Pennsylvania Adopts The Separate Reaction Theory For Latex Allergy Claims

The Pennsylvania Workers' Compensation Appeals Board has followed the theory adopted in a majority of jurisdictions that each discrete reaction to latex products constitutes a separate injury. Even though the worker may have suffered a reaction based upon a cumulative exposure to latex at many employments, the responsibility for compensating the injured worker falls upon the employer where the reaction in question occurred. Evans v. Phoebe Berks Health Care Cr., A98-3954 (Pa.Work.Comp.App.Bd. 2000), decided Feb. 1, 2000.

Mary Evans was employed as a registered nurse at the Phoebe Berks Health Care Center (Phoebe) from June 1995 through March 1996. During her employment she did not use latex gloves but was exposed to latex products in and about her work environment. She filed a claim alleging that during her employment at Phoebe she became disabled as a result of her cumulative exposure to latex products.

While at Phoebe, in order to avoid an allergic reaction to the latex that she was exposed to through others' use of the material at work, Evans would take prednisone and benadryl before going to work. Eventually she had to discontinue the use of prednisone due to its side effects. She consulted her treating physician who advised her that the only real treatment was avoidance. Therefore, she stopped work at Phoebe at the end of March 1996 and her symptoms improved.

Phoebe, in order to avoid responsibility for Evans' disability, attempted to join her previous employer, Berks Visiting Nurse Association (Visiting), as a party to the claim. It was alleged that the initial exposure to latex occurred years earlier while Evans was employed at Visiting and that this prior employer caused the allergic sensitivity. Phoebe alleged that the reaction at the subsequent employment was merely a reoccurrence, if anything at all.

While nurse Evans had experienced symptoms while at Visiting and had been required to take a lower paying position at Visiting due to her sensitivity to latex, both the trial court and the appellate court ruled that the prior employer was not responsible for the reaction the nurse suffered at the subsequent employer, Phoebe. This reasoning was based upon earlier case law where a painter suffered an allergic reaction to paint upon returning each time to the work environment. The court in that case held that each reaction was a separate and compensable injury. National Underground Storage v. Workmen's Compensation Appeal Board, 658 A.2d 1389 (Pa. Cmwlth. 1955).

The Pennsylvania court again followed a national trend of holding the last carrier of the last employer on the risk at the time of the reaction to be liable despite the cumulative nature of the latex sensitivity. This approach provides a rational, expeditious and cost saving method of assessing liability in latex sensitivity cases.

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1 The author, who practices in Wayne, NJ , wrote Workers' Compensation Law, 2nd ed. (West Group). He can be reached electronically at: jon@gelmans.com. Internet: www.gelmans.com; 1455 Valley Road, PO Box 934, Wayne, NJ 07474-0934, Tel: (973) 696-7900; Fax: (973) 696-7988.