VA: partial comp. disability benefits awarded: return to work did not let employer off hook.

CASE FACTS: In February 2003, Dana Chase began working for Infineon Technologies North America Co. (Infineon). On Mar 3, 2003, she was exposed to chemicals at work and developed allergy symptoms, including burning eye and headaches. She received hospital treatment in April 2003 and twice in May

2003. Initially, her symptoms improved when she was not in the workplace, but increased upon her return to work. Dana stopped working for Infineon in May 2003. The parties stipulated that Dana suffered from an "occupational disease" caused by chemical exposure in May 2003. Dana received worker's compensation benefits. Eventually, Infineon sought a ruling that it was no longer obligated to pay benefits on the grounds that an employer's obligation ceases "once an employee is no longer working in the injurious exposure environment and has completely recovered from a disabling condition due to exposure to that environment." Infineon contended that the medical records and the claimant's testimony established that her symptoms resolved when she was not exposed to the chemicals in her workplace. The Worker's Compensation Commission disagreed. It found that the claimant's condition had not been resolved. Further, it found that the claimant required periodic treatment for her condition and that she suffered from daily symptoms for which she used albuterol. The Commission noted that she was unable to return to her pre-injury work as well as to other work environments because of her condition following workplace exposure. Infineon appealed.

COURT'S OPINION: The Court of Appeals of Virginia affirmed the Commission's decision. The court viewed the evidence in the light most favorable to the prevailing party, the employee. The court found that credible evidence supported the Commission's finding that the claimant was partially disabled as a result of her exposure to chemicals in her pre-injury work. The claimant stated she had not returned to the emergency room, but she never stated she did not require further medical treatment. She admitted that she could work, but she could only do so "in an environment that [she is] not going to be subjected to heavy fumes and ... chemicals." Dr. Kevin Cooper, a pulmonologist, performed an Independent Medical Examination (IME). He noted that since leaving Infineon, the claimant was "more sensitive to all types of airborne odors and irritants and had to limit her travel away from home to places where the air quality is likely to be good." The court affirmed the Commission's decision that the employee had not been returned to her pre-injury status and was, in fact, partially disabled. Infineon Technologies North America Co. v. Chase, 2008 VACA0313-07-2-(01/15/2008) S.E.2d -VA

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A, David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.