Ludwick v. Triwest Healthcare Alliance and Physicians Clinic, Inc.

• Decision Date: 29 April 2004
• Docket Number: No. S-02-200.,S-02-200.
• Citation: 267 Neb. 887,678 NW 2d 517
• Parties: CAROL LUDWICK, APPELLANT, v. TRIWEST HEALTHCARE ALLIANCE AND PHYSICIANS CLINIC, INC., APPELLEES.
• Court: Nebraska Supreme Court

267 Neb. 887

678 NW 2d 517

CAROL LUDWICK, APPELLANT, v. TRIWEST HEALTHCARE ALLIANCE AND PHYSICIANS CLINIC, INC., APPELLEES.

No. S-02-200.

Supreme Court of Nebraska.

Filed April 29, 2004.

James E. Harris and Britany S. Shotkoski, of Harris Kuhn Law Firm, L.L.P., for appellant.

Joseph W. Grant, of Hotz, Weaver, Flood, Breitkreutz & Grant, for appellee TriWest Healthcare Alliance.

Kirk S. Blecha and Theresa A. Schneider, of Baird, Holm, McEachen, Pedersen, Hamann & Strasheim, for appellee Physicians Clinic, Inc.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, and MILLER-LERMAN, JJ.

PER CURIAM.

We granted Carol Ludwick's petition for further review of the decision of the Nebraska Court of Appeals in Ludwick v. TriWest Healthcare Alliance, No. A-02-200, 2003 WL 282588 (Neb. App. Feb. 11, 2003) (not designated for permanent publication). Ludwick contends the Court of Appeals erred in affirming the trial court's dismissal of her petition based on the appellate court's finding that Ludwick's latex allergy manifested itself in disability in 1992 and that subsequent reactions during her employment with the defendants were merely recurrences.

FACTUAL BACKGROUND

On March 9, 2001, Ludwick filed an amended petition alleging that she was entitled to workers' compensation benefits because "[o]n or about February 12, 1999, [her] symptomology and latex sensitization deteriorated and worsened to the extent that she could no longer safely perform her work duties and was required to cease her employment and pursue work where the risk of latex exposure would be diminished." Ludwick alleged that she suffered injuries as a result of an occupational disease arising out of and in the course of her employment with Physicians Clinic, Inc. (Physicians), and TriWest Healthcare Alliance (TriWest). Physicians and TriWest denied the allegations, and proceedings were held in the Workers' Compensation Court on June 15, 2001.

Ludwick was employed as a surgical nurse at Bergan Mercy Hospital (Bergan Mercy) from 1981 to 1993. During her time at Bergan Mercy, Ludwick was exposed to latex gloves and latex powder. She experienced rashes, hives, and wheezing symptoms, for which she received medical attention. Ludwick testified that her symptoms seemed to progressively worsen to the point where she was experiencing rashes, hives, and difficulty breathing at least once a month. In 1992, Ludwick had an anaphylactic reaction to latex that required an epinephrine shot. Ludwick testified that she left Bergan Mercy in 1993 in order to take care of her children and to obtain employment where she would not be exposed to latex gloves because it was her belief at that time that the powder in the latex gloves was causing her reactions.

From December 1994 to June 1997, Ludwick worked at Physicians as an office nurse. Ludwick was again exposed to latex which caused her to experience latex-related reactions. Ludwick sought medical treatment at Physicians for these reactions and was diagnosed with latex allergies on February 6, 1995. At that time, she was generally advised to avoid latex and began using vinyl gloves. Ludwick testified that she left Physicians to find another position where she would have a decreased exposure to latex.

Ludwick began working at TriWest on June 10, 1997, as a referral nurse, which involved working at a computer and telephone to authorize surgical procedures and did not involve any direct patient contact. Initially, Ludwick did not experience any latex-related problems. However, she began experiencing itching, hives, and difficulty breathing after TriWest moved into a new office building. The move to TriWest's new office building coincided with Ludwick's move into her new home. Ludwick testified that at the time TriWest moved to its new office building, she believed that her reactions may have been the result of problems with her new house. Ludwick testified that she does not know how much latex she was exposed to at TriWest, but that she had reactions "all the time," including four to five emergency room visits. On cross-examination, Ludwick conceded that three of these visits were attributed at the time to allergic reactions to food, not latex.

Ludwick resigned her position at TriWest on February 10, 1999. Initially, Ludwick testified that as a result of her health problems, she was on probation, and that she resigned because she thought she would be fired. On cross-examination, however, Ludwick acknowledged that three of the four documented reasons for her probation were not related to her health problems. The fourth reason was failure to give proper notice when taking time off.

From approximately 1993 continuing to the date of trial, Ludwick worked on an intermittent basis for Nurse Providers. After resigning from TriWest, Ludwick began working full time for Nurse Providers. This work involved providing patient care. Although Ludwick attempted to limit her exposure to latex in this position, she was unable to avoid it entirely. At the time of trial, Ludwick was still employed by Nurse Providers on an "on-call basis."

At the time of trial in June 2001, Ludwick was also employed by Pediatric Associates as an office nurse, a position she had held since April of that year. Ludwick testified that Pediatric Associates has been able to accommodate her allergy problems, that she has only minor symptoms, and that although she is still exposed to latex and still has reactions, she is doing "better."

Dr. Ted Segura treated Ludwick for her allergies beginning in 1998. In a letter dated June 12, 2001, which was received in evidence at trial, he made recommendations for creating a latex-safe work environment for Ludwick. These recommendations included: avoiding the personal use of latex gloves, avoiding any environment in which powdered latex gloves are used, and avoiding intimate contact with latex items such as dental dams, condoms, balloons, and tourniquets. Despite these restrictions, Segura concluded that "[f]rom the standpoint of her latex allergy alone, Ms. Ludwick should be able to find a full-time position in a latex-safe environment."

Dr. Mary Wampler reviewed Ludwick's medical records. In a letter dated March 6, 2001, which was received at trial, Wampler concluded that Ludwick had developed "Type I" hypersensitivity to latex, or anaphylactic response, during her employment at Bergan Mercy. She stated that once an individual has progressed to this reaction to latex, no more aggravated reaction can occur because it is "as severe a reaction to latex one can develop, short of death." Wampler thus opined that any symptoms Ludwick experienced after leaving Bergan Mercy were simply recurrences of the latex hypersensitivity and did not represent a worsening of her condition.

Jack Greene, a vocational rehabilitation counselor, stated in a report received at trial that Ludwick is able to continue employment as a registered nurse as long as she limits her exposure to latex. Greene opined, however, that Ludwick has experienced a 25-percent loss of earning capacity as a direct result of her hypersensitivity to latex, primarily because of her inability to work in a hospital environment.

The trial court, in its order filed August 22, 2001, dismissed Ludwick's petition, finding that she did not sustain an occupational disease during her employment with either Physicians or TriWest. Relying on Wampler's report, the trial court found that Ludwick's "last injurious exposure" to latex was prior to her employment at either Physicians or TriWest. Ludwick appealed to the workers' compensation review panel, and on January 18, 2002, the review panel affirmed the trial court's dismissal. In addition, the review panel ruled in favor of TriWest on its cross-appeal in which it contended that Ludwick failed to prove exposure to latex in the course of her employment with TriWest.

Ludwick appealed, and in an unpublished opinion, the Court of Appeals affirmed the dismissal without reference to TriWest's cross-appeal. Ludwick v. TriWest Healthcare Alliance, No. A-02-200, 2003 WL 282588 (Neb. App. Feb. 11, 2003) (not designated for permanent publication). The Court of Appeals determined that Ludwick's disability occurred in 1992 during her employment at Bergan Mercy, when she was forced to cease work and seek immediate medical attention, and that any subsequent reactions that occurred while she was in the employ of Physicians and TriWest were not causally connected to her disability. We granted Ludwick's petition for further review.

ASSIGNMENTS OF ERROR

Ludwick assigns, restated, that the Court of Appeals erred in (1) finding that Ludwick's disability, as opposed to her disease, occurred in 1992; (2) finding that Ludwick's acute allergic reactions caused by exposure to latex antigens in the workplace were a recurrence, as opposed to an aggravation, of her latex allergy disease; and (3) failing to apply the last injurious exposure rule.

In a purported cross-appeal asserted in its supplemental brief filed pursuant to Neb. Ct. R. of Prac. 2H (rev. 2002), TriWest assigns that the Court of Appeals erred when it failed to acknowledge and affirm the review panel's action sustaining TriWest's cross-appeal in which the review panel found that Ludwick failed to prove any exposure to latex during the course of her employment with TriWest. We do not reach this issue on appeal because TriWest did not petition for further review. See rule 2.

STANDARD OF REVIEW

[1] An appellate court may modify, reverse, or set aside a Workers' Compensation Court decision only when (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court did not support the order or award. Morris v. Nebraska Health System, 266 Neb. 285, 664 N.W.2d 436 (...