Courts are looking for
“competent evidence” of a solid link between mold in the workplace and
injuries allegedly caused by spores.
A few years ago coverage for injuries allegedly caused by
mold attracted the attention of attorneys and the media.
The issue first arose in homeowner claims with much
speculation mold could become the next asbestos. Litigation and
insurance observers then wondered whether workers comp systems would see
an abundance of mold claims.
As a pair of recent cases show, courts are demanding
solid evidence of a link between mold and occupational disease or
illness, just as they do in other types of cases.
Last week, in Steve
R. Jones v. Steve Jones Auto Group and Universal Underwriters,
the North Carolina Appeals court affirmed a 2008 Industrial Commission
ruling that an auto dealership's general manager is entitled to benefits
because of exposure to workplace mold over a three-year period.
According to the appeals court decision, there seemed to
be no ambiguity that black mold found on the back of sheetrock and
chairs in the plaintiff's office led to excessive and uncontrolled
coughing, wheezing, a burning sensation in his nose and mouth,
headaches, dizziness, and a lack of energy.
Testing by a certified industrial hygienist failed to
find black mold just outside the plaintiff's office, but high levels of
it were present inside the office, court records show. A couple of
clinical professors of medicine at Duke University found a lack of
evidence the plaintiff suffered from cognitive defects before exposure
to the mold and they opined a relationship to his workplace.
Another physician, board certified in internal,
pulmonary, critical care, and sleep medicine, also found that the
plaintiff's exposure to workplace mold was “the factor” causing his lung
inflammation.
The appeals court concluded that all the evidence “is
competent” to support the “Commission's finding that the plaintiff's
work placed him at an increased risk for contracting pulmonary airway
disease.”
In contrast, a Special Workers' Compensation Appeals
Panel of the Supreme Court of Tennessee last year reversed a trial court
finding that a teacher was entitled to a 35% permanent partial
disability rating because of workplace mold tied to respiratory
allergies.
Court records in Deborah
R. Wagner v. Washington Department of Education show
the evidence in this claim was more conflicting than in the North
Carolina case.
Here, an allergist/immunologist doctor found that a skin
test showed the teacher suffered from allergies related house dust
mites, cat hair, dog dander and pollen while test results for mold
allergy were negative.
Another doctor, however, did diagnose the teacher to be
suffering from "occupational asthma” as well as mold allergy. But tests
found her home contained mold.
The evidence appeared to conflict.
The Tennessee appeals panel found that the teacher did
not produce “sufficient evidence” to prove her allergies followed from a
workplace exposure or that her problems did not originate outside the
workplace.
The court reversed the lower court and dismissed the
case.
Whether courts in other states will rule similarly
remains to be seen. But so far it appears that claimants filing
work-related mold cases will need solid evidence of a link between their
place of employment and their symptoms.