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Fernandes v. Technic11/30/2005
DECISION OF THE APPELLATE DIVISION
This matter was heard before the Appellate Division upon the respondent/employer's appeal from the decision and decree of the trial court which granted the employee's original petition and awarded weekly benefits for partial incapacity from November 29, 2001 and continuing due to the development of urticaria, or hives. The employer filed a claim of appeal basically alleging that the trial judge was clearly erroneous to rely upon the opinion of a physician when the foundation of that opinion was faulty. After thorough review of the record and consideration of the arguments of the parties, we affirm the decision and decree of the trial judge.
The employee worked as a research chemist for Technic, Inc., for eleven (11) years. Her job involved the development and testing of products for the plating industry. The work required the use of tin, lead, various additives, liquid metals, and brass with copper plating. While working with these chemicals, she wore protective equipment including a lab coat, safety glasses, and vinyl gloves.
The employee had returned to work on November 5, 2001, after an absence of approximately six (6) months due to pneumonia and recurrent bronchitis. Upon her return to work, she resumed her regular duties as a research chemist. The employee testified that toward the end of the month, she noticed that her hands were irritated and reddened. She was unsure of the cause, but speculated that either contact with a chemical through a pinhole in her vinyl gloves or over-washing of her hands had caused the irritation. Because of this irritation she began to wear white cotton gloves under her vinyl gloves on November 28, 2001.
During her workday on November 28, 2001, she noted redness and some small lumps on her hands around the joints of her fingers. She finished the work day and then picked her children up from school before returning home. After retrieving her children, she noticed that her hands were extremely hot and itchy and hives were breaking out on her hands, arms, and neck. Ms. Fernandes obtained some Benadryl, an over-the-counter anti-histamine commonly used to treat allergic reactions, from her neighbor. She took the medication when she got home, some more that night, and another dose in the morning. The reaction had subsided by morning and Ms. Fernandes went to work. While the employee was at her station that morning, a co-worker noticed that her hands and arms were starting to break out again. The employee reported the situation to her safety director, Mr. Wayne Ganim, and then left work in order to see her primary care physician, Dr. Akua D. Wiredu.
By the time the employee was seen by Dr. Wiredu later in the day on November 29, 2001, the doctor noted only mild erythema on the left arm. Based upon the history provided by the employee regarding the outbreaks of the last two (2) days, Dr. Wiredu advised the employee to remain out of work until she could follow up with Dr. Thomas Hicks, an occupational medicine specialist she was seeing for respiratory complaints.
The employee saw Dr. Hicks on December 6, 2001 and related to him that she had developed a rash with redness and swelling on November 28, 2001 which spread over her arms, neck, chest, legs and face. She reported to the doctor that after taking Benadryl, the rash improved, but when she returned to work the next day, the rash came back in the same areas. At the time of the appointment, the employee's skin was clear. She testified that she had periodic bouts of hives and/or swelling and redness of her hands for a few months after work and she noted some exacerbation of this condition with exposure to cold and the outdoors.
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