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In re Lockheed Martin Corp.12/21/2001
Compensation Appeals Board
The petitioner, Lockheed Martin Corporation, appeals a decision of the New Hampshire Compensation Appeals Board (CAB) awarding the respondent, Catherine House, workers' compensation benefits for multiple chemical sensitivity syndrome (MCSS). We reverse.
The following facts were found by the CAB. The respondent began working for the petitioner in June 1997. Prior to that time, she had developed MCSS. That condition manifested itself through symptoms including burning in the mouth, chest congestion, a choking sensation, headaches, and joint and stomach pain during exposure to a number of common scents such as perfumes, colognes, body lotions, hairsprays and deodorants.
After a number of uneventful months in the petitioner's employ, the respondent was transferred to corporate headquarters where she worked with eleven women in a room separated by cubicles. The respondent began to suffer symptoms of MCSS, making it almost impossible to perform her job . Despite the petitioner's attempts to accommodate the respondent, she left work on her doctor's orders for three weeks in December 1998. The situation was eventually resolved by providing the respondent a separate room in which to work.
The respondent sought workers' compensation benefits for her three-week absence. A hearing officer determined that the respondent "met her burden of proof that she experienced an aggravation of symptoms related to pre-existing MCSS that arose out of and in the course of employment at Lockheed Martin. As a result, the [respondent] was temporarily totally disabled December 1 through December 20, 1998." The petitioner appealed to the CAB, which also found the respondent entitled to compensation. The petitioner now appeals to this court.
"We will not overturn the [CAB's] decision absent an error of law, or unless, by a clear preponderance of the evidence, we find it to be unjust or unreasonable." Appeal of N.H. Dep't of Health & Human Servs., 145 N.H. 211, 213 (2000). RSA 281-A:28 (1999) provides for the payment of temporary total disability benefits "to an employee sustaining a personal injury " that is totally disabling, but temporary. RSA 281-A:2, XI (Supp. 2000), in turn, defines personal injury , in part, as "accidental injury or death arising out of and in the course of employment, or any occupational disease or resulting death arising out of and in the course of employment." Because occupational disease is defined to exclude a disease that pre-existed the employment, see RSA 281-A:2, XII (Supp. 2000), the respondent concedes that this case does not involve an occupational disease. Thus, whether the respondent is entitled to benefits depends upon whether she suffered an "accidental injury . . . arising out of and in the course of employment." RSA 281-A:2, XI.
The petitioner first argues that the respondent's injury was not accidental because the symptoms she experienced "were an 'expected' and nonaccidental consequence of her pre-existing disease." We agree. "It is well settled that the accidental quality of a compensable injury may consist of an unexpected effect as well as an unexpected cause. That is, even though the cause may have been routine and not accidental, a claim is compensable if the effect on the employee is unexpected." Appeal of N.H. Dep't of Health & Human Servs., 145 N.H. at 214 (quotation and brackets omitted). The respondent argues that it was not her sensitivity to the odors that was unexpected but the "dramatic rise in blood pressure which poses a significant health risk that constitutes the unexpected effect."
We fail to find anything in the record, however, that demonstrates that the respond
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