Myers v. Vanderbilt University, No. M2008-02009-WC-R3-WC (Tenn. 5/11/2010)

Decision Date11 May 2010
Docket NumberNo. M2008-02009-WC-R3-WC.,M2008-02009-WC-R3-WC.
PartiesVICKIE J. MYERS, v. VANDERBILT UNIVERSITY.
CourtTennessee Supreme Court

Raymond S. Leathers, Nashville, Tennessee, for the appellant, Vanderbilt University.

Kirk L. Clements, Goodlettsville, Tennessee, for the appellee, Vickie J. Myers.

William C. Koch, Jr., J., delivered the opinion of the Court, in which Jon Kerry Blackwood and Donald P. Harris, Sr. JJ., joined.

MEMORANDUM OPINION

WILLIAM C. KOCH, JR., JUSTICE.

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. § 50-6-225(e)(3) (2008) for a hearing and a report of findings of fact and conclusions of law. After developing an allergy to latex, a hospital employee filed a claim for workers' compensation benefits in the Chancery Court for Davidson County. While the case was pending, the trial court declined to require the employee to submit to an independent medical examination in accordance with Tenn. Code Ann. § 50-6-204(d)(1) (Supp. 2009). The trial court conducted a bench trial and determined that the employee's latex allergy was an occupational disease. The trial court also determined that the employee had a fifteen percent impairment to the body as a whole and awarded her permanent partial disability at fifty percent. The employer has appealed. We have determined that the trial court erred by failing to require the employee to submit to an independent medical examination. Accordingly, we vacate the judgment and remand the case for further proceedings.

I.

Vickie Myers graduated from high school in 1975 and later attended the Metropolitan Davidson County School of Licensed Practical Nursing. She graduated in 1977 and became a licensed practical nurse. Ms. Myers worked in various hospitals prior to beginning her employment with Vanderbilt Orthopaedic Surgery Center in 1988.

Around 1990, Ms. Myers became certified in surgical technology. During her tenure at Vanderbilt, Ms. Myers "scrubbed cases." Scrubbing cases consists of preparing equipment for surgical procedures and providing surgical equipment to physicians during an operation. Ms. Myers was employed by Vanderbilt in this capacity until 2006.

In 2002, Ms. Myers began to develop hives and experience respiratory problems. She was examined by an allergist who informed her that she was allergic to bananas, cashews, eggs, hay, wheat, and pecans. Ms. Myers began avoiding exposure to these foods and substances. Nevertheless, she continued to suffer from chronic hives and respiratory difficulties. In 2003, Ms. Myers consulted with Dr. Samuel Marney, Jr. who determined that Ms. Myers was allergic to a number of additional foods, dyes, and beverages. Despite avoiding exposure to these substances, Ms. Myers continued to experience problems at work with hives and respiratory problems.

Though the allergic reactions had become increasingly minor at home, Ms. Myers's allergic reactions at work continued to intensify. Within thirty to forty-five minutes of arriving at work, Ms. Myers would "start itching and breaking out." She experienced numbness in her mouth, burning eyes, ankle swelling, and hives that were so severe they interfered with her ability to walk or bend.

Ms. Myers visited the Vanderbilt Occupational Health Clinic in 2005. She sought to address her allergic reactions by consulting Dr. Pat King and Dr. Melanie Swift. Drs. King and Swift sent Ms. Myers back to work without providing her with any medication.

Ms. Myers continued to experience severe allergic reactions at Vanderbilt. These reactions led her to miss work often and violate the attendance policy. Her excessive absenteeism resulted in receipt of a performance improvement counseling evaluation. In response, Ms. Myers visited Dr. Marney again in February 2005. During this visit Dr. Marney determined that Ms. Myers was allergic to latex. Dr. Marney informed Vanderbilt that Ms. Myers would need to be placed "in a latex-fee environment for it to be safe for her to work."

Vanderbilt conducted an assessment of the possibility of removing latex from the surgery suite where Ms. Myers worked. Ultimately, Vanderbilt decided against making this accommodation but instead offered Ms. Myers a job in a "latex-free" operating room at Vanderbilt's Children's Hospital. However, the Children's Hospital itself was not a latex free environment. Instead, only those objects that came into direct contact with the patients themselves were actually latex free. Furthermore, two orthopaedic surgeons practicing at Children's Hospital had received special permission to wear latex gloves.

Although Vanderbilt asserted at trial that Ms. Myers did not accept the offer of a transfer to a position at the Children's Hospital, Ms. Myers did not recall rejecting the offer. However, Ms. Myers testified that she had an intense allergic reaction to the latex in the Children's Hospital during her meeting at Children's Hospital regarding transferring to a position there and that she was forced to leave the hospital quickly. In considering transferring to a position there, Ms. Myers was worried that the hospital itself was not latex free. Ms. Myers also was concerned about working with the two physicians who continued to wear latex gloves. Although Vanderbilt assured Ms. Myers that she could informally trade assignments with other nurses, it would not create any formal structure to prevent Ms. Myers from working with the surgeons that used latex. However, it is also clear from the record that Ms. Myers objected to the transfer because she would be "on-call" on weekends once every six to eight weeks and was displeased with the idea that her patients would be children.

Ms. Myers continued to experience allergic reactions, though not as severe, despite not having worked since April 2005. She suspected the presence of latex to be the cause. In June 2005 she saw Dr. Bruce Wolf. Employing a different test than Dr. Marney, Dr. Wolf concluded that Ms. Myers was not allergic to latex. During a subsequent visit, Dr. Wolf determined that it was not the latex but the powder from latex gloves that caused Ms. Myers's allergic reactions. Accordingly, Dr. Wolf advised Vanderbilt that Ms. Myers should work solely in a powder-free environment.

Ms. Myers was given latex-free gloves after she returned to work, but she was assigned to a small operating room where the aerosolized powder-exposure was actually worse. Ms. Myers objected. The Vanderbilt nurse manager informed her that the operating room could not be powderless. Ms. Myers still experienced burning eyes, itching, numbness, swelling, and hives upon her return to work. She continued to struggle with excessive absenteeism. Ultimately, Ms. Myers was terminated in 2006 for excessive absenteeism.

In October 2006, Ms. Myers sought treatment from Dr. Travis Cain for her allergies. Dr. Cain concluded that Mr. Myers's latex allergy was so intense that it required avoiding even casual exposure to latex. Acting on Dr. Cain's advice, Ms. Myers made her home latex free. While these measures minimized her allergic reactions at home, Ms. Myers continued to experience allergic reactions any time she left the confines of her home.

Ultimately, Drs. Cain and Marney concluded that Ms. Myers suffered from a latex allergy. Both doctors also concluded that more likely than not, Ms. Myers's employment with Vanderbilt was the cause of her latex allergy. Although Dr. Wolf believed that Ms. Myers was allergic to the powder on the latex gloves, not the latex itself, all three doctors concluded that an individual can develop an allergy to a chemical or a substance as the result of frequent exposure to that chemical or that substance.

Ms. Myers has not been able to maintain employment after the termination of her employment at Vanderbilt. Although she has sought positions with various hospitals, these hospitals have informed her that they are unable to provide a latex-free work environment. She has also briefly held a number of other jobs including driving a flat-bed truck hauling concrete and delivering newspapers. However, the allergic reactions she experienced in performing these jobs have caused her to quit and have inhibited her from securing other employment. Ms. Myers has investigated the possibility of furthering her education by taking online courses via her home computer. However, she is limited in the further educational opportunities available to her because high-speed internet is not available in the area in which she lives and enrollment in such courses, she indicated, requires high-speed internet access.

II.

Ms. Myers filed a workers' compensation complaint on October 16, 2006 in the Davidson County Chancery Court. Vanderbilt answered the complaint on December 11, 2006. In a motion filed on March 14, 2008, Vanderbilt sought to compel Ms. Myers to submit to an examination by a dermatologist of its choosing that would be accompanied by a referral for testing to a second dermatologist. The trial court denied the motion. The case was tried before the Davidson County Chancery Court on May 29, 2008, with a Judgment entered on June 16, 2008.

The trial court found that Ms. Myers suffers from a latex allergy, and concluded that her latex allergy is an occupational disease that was caused by Ms. Myers's employment with Vanderbilt. The court also determined that Ms. Myers did not make a meaningful return to work and found that her impairment rating was fifteen percent (15%) to the body as a whole. It assessed Ms. Myers's permanent partial disability at fifty percent (50%), employing a three and one-third (3 a) times multiplier. The...

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