West Virginia Record

Tuesday, April 7, 2020

Delay in treatment costs woman Workers' Comp

By Tami Kamin Meyer | Dec 12, 2013


CHARLESTON — In order to show a link between employment and an injury, an employee should seek medical attention as soon as possible, the state Supreme recently ruled.

On May 22, 2010, petitioner Kimberly J. Simons went to Jackson General Hospital, complaining of a sore throat and restricted breathing. She returned two days later with the same symptoms, plus vomiting.

When being examined by Dr. Gaal on May 24, 2010, she said her symptoms were caused by inhaling fumes while brush-painting signs at work earlier that month. Dr. Gaal diagnosed her with partial airway obstruction and allergy syndrome from inhalation of noxious paint fumes.

Simons applied for Workers' Compensation benefits based on Dr. Gaal’s diagnosis, which also included a note from a Dr. Crigger, another physician who had examined the patient. He wrote that Simons had not suffered from an infection but an allergic reaction to the paint fumes.

Following that, a third physician, Dr. Dauphin, reviewed Simons’ claim. He found no objective medical evidence that paint fumes had caused her symptoms. Dr. Dauphin also opined since there had been a “significant delay” between the alleged inhalation of fumes and Simons’ subsequent treatment, other things could have caused her throat to swell.

Based on Dr. Dauphin’s report, the claims administrator denied Simons’ request for Workers' Compensation. The Office of Judges affirmed the denial on Aug. 11, 2011, which the Board of Review subsequently upheld on December 22, 2011. Mrs. Simons appealed that ruling.

The Office of Judges surmised not only had Simons failed to show she suffered a work-related injury or disease, but that another medical report, issued by a Dr. Zaldivar, revealed Simons had a longstanding history of chronic allergy problems.

Partly because Simons did not seek medical treatment immediately upon falling ill, Dr. Zaldivar concluded her ailments could have been caused by any number of irritants other than the inhalation of paint fumes. The state Supreme Court affirmed the decision.

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