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The lung injuries sustained by a worker who formerly smoked are compensable, an appellate court held Friday.
In Avalotis Corp. v. Harper, the West Virginia Supreme Court of Appeals held that a worker provided sufficient evidence he sustained injuries to his lungs from sulfur dioxide exposure at work to receive workers compensation.
Joseph Harper was exposed to sulfur dioxide at work on March 25, 2016, and sought medical treatment the following day. He was diagnosed with a lung injury as a result. Eight other workers also sought medical treatment for symptoms related to the exposure.
He filed for workers compensation benefits, which were awarded on appeal.
In 2017, Mr. Harper sought treatment for shortness of breath and was diagnosed with non-asthma reactive airway dysfunction syndrome, also known as RADS. However, an independent medical examiner opined that Mr. Harper’s symptoms were consistent with those of a smoker — had testified that he had been a smoker for about 10 years but had quit in November 2015 — and that there was not credible evidence that he sustained a work injury as a result of sulfur dioxide exposure.
The claims administrator denied the addition of RADS to his claim and Mr. Harper appealed.
The West Virginia Office of Judges reversed the decision, noting that several other employees had sought medical treatment for the exposure to sulfur dioxide and found that the report from the doctor who testified as to his condition was “reliable and supported by the evidence of the record.” The state’s Workers Compensation Board of Review affirmed the decision, and the appellate court also affirmed.
The appellate court found that although measurements taken of the air showed normal levels, the court found that the fact that several co-workers were treated for the same malady and the fact that Mr. Harper was diagnosed with an inhalation injury to the lungs the day after his exposure supported the decision that his RADS was compensable.
Lawmakers in New York are considering legislation that would allow widows and dependents of workers who died as a result of cancer caused by exposure to diesel exhaust to file for death benefits.