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'Toxic' Mold: Will It Become a Workers' Comp Nightmare?

Ed McMahon sued his homeowner's insurance company for $20 million, claiming the insurance company botched a simple repair on a broken water pipe, resulting in the spread of "toxic" mold throughout his 8,000 square foot Beverly Hills mansion. He asserted that the mold caused him and his wife to become ill and claimed their sheepdog, Muffin, developed respiratory problems and died. McMahon ultimately settled with all of the defendants, the last of which paid $230,000.

Erin Brockovich has also joined the fight against toxic mold as a result of the discovery of mold in the million-dollar home she purchased with at least some of her movie royalties and the bonus she received from her highly publicized legal victory. She made an appearance at the California state capitol to voice her support for Senate Bill 732, which would make builders and contractors responsible for mold, and "toxic" mold would have to be disclosed if any home is sold.

Although the above two examples are claims associated with the discovery of mold in residential properties, the trend will likely expand quickly into the workers' compensation arena. In fact, it is already occurring. With the widespread media coverage of "toxic" mold issues, the typical worker has been bombarded with stories of the adverse health effects of exposure to mold. It is, therefore, not surprising that the discovery of mold in the workplace often results in not only expressions of concern among employees, but workers' compensation medical or disability claims. As a result, employers should take the issue seriously.

At present, medical science is inconclusive as to a casual link between mold and most illnesses. However, according to a recent statement from the Centers for Disease Control, "while there remain many unresolved scientific questions, we do know that exposure to high levels of molds cause some illnesses in susceptible people." The CDC contends that conditions can include allergic rhinitis/conjunctivitis, allergic asthma, and hypersensitivity pneumonitis. These conditions allegedly can be caused by ingestion or inhalation of high levels of mycotoxins, the toxin produced by some molds. However, it is not known whether molds cause other adverse health effects, such as pulmonary hemorrhage, memory loss, or lethargy, or what is commonly referred to as "sick-building syndrome." It is also not known if the occurrence of mold-related illnesses is increasing.

There are a number of barriers that need to be overcome in investigating the possible effects of molds on health. There are currently no accepted standards for mold sampling in indoor environments or for analyzing and interpreting the data in terms of human health. Molds are found everywhere in the environment; therefore, it is not unusual that mold is discovered when a sample is taken. However, it is not known what quantity of mold is acceptable in indoor environments with respect to human health.

As with most areas of medicine, one is often able to find an "expert" willing to make statements as to medical causation in a particular case that are beyond the generally accepted position of the relevant medical community. As expected, this is so in cases involving claims of adverse health effects associated with mold exposure. One only needs to search the Internet under the topics "toxic mold" or "black mold" to uncover numerous medical practitioners willing to connect such conditions as memory loss and lethargy to mycotoxin exposure. These search topics likewise produce a long list of attorneys willing to file a claim on behalf of anyone claiming to be suffering such mold-related health effects. One particular physician advertising in the treatment of "sick-building syndrome" and "the detection and treatment of immunological diseases from toxic exposures" has listed the following symptoms as being related to mold, mildew and fungus exposure:

  • fatigue
  • short-term memory loss
  • numbness and tingling
  • anxiety and depression
  • headaches
  • mood swings
  • changes in personality
  • aches and pains in arms and legs
  • nosebleeds
  • cough
  • shortness of breath
  • sore throat
  • abdominal pain
  • bleeding from the rectum
  • hair loss
  • tremors
  • behavior problems in children
  • skin rashes
  • fibromyalgia, hypoglycemia and chronic fatigue syndrome
  • pet illnesses

A review of this list quickly reveals the potential for abuse in relation to workers' compensation claims. With such a laundry list of symptoms, it would be difficult to find an employee who was not suffering from one or more of these symptoms at the time of evaluation. This is especially so if the individual is aware of others making similar claims or has performed his or her own research on the topic. Many of the alleged symptoms are difficult if not impossible to objectively test or measure. Accordingly, one is often left with the subjective assertions of the patient as the sole measure of the severity of the "condition."

Causation is an essential element of any workers' compensation claim, regardless of how ill a particular employee may be. Causation must be proven with expert testimony. The generally accepted standards for determining the admissibility of expert testimony involves a judicial review of the following factors:

1. Whether the theory or technique in question has been or can be tested;
2. Whether the theory or technique has been subjected to peer review and publication;
3. The known or potential rate of error of the particular theory or technique, and whether means exist for controlling its operation;
4. The extent to which the theory or technique has been accepted.

As discussed above, although the general medical community has related some limited medical conditions to mold exposure, such conditions are far less in number and severity than those conditions that have been thought to be related. As a result, many courts have refused to admit into evidence "expert" medical opinion as to the connection between a litigant's medical conditions and his or her exposure to mold. However, some courts have deemed the above referenced admissibility standards to have been satisfied and, therefore, have allowed such testimony.

What is an employer to do if water leaks or resulting mold is discovered in the workplace? As stated above, take any such discovery seriously. Discounting an employee's concerns may only generate even greater concern as well as spread that concern to other employees. Make any necessary repairs as soon as possible to eliminate further water intrusion or other source of moisture into the workplace. If mold is discovered in the workplace, report the matter to your insurance agent and to LWCC (or worker's compensation insurer) even if the condition has yet to result in a claim. Early intervention is often key to the proper testing and evaluation of the problem. Such efforts may have the added benefit of quelling the fears of your workforce and thus lessening the chance of workers' compensation claims.

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