My question involves workers compensation law for the state of: West Virginia.
I have asthma. My employer says I cannot file a workerís compensation claim because my asthma was a preexisting condition. They also say that I cannot prove what triggered my asthma even though there is an overwhelming smell in the building.
Iíve been employed by the for the past nine years.
In August 2018 I began to experience a reoccurrence of severe asthma and began missing work more frequently than I would like. All my absences were covered with accrued sick leave and I often worked from home on those days.
This past August (2019) I experienced a bronchial spasm, basically a mild-moderate persistent bout of asthma, which caused me to miss work more frequently to the point that my sick leave was accrual was down to four weeks.
I began to improve and by the middle part of September I was back to normal.
Shortly after I returned to work HR decided to transfer me to another department.
This transfer included moving my office from the main building to a building that obviously has some type of volatile organic compound off-gassing which I believe is formaldehyde ( a known asthma trigger). The smell is undeniable.
This building has always caused me issues. The smell has always triggered breathing difficulties for me. I told HR I could not work there because of my asthma. My current supervisor went to bat on my behalf without effect.
I practically begged not to be moved to the building. I even went so far as to meet with the university president asking him to postpone the move until I was fully recovered.
Sadly, nobody in our senior leadership listened to me until it was too late. I was in the new office for 90 minutes before I started having breathing issues - that was 9/24/19. The odor in the building started a new bronchial spasm cycle before I was fully recovered from the last one - except this time it was much worse.
By 9/26/19 I was having breathing issues 24/7. That morning, at work, I had what can only be described as a mini-breakdown. I was despondent over the thought of being sick again, of having to worry about breathing and I couldnít understand why they would put me in the position to be exposed to any trigger knowing I was already suffering from uncontrolled asthma.
They knew, because I had explained to them in emails and in my meeting with the president, that I was in the 5% of those with asthma who experience a paradoxical reaction to the drugs commonly used to treat asthma. What that means in real life terms is that I canít use a rescue inhaler - for me any asthma attack has a vastly greater potential to be fatal.
I went on medical leave on 9/26/19. My doctor cleared me to return to work on 11/4/19.
My issue is that Iíve likely suffered permanent lung damage from the last bout of asthma and I blame my employer for causing it. The extent of the damage canít be accurately gauged until the asthma is under control, but damage has occurred.
Does this fall under workerís compensation? HR told me it wasnít. They said I couldnít prove what caused my attack.
Do I have to prove exactly what caused the attack? Whatever is causing the very obvious odor caused my episode regardless of what it is. Isnít it enough that I explained in great detail that I was hypersensitive to odors and wanted to avoid a known trigger?
Based on my peak flow readings Iíve lost at least 30% of my lung capacity. I used my entire leave balance, both sick days & vacation. Now Iím forced to take unpaid days off next week for lung testing.
I qualify as disabled under the ADA if that helps.