When it Stinks

Monday, February 12, 2018 | 0

The workplace can be a challenge. There is work to be done, deadlines to meet, and challenges to face. And, there are coworkers. Sometimes they assist with the tasks and sometimes they can add to the challenges. Over the years, the subject of perfume and cologne has become the subject of sarcasm and humor. There is even a website devoted to the phrase "nice perfume, must you marinate in it." I have experienced the urge to say that sentence aloud a few times over the years. 

David Langham

A recent New York appellate decision reminded me of aromas in the workplace. In November, the court decided Boyuk v. Triad Retail Media, 2017 NY Slip Op 08075.  Ms. Boyuk worked as a manager for the employer. She alleged a workplace injury from exposure "to aroma therapy fragrances emitted from a fragrance diffuser in her workplace." She claimed that this exposure led to "asthma, " "lost work time and medical expenses."

Everyone has experienced aromas that are unwanted and even sickening. Just recently, I have experienced that sensation with the vehicles rented by a certain company. I found myself on the highway one early morning nauseous from the overpowering air freshener that had been put in the vehicle. When I returned the car, I complained. The vendor explained that the cars are non-smoking and when they are returned they sometimes "reek" of smoke and the freshener is used to alleviate that smell. 

Having been a rental car customer for years, I asked "but your contract says the car is non-smoking and that you will charge $100 fee to clean the vehicle." The manager agreed that is the policy. So, I then asked "if you charge to clean the vehicle, why don't you clean the vehicle?" And the manager replied "we use the air freshener to clean the vehicle." So, the apparent bottom line is that the car stinks, they charge the customer $100, keep the money, soak the car in foul smelling "freshener," and foist it upon the next unwary customer. 

In the New York workers' compensation case, the judge concluded that the employee "had sustained a causally-related occupational injury." However, the Workers' Compensation Board reversed, and denied the compensability of the alleged asthma. The Court explained that an employee has the burden to prove two critical points. First "the existence of an occupational injury." That is, there must be evidence of the alleged injury or disease. Second, the employee must prove "that his or her alleged injury is causally related to his or her employment." That is that the existence was caused by the work. 

The Court noted that this employee "testified that she is sensitive to fragrances." On the date of injury, a coworkers was using "an industrial strength aroma therapy diffuser," which she alleged "caused an adverse respiratory reaction." The employee came under the care of "a physician and allergist," who diagnosed bronchial asthma, based upon the results of a "methacholine test." The physician "concluded that claimant had sustained causally related occupational asthma."

A pulmonologist also examined the employee and "conducted pulmonary function tests" and other diagnostic testing in an "independent medical examination of claimant." The pulmonologist found no "objective findings to support a diagnosis of a pulmonary disability or any respiratory impairment." The plumonologist opined that there was no lung disease evidenced. 

The pulmonologist also reveiwed medical records, and noted that the employee was first diagnosed with asthma in 2012. Despite this, the employee had completed a form during the present workers' compensation case, denying any prior asthma diagnosis. The pulmonologist noted that the diagnosis in 2012 was sufficiently significant that the employee "was prescribed short and long-term acting bronchodilators" for asthma symptoms.  There is no significant discussion of the legal effects of this in New York, but in Florida there are significant potential effects for not disclosing an accurate and complete medical history. 

As so often occurs in workers' compensation disputes, conflicting medical evidence was thus presented. The New York Board decided that the pulmonologist's testimony was more compelling or credible, and therefore it was accepted over the allergist. In affirming the Board, the appellate court reiterated that such a determination of fact was appropriately up to the Board. The Court held that conclusion was supported "by substantial evidence and it will not be disturbed."

Thus, though the smell of that recent rental car was undoubtedly nauseating (ask me, I'll tell ya), there is no evidence that the smell injured me. (coincidentally, I wear no cologne or aftershave; on the day I drove the malodorous car, the stench permeated my clothes sufficiently that I was asked hours later that day "are you wearing a new cologne"). Had a doctor concluded that the malodorous car had caused an injury, it is possible that a different doctor might reach a contrary conclusion. In these situations, it then becomes a challenge for the judge to determine which expert physician to believe. Determining the credibility of experts can be a challenge, as discussed in Experts and Fakers. 

In the end, the best tools for supporting conclusions and opinions is likely the organization and presentation of the process that led to them. In other words, conclusions and diagnosis are important, but more important is explaining how the medical findings support those outcomes. This is described in more detail in Eliciting Effective Testimony. It is not practical or perhaps even possible to know what drove the New York Board's conclusion in this case. But, the decision supports that one expert, the pulmonologist, better explained or supported the conclusions regarding either the existence of injury or the relationship to the employment.  

It is worth noting that the employee's statement denying prior asthma diagnosis or treatment, demonstrated to be false, was likely not helpful to her her cause. Whether that actually worked against her claims, or merely failed to support them, the fact is that providing as accurate a medical history as possible is advisable.

In the end, we realize that the worker was exposed to a stench in the workplace. It is possible to commiserate with the employee, knowing that most of us have likely been similarly exposed to malodorous environments, whether an intentionally soaked rental vehicle or an unwittingly aroma-soaked coworker. We can perhaps all agree that that sometimes work stinks. But, whether  injury exists and whether that injury is related to work, are points that require medical proof.

 So, smells may annoy or perhaps injure. They could cause airway reaction, or perhaps merely aggravate it. Whether we are injured or not, perhaps we all deserve a workplace that is not saturated in perfume, cologne, body spray, or air freshener?

David Langham is deputy chief judge of the Florida Office of Judges of Workers' Compensation Claims. This column was reprinted with his permission from his Florida Workers' Compensation Adjudication blog.