Walsh v. K-Mart Corp.

Walsh v. K-Mart Corp., No. WC12-5442 (W.C.C.A. Nov. 19, 2012). Affirmed.  The Supreme Court affirmed without opinion on August 22, 2013.

The main issue in this case was whether a pneumonia-induced coughing spell that led to back pain constituted a superseding, intervening cause of the Employee’s back pain and disability, such that the original work-related back injury was no longer a substantial contributing cause of the Employee’s condition.

The employee had a compensable 1990 back injury with the Employer that led to a laminectomy. Her pain was mostly relieved, but she had some intermittent flare-ups through the years. She continued to work for the employer for over 15 years, and needed little time off due to back pain. She had a fusion surgery after experiencing increased back pain following a sneezing episode in 2007. After the fusion, she returned to work for the Employer at a very light duty job. In 2009 she developed pneumonia, and during a coughing spell at home, she developed increased back pain, after which time she did not return to work. The compensation judge found that she was permanently and totally disabled due to her original 1990 back injury. The Employer and Insurer appealed, arguing that the coughing spell from pneumonia was a superseding, intervening cause of the employee’s disability. Although they acknowledged that a cough or sneeze, in and of itself, does not rise to the level of “superseding, intervening cause” under the law, (and admitted that the 2007 sneeze was not a superseding, intervening cause), they argued that because pneumonia is an “abnormal” illness, and because the pneumonia caused the cough, the cough was a superseding, intervening cause of the disability. The W.C.C.A. rejected this argument and found that a cough or sneeze was not sufficient to be a superseding, intervening cause, regardless of the underlying cause of the cough or sneeze.