim after filing of the claim and the physician's certificate. . . . If a timely request for reconsideration is not filed, the decision of the bureau is final, subject only to reopening of the claim under section 65-05-04. The provisions of section 65-10-01, relating to appeals from decision of the bureau, apply only when the bureau issues an order following a timely request for reconsideration."(2)
[¶9] "Appeals from Bureau decisions 'are statutory in nature and are not matters of original jurisdiction for the district courts but rather involve exercise of appellate jurisdiction of the district courts conferred by statute.'" Transystems Servs. v. North Dakota Workers Comp. Bureau, 550 N.W.2d 66, 67 (N.D. 1996) (quoting Boyko v. North Dakota Workmen's Comp. Bureau, 409 N.W.2d 638, 641 (N.D. 1987)). The right to appeal is a jurisdictional matter we consider sua sponte. E.g., In re J.K.M., 557 N.W.2d 229, 230 (N.D. 1996), Siewert v. North Dakota Workers Comp. Bureau, 554 N.W.2d 465, 466 n.1 (N.D. 1996).

[¶10] N.D.C.C. § 65-10-01, which authorizes an appeal of the Bureau's final action denying a claimant's right to participate in the fund, does not apply to an informal decision, but applies only to "an order following a timely request for reconsideration." N.D.C.C. § 65-01-14(4). The specific provision in N.D.C.C. § 65-01-14(4) making a request for reconsideration necessary before an appeal may be taken in workers compensation cases prevails over the general provision in N.D.C.C. § 28-32-14, which states filing a petition for reconsideration is not a prerequisite for seeking judicial review of a final order of an administrative agency. The general statute on appeals from administrative agency decisions, N.D.C.C. § 28-32-15, does not authorize McArthur's appeal from the Bureau's informal decision. N.D.C.C. § 28-32-15(1) authorizes a party to appeal an administrative agency order, "except in cases where the order of the administrative agency is declared final by any other statute." That exception is met by N.D.C.C. § 65-01-14(4), which provides, absent a request for reconsideration, an informal decision of the Bureau "is final, subject only to reopening of the claim under section 65-05-04." Because McArthur did not file a request for reconsideration, the informal decision became final, subject only to reopening under N.D.C.C. § 65-05-04. We conclude the Bureau's informal decision was not appealable.

[¶11] McArthur's appeal from the Bureau's informal decision short-circuited the evidentiary process. "[T]he lack of a full evidentiary hearing

this record rather sparse," and McArthur's "premature appeal confined decisionmaking to an incomplete record and, similarly, has restricted our appellate review." Claim of Olson, 419 N.W.2d 894, 896 (N.D. 1988). As a result of the truncated evidentiary process, Dr. Morris never presented an opinion as to whether or not McArthur's employment substantially worsened the severity of her underlying asthma condition or substantially accelerated its progression, as contemplated by N.D.C.C. § 65-01-02(9)(b)(6). For lack of an adequate record, the Bureau and the reviewing courts must speculate about the meaning of Dr. Morris's ambiguous statements about the relationship between McArthur's asthma and her employment. This confirms the wisdom of N.D.C.C. § 65-01-14(4) requiring reconsideration of an informal decision and issuance of a final order before the decision of the Bureau is appealable.

III

[¶12] Because the order appealed from was not appealable, the appeal is dismissed. Because the appeal in this case reflected the claimant was dissatisfied with the informal determination and was formally seeking further review, we direct the Bureau to treat the notice of appeal as a request for reconsideration in this case.

[¶13] Dale V. Sandstrom
William A. Neumann
Mary Muehlen Maring
Gerald W. VandeWalle, C.J.
Herbert L. Meschke, I concur in the result​

 

[weishi313]

I have asthma and recently discovered that common househould products trigger asthma. There are products being made which are chemical and toxic free. Regular products such as household cleaners, shampoo, toothpaste, and makeup, have poisonous toxins and chemicals for their ingredients. The products that I buy are made with no chemicals or toxins whatsoever! Since I've changed my house into a mostly chemical free environment, problems with my asthma decreased dramatically! I haven't used my inhaler in 3 months. If you want more information about these products, I would be glad to share it with you.

 

[freebird]

Re: Re: Asthma/environmental Exposure

That's good to know. I had congestion problems for a long time and found that using some products may have increased the problem and I'm much happier without them Glad to hear you're off the inhaler...

Originally posted by weishi313
I have asthma and recently discovered that common househould products trigger asthma. There are products being made which are chemical and toxic free. Regular products such as household cleaners, shampoo, toothpaste, and makeup, have poisonous toxins and chemicals for their ingredients. The products that I buy are made with no chemicals or toxins whatsoever! Since I've changed my house into a mostly chemical free environment, problems with my asthma decreased dramatically! I haven't used my inhaler in 3 months. If you want more information about these products, I would be glad to share it with you.

 

[pilawman]

Exposure to many of these common toxic chemicals can be dangerous. There are attorneys out there who concentrate on occupational asthma cases brought on by exposure to inhaled fumes in the workplace.