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Sputum, Specific Loss and Average Weekly Wage

Paul Cacciamani

Source: Lancaster General Hospital v. WCAB (Weber-Brown), Pa Cmwlth. (Dec. 15, 2009)

Analysis

In this case, the Claimant sustained an eye injury sometime in 1979 or 1980. Claimant was a nurse cleaning the tracheotomy of a patient with herpes simplex virus (“HSV”). The patient coughed causing sputum to spray into Claimant’s left eye. The injury was timely reported to employer. Claimant believed she contracted HSV due to the spraying incident. The testimony by the Claimant and her time of injury employer as well as the medical records at the time were inconclusive as to when the original injury occurred. Over the next 25 years, Claimant would periodically suffer from eye infections, receive treatment, the condition would dissipate, and her vision would return. Claimant stopped working for this employer in 1985. In October 2006, the infection returned but did not improve. Eventually by February 2007, Claimant lost vision in her left eye. She had a cornea transplant in May 2007 which resulted in scarring and no improvement in her vision.

After reviewing the employment records, the testimony of Claimant and numerous fact witnesses, the Commonwealth Court agreed with the WCJ and WCAB that there was more than enough evidence that a reasonable mind might accept the conclusion that the claimant's loss of sight was the result of work related HSV exposure. The Court held that the exposure to HSV occurred in 1980. Nevertheless, the Court determined the date of injury for purposes of specific loss was May 16, 2007, which was the date of the cornea transplant. The Court also determined that the Average Weekly Wage and compensation rate should be calculated from Claimant’s wages in 2007, not 1980.

What it Means For You

This is a rather significant development for employers and carriers with claims in Pennsylvania. The Court’s ruling for the claimant seems patently unfair. The Court assigned an exposure date when Claimant could not state one with reasonable certainty and then applied 2007 wages to an event that allegedly occured 30 years earlier with an employer that Claimant has not worked for since 1985. The Court shifted the burden to the employer to prove that the initial event did not happen. An appeal to the Supreme Court is being contemplated so this case may not be the final word on these issues. When a complex issue arises in your case, please contact a C&W workers’ compensation attorney to discuss your options.

About C&W

Cipriani & Werner is a professional corporation providing civil litigation and workman's compensation legal services to clients throughout Pennsylvania and New Jersey. If you have questions, feel free to contact Paul Cacciamani at (412) 563-2500.

You can also read more about the article's related practice groups:
Workers' Compensation