Casey v. Dillon Companies, Inc.

114 P.3d 182, 34 Kan. App. 2d 66, 2005 Kan. App. LEXIS 585
CourtCourt of Appeals of Kansas
DecidedJuly 1, 2005
DocketNo. 93,302
StatusPublished
Cited by1 cases

This text of 114 P.3d 182 (Casey v. Dillon Companies, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Casey v. Dillon Companies, Inc., 114 P.3d 182, 34 Kan. App. 2d 66, 2005 Kan. App. LEXIS 585 (kanctapp 2005).

Opinion

Pierron, J.:

Millie K. Casey appeals the decision of the Workers Compensation Board (Board) that she only suffered a temporary work-related injury as a result of allergic reactions while working at a Dillon Companies, Inc., grocery store (Dillons) in Sterling. Casey argues that she suffers from an occupational disease and should be granted workers compensation benefits based on her wage loss.

The facts in this case are for the most part undisputed. Casey began working at the Dillons in January 1990. Her jobs ranged [67]*67from checker to video manager, to training new employees, and to entering price changes in the store’s computer scanning system. She did not work in the produce room, and her only contact with produce was in handling items of produce while working as a checker.

In 1996, Casey began experiencing symptoms of an allergic reaction at work, occasionally breaking out in hives, experiencing difficulty breathing, and her eyes would swell. She was treated by her primary physician, Dr. Alan Davidson. Dr. Davidson provided prescription allergy medication and cortisone shots. Casey was referred to Dr. Bennett Radford, an internal medicine doctor specializing in allergy immunology. Dr. Radford treated Casey for seasonal allergies complicated by chronic sinusitis. Dr. Radford also stated that Casey was having an anaphylactic reaction while working at Dillons. Testing by Dr. Radford revealed that Casey was allergic to fresh fruits, fresh vegetables, molds, trees, grasses, weeds, and animal danders. Dr. Radford stated that Casey’s allergies developed over the time period of her work at Dillons because of a “priming effect” of her exposure to the allergens.

Dr. Radford recommended that Casey not return to work at Dillons in Sterling because of her allergic reactions. He suggested that “it might be just that store” and she could possibly work in another Dillons. Casey continued to work at the Sterling Dillons until February 18, 2002, when Drs. Davidson and Radford took her off work. On April 28, 2003, she returned to work at the Sterling Dillons for a 2-hour shift. Approximately 30-40 minutes into her shift, Casey developed itchy and swollen eyes and her throat began to bother her. After her 2-hour shift, Casey clocked out, gave herself an injection, and had someone give her a ride home. She was taken to a medical center by her mother because of the allergic reaction. Dr. Davidson again took Casey off work.

Casey had filed a claim for workers compensation on April 17, 2002. The administrative law judge (ALJ) referred Casey to Dr. Thomas Beller, a board-certified internist with a subspecialty in pulmonary medicine, for an independent medical examination. Dr. Beller concluded Casey suffered from allergic rhinitis, food allergies, and a histoiy of episodic work-related allergic reactions in-[68]*68eluding skin rashes. Dr. Beller was uncertain as to the causation of Casey s allergic reactions but had tire opinion that it was “associated with some environment exposure at the grocery store.” Dr. Beller believed that Casey should not return to a grocery store work environment. Dr. Beller rated Casey with a 10% whole body impairment by reason of the skin lesions developed during her acute allergic reactions.

Dillons had Casey examined by Dr. Allen Parmet, a board-certified physician in aerospace medicine and occupational medicine. Dr. Parmet also diagnosed Casey as suffering from life-long or long-standing allergic rhinitis and many food allergies as a result of exposure to fruit and vegetable pollen and mold found at the Dillons store. However, Dr. Parmet found that Casey did not suffer any permanent aggravation or injuiy as a result of her workplace exposure and did not give her any permanent work restrictions or functional impairment.

The ALJ denied Casey any benefits and concluded there was no “sudden and unexpected event or events” and no “manifestation of force” that would constitute a personal injury by accident. The ALJ also concluded that Casey s condition was not an occupational disease because none of the expert testimony attributed the development of the disease to any “particular or peculiar hazard” of her employment at Dillons, nor did she develop allergies because of a special risk of a disease associated with a grocery store.

The Board reversed the ALJ’s decision. The Board stated that Casey’s condition presented elements of both a series of accidental injuries and an occupational disease. The Board concluded that Casey suffered a repetitive trauma condition similar to carpal tunnel syndrome, which, therefore, was compensable as an accidental injury. The Board stated it gave greater weight to the opinions of Dr. Radford, as treating physician, and Dr. Beller, as independent medical examiner, than to Dr. Parmet. The Board concluded:

“Once claimant stopped working for respondent her condition improved, her allergic reactions subsided and, with the use of medications, her symptoms returned to baseline. Her physical examinations by aE three physicians were of an essentially normal healthy individual but with numerous aEergies that were in remission. Accordingly, the Board concludes that claimant’s work-related injury [69]*69was temporary. She therefore is not entitled to permanent partial disability compensation. As claimant is not claiming temporary total disability compensation, her benefits are limited to authorized and unauthorized medical expenses. All reasonable medical expenses for the treatment of claimant’s injuries and allergy condition shall be paid by respondent subject to the Kansas Worker’s Compensation Schedule for Medical Fees up through and including the November 14, 2002, examination by Dr. Beller, when claimant’s condition was found to be in remission and she was described as being at maximum medical improvement.”

However, the Board was not in complete agreement. Two Board members dissented from the majority decision:

“The undersigned Board Members agree with the majority that this claim is compensable but would treat it as an occupational disease rather than an accidental injury. [Footnote citing Armstrong v. City of Wichita, 21 Kan. App. 2d 750, 907 P.2d 923 (1995)]. We would further find claimant’s work-related condition is permanent, riot temporary, and would award compensation based upon her actual wage loss as provided by K.S.A. 44-5a01 and K.S.A. 44-5a06.”

Casey argues she suffered from an occupational disease and is entitled to compensation based on her wage loss. She seeks reversal of the Board’s order and a remand for determination by the Board of the amount of compensation she is entitled to based on the occupational disease. Casey maintains there was no accidental injuiy:

“This is a situation where claimant was exposed on a daily basis to an environment heavy with fruit and vegetable pollen and mold. Over the course of 13 years, claimant’s mass cells were saturated to the point where she developed allergic rhinitis directly caused by fruits and vegetables which are particular to a grocery store environment. There is no trauma or accidental injury.

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Bluebook (online)
114 P.3d 182, 34 Kan. App. 2d 66, 2005 Kan. App. LEXIS 585, Counsel Stack Legal Research, https://law.counselstack.com/opinion/casey-v-dillon-companies-inc-kanctapp-2005.