Madison Acad., Inc. v. Hanvey

• Decision Date: 04 April 2014
• Docket Number: 2120753.
• Citation: 179 So.3d 118
• Parties: MADISON ACADEMY, INC. v. Lisa HANVEY.
• Court: Alabama Court of Civil Appeals

179 So.3d 118

MADISON ACADEMY, INC.

v.Lisa HANVEY.

2120753.

Court of Civil Appeals of Alabama.

April 4, 2014.

Rehearing Denied July 18, 2014.

D. Edward Starnes III and Jeffrey T. Kelly of Lanier Ford Shaver & Payne P.C., Huntsville, for appellant.

L. Thompson McMurtie and Mary Ena J. Health of L. Thompson McMurtie, L.L.C., Huntsville, for appellee.

MOORE, Judge.

Madison Academy, Inc. ("the employer"), appeals from a judgment in which the Madison Circuit Court ("the trial court") awarded Lisa Hanvey ("the employee") permanent-total-disability benefits pursuant to the Alabama Workers' Compensation Act ("the Act"), Ala.Code 1975, § 25–5–1 et seq. We reverse.

The Facts

Myasthenia gravis

("MG") is an idiopathic disease in which the immune system of the human body spontaneously produces antibodies to attack certain proteins responsible for forming neuromuscular junctions, resulting in dysfunction of muscular contraction. According to the medical experts who testified in this case, the employee developed MG at some point before April 22, 2011, when she first complained to an optometrist of double vision, or diplopia, a classic early sign of the disease. However, neither the optometrist nor her family physician, Dr. Cheryl Bazzle, who saw the employee on April 25, 2011, diagnosed MG. As a result, the employee did not immediately receive any treatment for the disease, which, although it cannot be cured, usually can be controlled successfully with medication that suppresses the production of destructive antibodies. Without treatment, however, the disease will progress and its symptoms would be expected to wax and wane.

The employee worked as a janitor on the campus of the private school operated by the employer and was able to fully perform the duties of her job without accommodation before May 2011. The employee testified that, on May 11, 2011, she twice was exposed to the strong odor of chemicals for approximately 45 minutes while walking up and down stairs adjacent to a school gymnasium. At that time, a contractor was refinishing the floors of the gymnasium using products that could be irritating or harmful to the respiratory system. The employee testified that, after smelling the odors from the gymnasium, she developed a strong headache, rawness in her throat, and difficulty talking and breathing, but, she said, she continued working after stepping outside to clear her head. The employee testified that her diplopia

worsened three days later, so she arranged an appointment with an ophthalmologist who, on May 20, 2011, ruled out a tumor as the cause of the employee's condition and diagnosed a "visual migraine."

The employee testified that, beginning on May 31, 2011, and extending to mid-June, she assisted in moving furniture and stripping the wax from the cafeteria and classroom floors on the employer's campus. As part of that process, she was exposed to products containing chemicals that could be irritating or harmful to the respiratory system if inhaled in sufficient concentrations. The employee testified that she had assisted in the wax-stripping process every summer of her employment but had experienced a headache from the smell only the first summer. The employee, however, testified that, in June 2011, during the stripping process, she began to have trouble breathing.

The employee returned to visit Dr. Bazzle on June 13, 2011, complaining of shortness of breath, which, she said, had begun one week earlier following exposure to chemical fumes and a change in her medication. The employee also complained of chest pain, dizziness, headaches, pedal edema, phlegm production, rhinorrhea, voice change, and fatigue. In a letter delivered to Carol Brittain, the business manager for the employer, Dr. Bazzle opined that the chemical exposure from stripping the floors was exacerbating the chronic allergies and chronic sinusitis

for which the doctor had long been treating the employee. Dr. Bazzle advised that the employee should avoid exposure to any airborne chemicals, and she referred the employee to an allergist. Brittain informed the employee's supervisor to reassign the employee from stripping the floors and to obtain a chemical-deterrent mask for the employee.

At the employee's request, the employer filed a first report of injury on June 17, 2011, and referred the employee to an authorized treating physician. On June 21, 2011, the employee visited Dr. Bazzle with complaints of a worsening of the problems from her last visit. Dr. Bazzle diagnosed the employee with allergic rhinitis

and probable asthma and recommended that the employee avoid all chemicals at work and at home. Later that same day, the employee visited Dr. Syed Hasan, the employer's authorized treating physician, who diagnosed the employee with acute bronchitis from the chemical fumes and told the employee to wear a mask while working. The employee testified that she was not breathing well and could not physically perform the job, so she did not return to work after June 21, 2011.

The employee received continued treatment for bronchitis

through the employer on June 27, 2011. On July 5, 2011, the employee visited Dr. Shashi Kumar, an allergist, on referral from Dr. Bazzle. Dr. Kumar noted that the employee had recurrent sinusitis and chronic nonallergic rhinitis, which was triggered by strong odors. Dr. Kumar also found that the results of the employee's breathing test showed that she had severe restrictive breathing. Dr. Bazzle testified in her deposition that the restrictive-breathing findings resulted from the chemical exposure, as indicated in Dr. Kumar's records. The restrictive-breathing findings were further confirmed by Dr. Laurence Carmichael, a pulmonologist, who examined the employee on July 20, 2011, at the expense of the employer.

On August 3, 2011, the employee returned to Dr. Bazzle complaining of continued breathing problems, diplopia

, weakness, and fatigue. At that point, Dr. Bazzle indicated in her clinical notes that she suspected the employee may have MG. Dr. Bazzle referred the employee to Dr. Lanning Kline, a neuro-opthamologist at the University of Alabama at Birmingham Hospital ("UAB"), to confirm the diagnosis. On August 8, 2011, Dr. Kline performed a battery of tests on the employee at UAB. Before the employee could receive the test results, however, she experienced a severe depletion of oxygen-saturation levels on August 10, 2011, causing Dr. Bazzle to admit her to the hospital. Dr. Bazzle described the sudden decompensation of the employee's condition as a "myasthenic crisis."

From August 10 to August 20, 2011, while in the hospital, the employee received treatment for respiratory failure from Dr. Murthy Vuppala. Dr. Amit Arora, a neurologist, treated the employee with medications designed to combat an acute exacerbation of MG. Dr. Bazzle testified, however, that the UAB testing had not detected MG and that the tests conducted during the employee's hospital stay also had not found the disease. Nevertheless, the employee responded positively to the treatment provided to her for MG, and her breathing difficulties improved to the point that she could be discharged. A week later, Dr. Arora admitted the employee into a different hospital for two days after she experienced recurrent symptoms of dizziness, weakness, and difficulty swallowing. Dr. Arora also readmitted the employee to the same hospital on September 22, 2011, for continued weakness and other symptoms of MG. During that stay, Dr. Arora received laboratory results from the Mayo Clinic definitively diagnosing the employee with anti-MuSK MG, a rare form of the disease not diagnosable from usual protocols. Dr. Arora modified the employee's treatment accordingly, and the employee's condition and symptoms improved by the time of her discharge on September 30, 2011.

On October 7, 2011, Dr. Arora wrote the employee a letter in which he informed her of her diagnosis of anti-MuSK MG. Dr. Arora opined:

"It is very possible that the exposure that you had at work and your significant activity could have aggravated the condition. You significantly worsened and required multiple hospitalizations and multiple IV infusions

and at times, myasthenia can be triggered by certain medications or by excessive activity or exposure to certain chemicals or toxins. Hopefully, you should improve even further, as you will have significant disability at this time that prevents you from working for more than a few hours a day.

"I hope that you continue to improve, but I strongly recommend that you return back to your normal baseline activities at a cautious pace, as you have a potential of worsening of your underlying condition if you return too aggressively."

Dr. Arora continued to treat the employee with medications for MG and noted improvement in her condition in November 2011, although she remained symptomatic and unable to work at that time. On November 13, 2011, Dr. Arora wrote:

"I do believe that the exposure you have had to the chemicals more than likely caused respiratory difficulties that led to you being hospitalized in the intensive care and ultimately led to this diagnosis.

"We would like to avoid further episodes in the future and we have recommended that you avoid any of these exposures in the future as well."

Due to continuing MG symptoms, the employee consulted Dr. Gwen Claussen, a neurologist at UAB, on December 1, 2011. Dr. Claussen changed the employee's medications and opined that she could not work at that time due to her weakness. In a progress note dated January 13, 2012, Dr. Arora wrote that he believed that the employee was not capable of long-term employment based on her physical condition.

Dr. Claussen eventually recommended that the employee see Dr. Anjaneyulu Alapati, a local physician specializing in the treatment of MG. When Dr. Alapati first saw the employee on March 29, 2012, she had been through months of medical therapy designed to address her anti-MuSK MG. On physical exam, Dr. Alapati...