Estimated read time: 8-9 minutes
Shop teacher wonders: What on earth is making me sick?
Rick was a high school shop teacher. Like most of his students, he loved everything about automobiles! Repairing engines and body damage, welding, painting, upholstering, designing, driving, tuning, racing, building and restoring cars and trucks was not only his passion, but his career.
He took special satisfaction in sharing his knowledge and enthusiasm with talented students – many of whom were simply not college bound due to aptitude or financial restraints. But Rick kept getting sick and losing time from work to the point that his job was in jeopardy.
Doctors said it was pneumonitis, a chronic swelling of the lung tissue most often caused by chemicals, allergens, radiation therapy of the chest, exposure to chemotherapy medications, inhaling dander or debris, aspiration, exposure to herbicides or fluorocarbons, or some systemic disease. If unresolved, continued inflammation can result in irreparable damage such as pulmonary fibrosis.
Because his chronic health problems only recently started and while working as an auto shop teacher, the only cause Rick could think of was the motor vehicle waste disposal well (the sump) in the high school shop. He thought it might contain fluorcarbons or other irritants that he was breathing all day, every day.
Rick filed a claim with his employer's workers compensation carrier, which was promptly denied. The insurance company claimed that after testing the sump there were no dangerous chemical levels (as measured in parts per million) near the sump or anywhere else in the auto shop. Rick then came to Davis & Sanchez to see if they could help.
One challenge facing injured workers is that the employee has the burden of proving that an accident or the work environment is what caused his injury. The parts-per-million chemical test done by the insurance company was going to be challenging to overcome – especially given the cost of hiring scientists and expert witnesses to support Rick's theory.
As it usually happens, the best friend of an insurance company when denying a claim is a little gem known as a "pre-existing condition." In his deposition (an interview with the insurance company's attorney), Rick testified that he had worked for many years in the auto body repair industry, often as an automobile painter.
As with many employers at the time, the use of hazardous chemicals and the lack of adequate safety equipment meant he sprayed a lot of automobile paint on cars and trucks over the years without proper breathing protection. After learning this, an "expert insurance doctor," hired by the insurance company attorney, evaluated Rick and blamed his current medical condition on years of breathing isocyanates in automobile paint. (Isocyanates are a family of highly reactive chemicals found in paints, adhesives, foams, glues and flooring. Those most at risk of developing respiratory problems include employees who spray paint, blow foam or insulation into various products, or who lay carpet or flooring.)
In the workers compensation law, there is a little-used or understood legal doctrine known as the "last-injurious exposure" rule. This doctrine states that if an employee has worked for an employer for more than one year and has had no symptoms of disease prior to his current employment, then the current employer bears the burden of treating the employee's entire disease.
It doesn't matter that exposure at previous employers' places of business may have contributed to his illness. (If the employee worked for his current employer for less than one year, then previous employers must also be added as parties liable for causing the disease.) The challenge then, for Davis & Sanchez, was three fold:
First, Rick's attorney had to prove that Rick had worked for the school district for at least one year. That was easy because Rick had been employed by the high school for nearly five years. Second, he had to prove that Rick had had no pneumonitis symptoms prior to working for the high school, and Rick's medical records showed no treatment for pneumonitis while working for other employers.
The third challenge was more difficult because Rick worked as an automobile paint sprayer many years before, and the expert insurance doctor opined that gasses and hazardous chemicals from the auto shop sump were not to blame for Rick's condition, Rick's attorney had to find another cause for Rick's poor health.
Ironically, it was the doctor who shot down Rick's initial claim that provided the key to ultimate success. The same insurance company doctor who sank Rick's theory that the sump in the shop was causing Rick's illness provided the ammunition for an alternative theory for Rick's health challenges: isocyanate exposure. All Rick had to do was prove that even in his current employment, he had been exposed to isocyanates.
At trial, the insurance company attorney hit hard on the fact that Rick's exposure to isocyanates – not chemicals from the sump – was the true cause of Rick's pneumonitis. He cited his medical expert's written report and a medical study showing that Rick was 80% more likely to develop asthma (at least) due to his exposure to isocyanates at his previous jobs.
On rebuttal, Rick's attorney happily agreed with the expert insurance doctor's opinion. Rick then testified on the witness stand that during his current employment, he painted at least three automobiles in a makeshift paint booth at the high school. He was not provided proper breathing protection and along with his students was asked on numerous occasions to paint scenery for the school play in the same paint booth.
In short, evidence showed that Rick received a great deal of isocyanate exposure at the high school, and because of the "last injurious exposure doctrine," the school district was responsible for the entirety of Rick's treatment notwithstanding the fact that he had been exposed to the same chemicals years before at previous employers.
Given the overwhelming evidence of isocyanate exposure at the high school, and pleading for employment of the "last injurious exposure doctrine," the judge had no choice but to find the workers compensation carrier liable for Rick's medical treatment, lost work, and inability to continue his employment.
Needless to say, the insurance company attorney was not pleased that Davis & Sanchez had used his expert insurance doctor's own opinion against him. In one final twist of triumphant justice, the insurance company attorney sent Rick to the University of Utah for a pulmonary exam to determine the extent of permanent damage to Rick's lungs, which would determine the amount of money Rick would receive due to his disability.
When the doctor came back with a 50% impairment rating, the disgusted attorney censured the doctor, accused him of making a serious mistake, and demanded that he reassess Rick's condition and lower the impairment rating. The doctor, who was hired by the insurance company, humbly agreed that he had made a mistake and sent the attorney his new findings: Rick had a 60% disability rating!
For once, the good guys had won! The insurance company and its attorney came unglued but paid the full claim, plus interest, and disability benefits to Rick for life.
What benefits is an employee entitled to if injured at work?
Like other states, Utah requires employers to carry workers compensation insurance. In the event of an accident at work, this insurance is designed to pay an injured worker's medical expenses, a modest wage until the employee can get back to work, and modest compensation for a permanent impairment--such as consequences of a serious orthopedic surgery or an amputated body part.
In extreme cases, workers compensation insurance pays death benefits to an employee's family if the employee is killed, or a modest income for life if the employee is never able to return to work again. Whose fault the accident is (the employer's or the employee's) does not matter.
Workers compensation benefits are not a gateway to easy wealth. These bare bones benefits are designed to keep an injured worker' family afloat financially until the employee can fully recuperate.
Most injured workers say they would trade their workers compensation benefits in a heartbeat for the accident never to have happened in the first place. Employees often lose good health, income, health insurance, ongoing retirement contributions, and future earning power following a serious accident at work--even with workers compensation insurance coverage.
Is it any wonder that the Workers Compensation Fund has adopted as its motto: "Be careful out there!" Another reason to "be careful out there" is that insurance companies do not like to pay. They will often use every means at their disposal to delay or avoid payment altogether.
Most workplace injuries aren't reported
What happened to Rick could easily happen to you or to those you love.
In 2021, the U.S. Bureau of Labor Statistics reported that an average of 2.3 per 100 full-time workers were injured on the job that year. The most common non-fatal injuries were sprains, strains, and tears. Construction, transportation, and warehouse industries accounted for the most work-related deaths.
When you're dealing with the lasting effects of a workplace injury or death, the last thing you want is a financial burden to carry as well. However, many workers are unaware of the benefits available to them through worker's compensation. The Occupational Safety and Health Administration estimates that half of workplace injuries go unreported.
Have you been injured at work? Get help!
If you suspect you aren't receiving the compensation you rightfully deserve for a workplace injury or illness, it's important to act quickly. Let the award-winning team of attorneys at Davis & Sanchez help. They have handled thousands of cases. As a law firm focused solely on workers' compensation, Davis & Sanchez offers free case evaluations to help you determine if hiring an attorney is your best option.
Contact them today to get the help you need.
