Work Injury That Worsens Over Time May Still Be Compensable Years Later

Janice Weber-Brown, a Pennsylvania nurse, was exposed to a virus while on duty at Lancaster General Hospital almost 30 years ago. The herpes simplex virus (HSV) eventually led to her blindness in one eye in 2007. Despite the fact that this condition appeared decades later, she filed for and was awarded workers' compensation benefits for this blindness.

Weber-Brown's workers' compensation claim was initially granted by a Workers' Compensation Judge (WCJ), affirmed by the Pennsylvania Workers' Compensation Appeal Board (the Board) and reaffirmed by the Commonwealth Court of Pennsylvania in December 2009.

When the Commonwealth Court reviews a Board decision, the court must decide if the Board made legal errors, if constitutional violations exist and if the factual record supports the legal findings. In essence, the WSJ's decision granting benefits met with approval by both reviewing bodies.

Seeds of Blindness

The claimant contracted HSV in approximately 1980 when spit splattered into her left eye from an infected and coughing tracheotomy patient. She immediately notified her supervisor and was sent to the hospital emergency room for treatment. She was treated there for the condition at no cost a few more times as well.

She left employment at the Lancaster hospital in 1985. The virus flared up at infrequent intervals over the next two decades or so, causing blurry or cloudy vision, aching, and swelling that would subside with treatment. Unfortunately, a bout in late 2006 was resistant to treatment, leading to blindness in that eye by February 2007, at which time she gave notice of the injury to her former employer. The HSV had caused scarring of her cornea and her doctor recommended a cornea transplant, which she had that May, but which did not restore her vision.

Lack of Documentation

Not surprisingly, the hospital's records from the late '70s and early '80s are not complete and it could not find record of the injury itself or of claimant giving notice of the HSV exposure years ago. Under Pennsylvania workers' compensation law, an injured employee must give notice of injury within 120 days from injury to his or her employer.

However, Weber-Brown was able to get two employees to testify at her workers' compensation hearing of their recollections of her telling them of the incident and being treated on the hospital premises in its emergency room for the exposure. The claimant also gave written notice at the time of the 2007 deterioration.

In addition, the court found substantial evidence that the vision loss came from the work exposure years before, based on the claimant's consistent testimony, the opinions of expert doctors and the testimony of the other two nurses, despite the lack of any corroborating hospital documentation.

Date of Injury

Despite that the injury had its roots in the claimant's viral exposure at work years ago, the date of injury for purposes of the claim was legally found to be May 16, 2007, the date the doctor advised Weber-Brown of the need for a transplant.

Weber-Brown was granted benefits based on the wage rate she was earning with a different employer at the time of the blindness in 2007. The employer-hospital asserted that the rate of compensation should be based instead on the pay rate she made at the time of the viral infection years ago or that it should be zero because she no longer worked for Lancaster General at the time the blindness developed.

Claimant's case is called a specific-loss case because Pennsylvania workers' compensation law sets out payment formulas for the loss of use of certain body parts or bodily functions (called members), such as limbs, eyes or hearing. The court noted that in a specific-loss situation the date of injury is when the doctor tells the worker that the work-related injury to the member has caused for all intents and purposes total loss of use.

A similar example cited by the court is one where an employee injured a finger at work, but the finger was not amputated until the condition deteriorated over a period of eight years from the initial incident. In that case, the date of specific loss injury was determined to be the date of amputation. Accordingly, the court found Weber-Brown's eye loss injury to have happened on May 16, 2007, when the doctor told her she needed a transplant, rather than on the date of viral exposure years earlier. Therefore, the benefit rate was properly based on her 2007 wages.

In response to the hospital's alternative assertion that the claimant should get nothing because she no longer worked for it on the legal date of injury in 2007, the Board wrote in its decision that such a finding "would be an absurdity as well as inconsistent with the humanitarian purpose of the Workers' Compensation Act."

Similarly, in response to the hospital's argument that the claimant missed her three-years-from-injury deadline for filing her claim, the court started the clock as of the May 2007 date of injury, making the workers' compensation claim timely.

Legal Counsel Can Be Crucial

Weber-Brown's workers' compensation case raises important issues to be heeded by future Pennsylvania claimants. Anyone who experiences a work-related condition that deteriorates over time should talk to an experienced workers' compensation attorney as early as possible. Such a worker should not automatically assume that the passage of time has made them ineligible for benefits because it will be dependent on the individual situation. Clearly determining the date of an injury for purposes of workers' compensation eligibility can be a complex legal question deserving of knowledgeable legal advice.