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July 13, 2010
Did Workplace Cause Nurse’s Allergies?

A nurse at a Vanderbilt hospital developed a severe latex allergy and sued for workers’ compensation benefits. Did Vanderbilt have the right to demand that she be examined by its own doctor?

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What happened. “Marsha” began working as a licensed practical nurse at Vanderbilt Orthopaedic Surgery Center in 1988. In 2002, she began experiencing allergy symptoms including hives and respiratory problems. An allergist diagnosed her with allergies to several food items, but avoiding these items at home did not stop her from breaking out within half an hour of arriving at the hospital.

In 2005, another allergist determined that Marsha was allergic to latex. Vanderbilt considered the possibility of removing the latex from Marsha’s surgery suite, but instead decided to offer her a job in a latex-free operating room at Vanderbilt Children’s Hospital. This suite was not in fact latex-free; only objects that actually came in contact with patients were free of latex, and two of the surgeons who worked there had special permission to wear latex gloves. Marsha had a severe allergic reaction while visiting this suite, forcing her to leave immediately and leading Vanderbilt to believe that she had rejected the transfer.

Another allergist suggested that Marsha might be allergic to the powder in latex gloves instead of the latex, but Vanderbilt found it impossible to render operating rooms powderless. Marsha continued to miss work, and Vanderbilt terminated her in 2006 for excessive absenteeism.

In October 2006, two allergists concluded that Marsha was indeed highly allergic to latex, and that more likely than not her latex allergy was caused by her employment with Vanderbilt. Even the doctor who still thought she was allergic to the powder agreed that individuals can develop allergies as the result of frequent exposure to a substance.

Marsha was unable to hold a job after leaving Vanderbilt; everything she tried (even jobs outside of her field) triggered her allergies. She filed a workers’ compensation complaint in October 2006. In June 2008, the trial court ruled that Marsha suffered a latex allergy caused by her employment with Vanderbilt. She was awarded permanent partial disability benefits at 50 percent and lifetime medical benefits. Vanderbilt appealed.

What the court said. Vanderbilt claimed that the trial court should have required Marsha to submit to an examination by a physician of its choosing. According to Vanderbilt, Marsha had already agreed to this examination but had changed her mind. Marsha countered that she had already seen multiple physicians, including two doctors who worked at Vanderbilt.

According to Tennessee law (TN Code Sec. 50-6-204), an employer may require an injured employee to submit to an examination by the employer’s physician at a reasonable time. State law does impose some limits on this requirement, though; the request must be made at a reasonable time, and the requested examination must be reasonable. The Tennessee Supreme Court has ruled that employers have the statutory right to compel this examination. An employee may challenge the request as unreasonable, but if the court determines that the request is reasonable, the employee must go to the examination. Overstreet v. TRW Commercial Steering (2008).

The trial court had found that Marsha had seen many physicians and had become distrustful of the whole process, and saw no reason to assume that yet another examination would yield meaningful information. The court of appeals disagreed. Marsha’s frustration with the diagnosis process was not justification for finding Vanderbilt’s request for another examination unreasonable.

Another examination may not have been helpful, but the court could not know that for sure. In light of the continuing confusion about Marsha’s allergies, Vanderbilt’s request for another examination was reasonable. The court sent the case back to the trial court to revisit the matter after Marsha was examined by the physician that Vanderbilt chose. Myers v. Vanderbilt University, Supreme Court of Tennessee, Special Workers’ Compensation Appeals Panel, No. M2008-02009-WC-R3-WC (5/11/10).

Point to remember: Employers have the right to require medical examinations in comp cases as long as the request is reasonable and timely.

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