A Pennsylvania court required that expert testimony be offered in order to establish causal relationship in a compensable latex allergy claim. The mere offering of an Alert issued by NIOSH did not satisfy the burden of proof.
Sheryl Kozlowski was employed at McKeesport Hospital as a nursing assistant from 1988 through 1992 when, while using latex gloves, she developed hives, a blotchy forehead, swollen eyes, nasal congestion, sore throat, shortness of breath and headaches. She reported her condition to the employee health services and was advised that there were no jobs in the hospital that could be offered to her in a totally latex free setting. She took some time off due to a back injury and child birth.
On December 1, 1997 she filed a workers' compensation claim petition for a severe allergic reaction to latex that she allegedly sustained during the course of her employment. At the workers' compensation hearing she testified that she was previously treated by an allergist for other allergic conditions. While the treating allergist testified by way of deposition, she did not offer any testimony as to causal relationship.
Furthermore, Dr. Lin, the treating allergist, did not provide any testimony that there was an increased incidence of latex allergy for those employed in the health care industry. The claimant did offer an Alert issued by the National Institute for Occupational Safety and Health(NIOSH) The trial court held that the NIOSH Alert did not adequately establish a difference between the general public and the community of health care workers concerning the development of latex sensitivity.
The trial court determined that the NIOSH Alert failed to establish any significant statistical or epidemiological differences to support the establishment of an occupational disease. Without adequate evidence being offered at trial, the court concluded that there was no causal connection between the nursing assistant's exposure at work and the development of her latex allergy. The dismissal was affirmed.
Kozlowski v. McKeesport Hospital, No.1272 C.D. 2000. 2000 WL 1879899 (Pa.Comwlth.)
1 The author, who practices in Wayne, NJ , wrote Workers' Compensation Law, 3rd ed. (West Group). He can be reached electronically at: jon@gelmans.com. Internet: http://www.gelmans.com/; 1450 Valley Road, PO Box 934, Wayne, NJ 07474-0934, Toll-free Tel: (888) 696-7900; Fax: (973) 696-7988.