National Underground Storage v. Workmen's Compensation Appeal Board

658 A.2d 1389, 1995 Pa. Commw. LEXIS 228
CourtCommonwealth Court of Pennsylvania
DecidedMay 15, 1995
StatusPublished
Cited by2 cases

This text of 658 A.2d 1389 (National Underground Storage v. Workmen's 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
National Underground Storage v. Workmen's Compensation Appeal Board, 658 A.2d 1389, 1995 Pa. Commw. LEXIS 228 (Pa. Ct. App. 1995).

Opinion

DOYLE, Judge.

Before the Court is a petition for review from a decision of the Workmen’s Compensation Appeal Board which reversed an order of a referee, which held that the injuries of Donald Durochia (Claimant) were recurrences of a prior injury.

Claimant was employed by National Underground Storage (Employer) as a driver, hauling boxed records and computer tapes which are stored in Employer’s underground facility.1 On November 27, 1988, Claimant was given a new van to drive, which, unlike previous vans, did not have a bulkhead to separate the cargo area from the driver. Employer had instead installed a partition behind the driver’s seat and painted the partition with a Sherwin Williams industrial slate gray oil-based paint. Beginning in December of 1988, Claimant began to experience a rash, which gradually became more severe and progressed to an outbreak of [1391]*1391hives from his waist down. His condition progressed further until, in mid-January 1989, he awoke with swollen feet, face and hands. Claimant generally felt very ill, and had welts across his back, down his arms and across his lower back. He went to see his family physician, Dr. Lepiane, who ordered Claimant to undergo tests at Franklin Medical Center. Claimant informed his supervisor, Mr. Newell, of his condition. Claimant was off from work for several days during this period, and was free from hives and welts while away from the work site, i.e. the truck.

At the end of January, 1989, Claimant entered his truck one morning and instantly got a “prickly” sensation in his eyebrows, in the creases in his forehead, along his sideburns, and along his ears. Claimant testified that at this time it was obvious to him that the paint on the partition was the source of his symptoms. Claimant indicated that he only got the prickly sensation when he was exposed to the paint. Claimant reported his suspicions to Mr. Dowdy, the head of maintenance and a vice president with Employer.

Employer placed a piece of plastic over the painted partition, and this brought Claimant instant relief. The paint was then removed by sandblasting, and although Claimant felt much better and continued to work, in the weeks and months that followed, he still felt ill from time to time and suffered from swelling and welts across the upper back, down his arms, and across his lower back. Claimant testified that the same gray paint that had formerly been used on the partition of his truck, was widely used throughout Employer’s underground facility. Since January 1990, he periodically has “attacks” of symptoms, which have continued to the present. The referee noted that Claimant reported to Dr. Mina Patel2 that from March 1990 until November 1990, he was not exposed to the paint and had no swelling or hives. However, around the end of November 1990, Claimant returned to the work site to return his mine keys, which he inadvertently took home, and he was exposed to the paint for only about fifteen minutes. The next morning he experienced an eruption of hives and welts, which cleared up after he took antihistamines.

In March 1990, Claimant saw Dr. Kerry, an ear, nose, throat and allergy specialist, and Claimant was referred to the Cleveland Clinic in early April of 1990. He was told to avoid exposure to the paint.

On May 9, 1991, Claimant filed a claim petition alleging that he suffered a work-related injury as a result of his exposure to the gray paint in Employer’s facility. Because Claimant has not been disabled from working, his petition only sought reimbursement for medical and travel expenses.

From the time of Claimant’s injury to the present, Employer has been insured by various insurance carriers. From January 1, 1988, until December 31, 1988, Employer’s insurer was Northbrook Property and Casualty. American Motorist Insurance Co. insured Employer from January 1, 1989, until December 31, 1989. For the calendar years 1990, and 1991, Employer’s compensation insurance was carried by Continental Insurance Company and PMA Insurance Company, respectively. Each of these carriers were joined as defendants.

At the hearing before the referee, several doctors testified regarding Claimant’s condition. All the doctors agreed that Claimant’s symptoms were an allergic reaction to the gray paint that he was initially exposed to in November 1988. However, the only testimony accepted as credible by the referee was that of Dr. John G. Kokales. Dr. Kokales reviewed Claimant’s records, and wrote a report on December 5, 1990. In his opinion, Claimant will always have an allergic reaction to the allergens he was exposed to in the paint; any reexposure to similar allergens will always prompt the same response, i.e., swelling, hives, etc. Dr. Kokales also testi[1392]*1392fied that it was his belief that “any complaint that [Claimant] has at this time or in the further is not a new injury, but just a recurrence of a previously known hypersensitivity reaction.” (Finding of Fact No. 13.)

Based on the evidence the referee concluded that Claimant had sustained his burden of proving the existence of a work-related injury of an allergic reaction to the paint. He also concluded that Claimant’s allergic reactions were recurrences of the same prior injury. Accordingly, Northbrook, the insurer at the time he first suffered symptoms in December 1988, was liable for Claimant’s medical and transportation expenses.

Northbrook appealed to the Board. The Board held that the referee erred as a matter of law by finding that Claimant’s symptoms were a recurrence; rather, the Board held, each exposure to the allergen was a new injury, and therefore held that American Motorist was responsible for medical bills incurred during 1989, Continental for medical bills in 1990, and PMA for bills incurred after July 1, 1991.3 Each of these carriers appealed.4

Insurers argue that the Board erred in reversing the order of the referee, because the referee’s conclusion that Claimant’s hives and swelling were a recurrence of a prior injury was supported by substantial evidence. For the reasons that follow, we will affirm the Board.

We note, as we did in Fidelity Mutual Life Insurance Co. v. Workmen’s Compensation Appeal Board (Gourley), 126 Pa.Commonwealth Ct. 188, 559 A.2d 84 (1989), that the issue cannot be whether Claimant

suffered a recurrence of a prior injury because Claimant never received benefits for a prior injury, and, thus, there was no determination of disability that could recur. Instead, the issue is whether the disabling injury was a continuation of an earlier injury. If an injury is a continuation of an earlier injury, then the employer/insurance carrier at the time of the earlier injury is liable for the payment of workmen’s compensation benefits.

Id. at 192, 559 A.2d at 85-86 (citations and footnote omitted). In Fidelity, this Court explicitly rejected the argument that sensitization to a substance is an initial injury, and subsequent manifestations are “recurrences” of that initial injury.

Our Supreme Court’s opinion in Pawlosky v. Workmen’s Compensation Appeal Board, 514 Pa. 450, 525 A.2d 1204 (1987), is also instructive in this regard. In Pawlosky,

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658 A.2d 1389, 1995 Pa. Commw. LEXIS 228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-underground-storage-v-workmens-compensation-appeal-board-pacommwct-1995.