Court: ‘Something stinks about this comp case’
February 9, 2009 by Shane BorerPosted in: "Would you want this person in Finance?", Fighting off fraud, In this week's e-newsletter, Latest news & views, Worker's comp
An employee who claims she was permanently disabled by a co-worker’s perfume can now move forward with her worker’s compensation lawsuit.
Doris Sexton, former employee at the Cumberland Manor Nursing Home, claims that a co-worker’s rampant perfume sprays left her permanently disabled and unable to work. Sexton said the incident that deteriorated her health so dramatically was when the co-worker sprayed perfume near her three separate times in a single day.
Sexton already had a chronic lung condition before working at the New Jersey nursing home. The worker that sprayed perfume near her reportedly exacerbated her condition.
A lower court rules Sexton’s reaction to the perfume didn’t arise out of her employment. Sexton had been a pack-a-day smoker for 43 years prior to the perfume incident, the court noted, and that was likely the cause of her disability.
But an appeals panel found in favor of Sexton, because the exposure to the perfume happened while at work. “The air Sexton had to breathe in order to fulfill her contract of service, contaminated by a co-employee, was a condition of the employment for Sexton and thus a risk of this employment for her,” the court said in its ruling.
The case now goes back to a lower court to determine whether Sexton is indeed eligible for worker’s compensation.
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Tags: Lung condition, Perfume, Smells at work
February 16th, 2009 at 8:45 am
Unfortunately, fragrance sensitivity is real. Fragrances for me results in a migraine. Nevertheless, even when told that their fragrance is debilitating to me, co-workers continue to use it in and around my office. Management does nothing to try to help with this problem. I take medication every day for my migraines which are caused explicitly by co-workers’ colognes and perfumes. I am a strong believer that fragrances should be banned in the workplace. People who use them do not seem to know when enough is enough. I am not a complainer. I’ll tell someone once that their perfume bothers me, and after that, I just suffer in silence. I’m hoping that one day, like smoking, fragrances will be banned, but it probably won’t happen in my lifetime.
February 16th, 2009 at 9:34 am
I am an asthmatic and never had any problems until I moved my daughter in with me who had 2 cats and 2 dogs. I started to get sick and couldn’t seem to rid myself of the sickness. I ended up in the hospital and nearly died because I did not know I had an allergy to animals. Now strong fragrances bother me and cause me to have an attack. Smoking did not cause this to happen to me. I do work where there are smokers and now I have a problem with smoke too. It seems like once you trigger an allergy and are exposed over a long period of time, you are never the same. A person can walk into a room and I can smell the fragrance even if they had used the fragrance 10 hours ago. Once you become sensitive to something and your constantly exposed, it can become a serious health problem.
I know smoking is blamed for everything and smoking is a serious health problem but it does not cause allergies to foods, animals or fragrances.
February 16th, 2009 at 2:02 pm
I, too, am allergic to perfume. I have mentioned off-and-on that I am allergic and they still spray, spray, spray! After a day where 3 different perfumes made my eyes run so bad I couldn’t stand it, I finally told my boss that he either put out a memo saying this is banned, or I am going home sick every time it happens. We put out the e-mail, however, people still wear the stuff. It’s totally inconsiderate. However, I’m sticking to my guns and will go home sick every time it happens. I do not smoke and never have.
March 14th, 2009 at 1:20 pm
THE PERFUME DECISION – THE FRAGRANT AROMA OF A JUST RESULT
A lot of controversy has arisen over the recent “perfume case”. In Sexton vs. Cumberland County/Cumberland Manor the N.J. Appellate Court held that a worker was entitled to pursue workers’ compensation benefits because perfume exposure at work aggravated a pre-existing lung condition. Contrary to the opinion of some critics, the holding does not stink. The furor expressed by those opposed to the decision is based upon a fundamental misunderstanding of the principles of N.J. workers compensation law.
The N.J. workers compensation law was adopted in the early 1900s. It confiscated every worker’s right to sue his employer. The law deprives the worker and his family of the right to claim adequate compensation for work-related injury (for example, damages for pain and suffering, future wage loss, spousal claims for loss of society and services, exemplary damages, loss of enjoyment of life damages, and the like). Instead, the worker was limited to three potential benefits: authorized medical treatment, temporary total disability, and permanent disability.
As a matter of law, the worker and his family lost the right to sue a grossly negligent or careless employer, even if that gross negligence or carelessness caused serious injury or death. Indeed, the workers compensation law confers immunity on the employer to an extreme degree. For example, if an employer fails to maintain safety devices on a dangerous machine and that failure causes amputation of the worker’s arm, the employer’s exposure was limited to workers compensation benefits.
In order to make certain the scales of justice were more fairly balanced, the worker’s entitlement to workers compensation benefits was made less difficult. The worker only needs to prove that the injury “arose out of and during the course of employment”. The “arise out of” component simply means that the cause of the injury was “work connected”, i.e., the worker encountered the risk when engaged in rendering service to his/her employer. The “during course of employment” component is a primarily a temporal and geographical concept focusing on whether the worker had begun work on premises controlled by the employer.
In addition, because the law was tilted so heavily in favor of the employer, the law further provided that an employer “take an employee as the employer finds him or her.” This means that if an exposure at work aggravated a pre-existing condition of the worker, the worker was nevertheless entitled to workers compensation even though the prior medical condition predisposed that worker to suffer more serious medical consequences. As a matter of law, it makes no difference that a different worker, subject to the identical work exposure, would incur no injury because that worker had no prior medical condition susceptible to aggravation by exposure.
The sound reasoning of the Sexton opinion is more readily understood in this context. Mrs. Sexton, during her day at work, was subjected to three separate exposures to perfume sprayed by a co-worker. Before that incident at work, the petitioner was routinely employed, was able to perform chores at work and at home, and was able to lead a normal life. After the work incident, Mrs. Sexton was repeatedly hospitalized and after being discharged from a rehabilitation center weeks after the accident, was oxygen-dependent. She could barely function. The perfume incident at work, which aggravated Mrs. Sexton’s pre-existing chronic obstructive pulmonary disease, was the “straw that broke the camel’s back.” The incident occurred because both she and her co-worker were captives of their employment. She could not have avoided the second or third exposure. The contaminated air was a “condition of her employment.” The exposures occurred because of her employment. The debilitating effects of that exposure are what the workers’ compensation law was designed to remedy, albeit in a limited fashion.
It must be repeated, a worker cannot sue his employer, regardless of how gross the employer’s negligent conduct or the severity of the worker’s injury. To make up for this immunity, the law requires that the employer accept the employee regardless of his/her pre-existing medical condition. The employer’s insurance company must pay for injuries that arise “out of and during the course of employment”, regardless of fault. Work aggravation of pre-existing medical conditions are protected by the limited remedies available under the workers compensation system.
It is hoped that having supplied this information, those opposed to Mrs. Sexton receiving benefits for her debilitating condition would be more tolerant and understanding. By its decision the Appellate Court simply reaffirmed the principles of workers compensation law and properly adjusted the scale of justice to protect the worker.
Kenneth A. DiMuzio Sr.
Hoffman DiMuzio
25-35 Hunter St.
Woodbury, NJ 08096