In an opinion that reminds me of my law-school torts class with its discussion of cringeworthy accidental injuries, the Superior Court of New Jersey, Appellate Division, decided the workers compensation appeal of a woman whose COPD was exacerbated by a fellow employee’s sprayed perfume.
The issue was whether the aggravation of the employee’s chronic obstructive pulmonary disease (COPD) arose out of her employment. The workers compensation judge thought not, so the employee appealed.
Five years ago, the employee was working as a nurse in a nursing home when she was exposed to three separate sprays of a perfume in one day. She experienced difficulty breathing after the second and third sprays.
Her breathing difficulties continued the next day, when her daughter took her to the hospital, where she was admitted to stay for 12 days. She was transferred to a rehabilitation center where she stayed for seven days and then to another hospital, where she was admitted and stayed for another seven days.
Ever since her hospital stays, the employee was dependent on oxygen. She was unable to return to work.
“Hair on fire” case comparison
In re-considering the workers compensation judge’s denial of benefits, the Appellate Division compared this case to that of Coleman v. Cycle Transformer Corp., 105 N. J. 285 (1986), in which an employee accidentally set her hair on fire while trying to light a cigarette during her lunch break. The New Jersey Supreme Court found that her injuries did not arise out of the course of her employment.
The Coleman court reasoned that the the nature of the risk to the employee of setting her hair on fire in that manner was personal to the employee and that the employment connection with the injury was minimal. There was no condition of her work or workplace that was a contributing cause of her injury.
Idiopathic (spontaneous) fall cases
As though the discussion of an employee’s setting her own hair on fire were not enough, the court moved on to a discussion of workplace injuries caused by spontaneous falls. An employee who burned his face when he fell into a pot stove during a seizure was awarded workers comp in 1944 because the stove was a condition of the workplace that contributed to his injury.
Likewise, an employee who fell because of a heart attack and hit his head on the floor, as a result of which he later died, was entitled to workers comp in 1965 because the injury he suffered was a risk of his employment – i.e., the impact with the floor, which was a condition of the workplace.
The smoking cases
Unable to leave well enough alone, the court reviewed the smoking cases, in which employees suffered smoking related injuries on the job. In a case from 1955, when an employee was injured after spilling gasoline on his clothing and then trying to light a cigarette, the injuries were compensable because they arose out of the course of his employment.
But in a 1952 case, an employee was denied workers comp when he suffered injuries from a match head that flew into his eye when he tried to light a cigarette while driving a truck during work. This particular risk of using matches or smoking was somehow unconnected to the employment. The different outcomes in these two smoking cases perplexes me.
The workers comp judge in the recent perfume case apparently thought it was more like the match-head cigarette case than the gasoline-spill cigarette case, due to the employee’s personal sensitivity to perfume. While I don’t like that outcome, I can’t blame the judge for being a bit confused about how these cases should be decided, considering the state of the past case law reviewed in this opinion (the match-head case in particular).
Perfume case, Appellate Division analysis
The Appellate Division reversed the workers comp judge, reasoning as follows: But for being at work that day, the employee would not have been injured by her co-worker’s perfume. The air she had to breathe, which was contaminated by the perfume, was a condition of (and a risk of) her employment. Since breathing the contaminated workplace air injured her, the injury arose out of her employment.
The court also pointed out that just because the employee had COPD did not mean that the subsequent aggravation of that COPD was not compensable. Employees may be entitled to compensation where the injury causing their total and permanent disability amounted to the aggravation of a pre-existing condition. In fact, the Second Injury Fund allows employers a credit under these circumstances.
Sexton v. County of Cumberland/Cumberland Manor, Docket No. A-6414-06T1 (Sup Ct NJ, App Div 2009).