Kozlowski v. Workers' Compensation Appeal Board

764 A.2d 676, 2000 Pa. Commw. LEXIS 705
CourtCommonwealth Court of Pennsylvania
DecidedDecember 29, 2000
StatusPublished
Cited by1 cases

This text of 764 A.2d 676 (Kozlowski v. Workers' Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kozlowski v. Workers' Compensation Appeal Board, 764 A.2d 676, 2000 Pa. Commw. LEXIS 705 (Pa. Ct. App. 2000).

Opinion

JIULIANTE, Senior Judge.

Claimant Sheryl Kozlowski petitions for review of the May 5, 2000 order of the Workers’ Compensation Appeal Board (Board) that affirmed the order of the workers’ compensation judge (WCJ) denying Claimant’s claim petition on the grounds that Claimant failed to establish that she suffered from an occupational disease under Section 108(n) of the Workers’ Compensation Act (Act)1 or that she suffered a work-related injury under Section 301(c)(1) of the Act, 77 P.S. § 411(1). Claimant states three issues for our review: whether the workers’ compensation authorities (1) erred by failing to find that Claimant suffered from an occupational disease under Section 108(i) of the Act, 77 P.S. § 27.1(i); (2) erred by failing to find that latex allergies are not an occupational disease covered by Section 108(n); and (3) erred by concluding that Claimant’s injury [678]*678is not compensable under Section 301(c)(1).. We affirm.

The WCJ found the following facts. Claimant had been employed by McKees-port Hospital (Employer) as nursing assistant from approximately 1988 until her last day of work on October 31, 1997. She has not been employed since that time. Her primary duty as a nursing assistant was rendering patient care, which required the use of latex gloves. In 1992, Claimant first started noticing problems with the use of latex gloves. These problems started as hives on her arms and wrists, and then continued to worsen. Claimant’s symptoms included hives, a blotchy forehead, swollen eyes, nasal congestion, sore throat, shortness of breath and headaches. Claimant also suffers from other allergies and has treated with Dr. Ming S. Lin, a board-certified allergist.

When Claimant first started noticing these problems, she reported them to Employer. Claimant continued to deal with Employer’s Health Department. It advised her that there were no jobs that could be made available to her within the hospital that were totally within a latex-free environment. Claimant subsequently sustained a work-related injury to her lower back and was disabled for a period of time. During that time, Claimant gave birth to her only child.

In 1994, Claimant returned to work in Employer’s Radiology Department. Other than for the short time when she was transferred out of that Department, Claimant continued to work in the Radiology Department through October 31,1997.

On or about December 1,1997, Claimant filed a claim petition alleging that she sustained a work-related injury in the nature of a severe allergic reaction to latex in the course of her employment with Employer and has been partially disabled since November 3, 1997. She alleged that the allergic reaction was caused by exposure to latex mainly in the form of examination or surgical gloves. Claimant also alleged in her petition that she suffers from an occupational disease caused by constant exposure to latex rubber and airborne latex particles. Employer filed a timely answer denying Claimant’s allegations.

Before the WCJ, Claimant testified on her own behalf and introduced the deposition testimony of Dr. Lin, her treating physician. The WCJ found that although Dr. Lin credibly testified that Claimant suffers from a latex allergy, the doctor never testified that Claimant’s latex allergy was caused by her exposure to latex products in the workplace. Therefore, the WCJ determined that Claimant’s evidence, taken as a whole, failed to establish that she sustained a work-related injury while in the course of her employment with Employer.

Specifically, the WCJ reasoned that in light of the fact that Claimant has many other allergies, has a family history of allergies, and has treated for other allergies with the same symptoms as her alleged reaction to latex products, Claimant failed to establish an obvious causal connection between her exposure to latex and the development of her allergy. Consequently, the WCJ determined that Claimant failed to meet her burden of proving that her latex allergy was due to her work exposure to latex.

In addition, the WCJ found that Dr. Lin never testified that the incidence of latex allergy is substantially higher in the health care industry than in the general public. The WCJ also reviewed a National Institute for Occupational Safety and Health (NIOSH) Alert submitted by Claimant. The WCJ determined that the NIOSH Alert failed to adequately establish a difference between the general public and the community of health care workers as to the development of latex allergies. As a result, the WCJ determined that Claimant failed to establish that she suffers from an occupational disease as defined by Section 108(n) of the Act, 77 P.S. § 27.1(n).

In view of the foregoing, the WCJ denied Claimant’s claim petition. The [679]*679Board affirmed and Claimant appealed to this Court. On review, this Court is limited to a determination of whether the necessary findings of fact are supported by substantial evidence, whether errors of law have been committed or whether constitutional rights have been violated. Sears, Roebuck & Co. v. Workers’ Compensation Appeal Board (Lear), 707 A.2d 618 (Pa.Cmwlth.1998).

Claimant’s first argument is that the worker’s compensation authorities erred by failing to find that Claimant suffered from an occupational disease included under Section 108(i) of the Act. That section defines the term “occupational disease” in relevant part as: “Infection or inflammation of the skin due to oils, cutting compounds, lubricants, dust, liquids, fumes, gases or vapor, in any occupation involving direct contact with, handling thereof, or exposure thereto.” 77 P.S. § 27.1(i). Citing Gregarious v. Workmen’s Compensation Appeal Board (European Health Spas), 87 Pa.Cmwlth. 86, 486 A.2d 564 (1985), Claimant argues that Section 108(i) differs from Section 108(n) insofar as the former does not impose the burden of proving a substantially greater incidence of that disease in the occupation than in the general population. Thus, Claimant asserts that either the WCJ or the Board should have addressed the applicability of Section 108(i).

In response, Employer contends that Claimant failed to preserve this issue for appellate review. This Court agrees. As Claimant stated in her brief: “Neither the Judge nor the Board addressed the applicability of § 108(i).” Claimant’s Brief, p. 12. A review of the record indicates that in her appeal to the Board, Claimant did not raise the issue of whether the WCJ erred by failing to apply Section 108(i) of the Act. See Appeal from Judge’s Findings of Fact and Conclusions of Law, Respondent’s Brief, Appendix la.

Because Claimant has failed to raise this issue with any degree of specificity before the Board, it has not been preserved for appeal. Jonathan Sheppard Stables v. Workers’ Compensation Appeal Board (Wyatt), 739 A.2d 1084 (Pa.Cmwlth.1999). As a result, this issue has been waived.

Claimant’s second argument is that the workers’ compensation authorities erred by finding that latex allergies are not an occupational disease under Section 108(n) of the Act, 77 P.S. § 27.1(n).

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Bluebook (online)
764 A.2d 676, 2000 Pa. Commw. LEXIS 705, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kozlowski-v-workers-compensation-appeal-board-pacommwct-2000.