On appeal from the Department of Labor, Division of Workers' Compensation.
The opinion of the court was delivered by: Lisa, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 29, 2008
Before Judges Lisa, Sapp-Peterson and Alvarez.
The sole issue in this workers' compensation case is whether Doris Sexton's alleged aggravation of her pre-existing chronic obstructive pulmonary disease (COPD), caused by inhaling a particular perfume sprayed by a co-employee in her employer's workplace on three occasions on the same day, arose out of the employment. The judge of compensation reasoned that because the alleged reaction to the perfume was the result of a personal proclivity of Sexton, any aggravation of her pre-existing condition did not arise out of the employment. We disagree and reverse.
At the time of the January 3, 2004 accident, Sexton was sixty-four years old and a part-time licensed practical nurse at Cumberland Manor, a nursing home operated by the County of Cumberland. She worked weekends from 7:00 a.m. to 3:00 p.m. She had previously worked there from the late 1970s until the early 1980s, and then resumed on a part-time basis in the late 1990s.
On Saturday, January 3, 2004, Sexton arrived at work at 6:45 a.m., relieved the nurse from the prior shift, and began her usual work routine, dispensing medications in A hall. Sometime after 10:00 a.m., she went to B hall, where she detected the smell of a perfume in the air. She continued her work and by late morning went to the day room to dispense medications and feed residents. A nurse's aide sprayed the same perfume in the air. Sexton experienced difficulty breathing. She hurriedly completed her assigned task and left the day room. She proceeded directly to the nurse's station and reported what happened to the supervising nurse. Sexton told her she could not get her breath and was experiencing a breathing problem. Because of Sexton's breathing difficulties, another nurse performed Sexton's afternoon rounds, beginning at about noon. Sexton spent the remainder of her shift seated, doing desk work. As she described it, "I did some paperwork, some charting, and I didn't get up and move around because I was having a problem."
Just before Sexton completed her shift at 3:00 p.m., the nurse's aide who had previously sprayed the perfume was seated at a nearby desk and again sprayed it. Upon smelling it, Sexton "got away from her... went over to count the narcotics with the nurse going out" and immediately clocked out, left the building, and began walking to her car. She was unable to reach her car because she was "breathless." She sat on a bench outside of the building for about twenty minutes. She then walked to her car and sat there "a good long while." She then made the twenty minute drive home, arriving at about 4:30 p.m. She went directly to bed.
The next morning, Sexton's breathing difficulties continued. Her daughter transported her to a local hospital. The hospital record stated that she was admitted due to complaints of shortness of breath resulting from exposure to perfume at work. She was discharged on January 16, 2004. Her discharge summary diagnosis was acute pulmonary disease exacerbation as a result of being exposed to odors at work. From the hospital, Sexton was transferred to a rehabilitation center until January 23, 2004, after which she was transferred to a different hospital until January 30, 2004.
Since then, Sexton has been oxygen-dependent on an almost constant basis and has never returned to work. Prior to January 3, 2004, she had an active lifestyle and worked regularly. The judge of compensation found that since then her "physical health and abilities have radically deteriorated," and her life activities have been greatly curtailed.
Before January 3, 2004, Sexton smoked an average of one pack of cigarettes per day for forty-three years. She has not smoked since then. She was diagnosed with COPD as early as 1989, and she used an inhaler as needed.
The judge of compensation heard medical testimony from a pulmonary expert for each side. Sexton's expert opined that Sexton's pre-existing COPD was exacerbated by the perfume inhalation and two episodes of intubation during her second hospitalization, rendering her totally and permanently disabled. Respondent's expert opined that Sexton's perfume exposure "was not a relevant factor" in her current level of disability and that the intubations might have caused only a temporary worsening of her condition. He found Sexton's overall pulmonary disability was 75% permanent partial disability, none of which was attributable to the perfume exposure or the intubations.
Because the judge of compensation determined that any aggravation of Sexton's pre-existing condition was not compensable, he did not make findings on the causation issue. Instead, he dismissed Sexton's petition against her ...