CHARLESTON – The West Virginia Supreme Court of Appeals has ruled that a Raleigh County school cook was not injured on the job.
Kanetha Glover appealed the decision of the West Virginia Workers’ Compensation Board of Review, according to the Feb. 23 memorandum decision.
The issue on appeal is the compensability of Glover’s claim for workers’ compensation benefits.
On Jan. 19, 2016, the claims administrator denied Glover’s claim and the Office of Judges affirmed the claims administrator in its April 12, 2017, order.
The order was affirmed by the Board of Review on Aug. 28.
Glover worked as a cook for Raleigh County Board of Education and on Dec. 21, 2015, she had an asthma attack while walking through the cafeteria.
Glover attributed the asthma attack to fumes and dust from vinyl tile that was being removed. The use of her inhaler helped, but due to continued difficulty breathing, she sought treatment in the emergency room at Raleigh General Hospital. A chest x-ray revealed no active cardiopulmonary process or abnormalities. Glover was diagnosed with bronchitis.
On Jan. 3, 2016, Glover experienced another asthma attack when she was putting food in the kitchen and she attributed the asthma attack to the fumes caused by the removal of the vinyl tile. Glover was again treated in the emergency room at Raleigh General Hospital and, this time she was diagnosed with an acute exacerbation of asthma and prescribed Albuterol and Prednisone.
On Jan. 5, 2016, Glover was seen by Dr. Kathy Gunter and diagnosed unspecified asthma with acute exacerbation. On Jan. 7, 2016, Glover was seen by Dr. Gary Poling, her family physician and Poling diagnosed asthma and asthma exacerbation secondary to dust at work. He prescribed Symbicort and Singulair.
On Jan. 15, 2016, an Indoor Environmental Assessment report was completed based on samples collected on Dec. 23, 2015. The testing detected three refrigerants, all of which were well below the OSHA Permissible Exposure Limits.
The claims administrator rejected the claim on Jan. 19, 2016, as Glover’s asthma was preexisting. Glover then appealed.
In her deposition on July 20, 2016, Glover testified that she wasdiagnosed with asthma in 2010 by Poling. In October 2014, she filed a workers’ compensation claim alleging breathing problems as the result of ceiling tiles being pulled off of the ceiling and insulation, dirt and dust dumped all over her body. She had an asthma attack and was unable to breathe and the claim was held compensable.
On Aug. 10, 2016, Gunter stated Glover’s initial date of injury was in October 2014, when she reported being exposed to insulation and asbestos. The second exposure occurred on Dec. 21, 2015, when Glover was exposed to fumes.
The Office of Judges affirmed the claims administrator’s denial of the claim on April 12, 2017.
“It noted Ms. Glover’s preexisting diagnosis of asthma and previous occupational injury in which she was covered in dust and insulation after ceiling tile was pulled down in October of 2014,” the decision states. “However, the circumstances of exposure in December of 2015 and January of 2016 differed from that of 2014 as Ms. Glover was alone in the cafeteria and no active construction was going on when she had the asthma attacks in 2015 and 2016.”
Additionally, the Indoor Environmental Assessment conducted on Dec. 23, 2015, was performed under similar circumstances to those experienced by Glover on the two days she had the asthma attacks as no active construction was going on at the time of the study.
The Office of Judges found that Glover submitted “ambiguous evidence” regarding causation.
The Office of Judges found that the evidence showed Glover “suffered from an acute pulmonary event” on Dec. 21, 2015. Therefore, the Office of Judges found that Glover did not prove by a preponderance of the evidence that she was injured at work.
The Board of Review adopted the findings of fact and conclusion of law of the Office of Judges and affirmed its Order on Aug. 28.
“After review, we agree with the reasoning and conclusions of the Office of Judges as affirmed by the Board of Review,” the decision states.
W.Va. Supreme Court of Appeals case number: 17-0861
