By Cassandra Roberts, Young Conaway Stargatt & Taylor LLP

In the claimant-friendly jurisdiction of The First State where the standard of compensability is considered decidedly low by practitioners on both sides of the vee, claims for occupational disease stand alone in terms of their complexity, the unforgiving one-year statute of limitations that might sometimes eliminate an otherwise meritorious claim, and the fact that the threshold of causation is not the usual "slam-dunk" available for the injury cases. As such, employer-favorable outcomes issue from our Industrial Accident Board on an at least an occasional basis. This author might even suggest that these cases go to hearing with a greater regularity than the norm because of the potential that some legal machination will find favor with the Board sufficient to defeat a Petition to Determine Compensation Due – or perhaps there will just be a good old-fashioned failure of proof or delicious constellation of facts that serves the purposes of the defense.

• Harry Walker v. State of Delaware, IAB Hearing No. 1303216 (8/5/08) The claim was that Harry Walker developed invasive curvularia fungal pneumonia as a result of his work at the Charter School for the State of Delaware. Called to testify was a board-certified infectious disease specialist, Dr. Stephanie Lee, who commented that while a lung biopsy was not performed, a mucus plug removed from the claimant's lung contained curvularia, a very rare mold. Shortly thereafter, claimant's symptoms required that a thoracic surgeon remove a rib and the upper left lobe of the claimant's lung, yielding a pathology report indicating the presence of an invasive mold species consistent with curvularia. Dr. Lee testified that Walker demonstrated curvularia fungal pneumonia, a diagnosis so rare that there are only a dozen reported cases in the medical literature. The basis of exposure was that this mold was found in a single room at the claimant's school. Also testifying on claimant's behalf was Dr. Stephen Rodgers, board-certified in preventive medicine, environmental and occupational medicine. He concluded that Harry Walker suffered from both reactive airways disease and curvularia fungal infection as a result of workplace exposures. Dr. Frederick Cogen, board-certified in allergy and immunology testified for the State. He did not endorse a diagnosis of invasive fungal pneumonia but instead believed that the claimant suffered from allergic bronchial pulmonary curvularia which is an allergic reaction to mold, and that such illness was not related to a workplace exposure.

Flaws in Walker's case were the fact that this "rare" mold was found normally in the outdoors and its presence in the school was in one colony present in one environmental testing. The room in which this colony was discovered was not a primary site for any of the claimant's employment activity noting that he was a physical education teacher and coach who worked primarily outdoors and in the gymnasium. His claim of exposure by personal history related to his office, which was reportedly very damp and musty. However all of the expert witnesses agreed that the type of mold that produced claimant's lung damage (whether it be invasive curvularia fungal pneumonia or allergic bronchial pulmonary curvularia) was a ubiquitous mold found outdoors and not one associated with indoor water damage or excess moisture. Under these circumstances, the Petition was denied.

• William Rhodes v. State of Delaware, IAB Hearing No. 1309294 (3/25/09) The widow of William Rhodes sought to recover benefits related to lung cancer allegedly contracted as a result of asbestos exposure during Rhodes' employment at the Port of Wilmington where he was reportedly exposed to friable asbestos from 1991 to 1998. Dr. Orn Eliasson testified on the claimant's behalf although he did not have a chance to examine him before he died in December 2006; Dr. Eliasson specializes in pulmonary medicine, internal medicine, occupational medicine and public health. Claimant became ill in October 2006 and died in December 2006. He smoked two packs of cigarettes per day for 40 years and according to Dr. Eliasson, his lung cancer was caused by his asbestos exposure in tandem with his smoking habit.

The State of Delaware offered the opinion of Dr. Albert Rizzo, board-certified pulmonologist, for the proposition that, based on a medical record review, none of the treating doctors or radiologists indicated that asbestos exposure was a contributing factor to the claimant's lung disease or cancer. There was no x-ray or CAT Scan evidence that Mr. Rhodes demonstrated bilateral interstitial fibrosis, pleural plaques or pleural thickening, the hallmarks of asbestos exposure. Dr. Eliasson was the sole expert who would commit to an x-ray interpretation of interstitial fibrosis, a conclusion with which Dr. Rizzo and the reporting radiologist did not agree. Dr. Rizzo did not dispute that Dr. Eliasson was the only physician involved in the case who was a certified B-reader.

Recognizing that the analysis came down to competing opinions as to causation, the Board was better persuaded by the testimony of the State's expert, Dr. Rizzo. Citing the fact the Dr. Eliasson's conclusion that the claimant had a significant exposure to friable asbestos was not well-substantiated, juxtaposed with the fact that Rhodes had co-morbidities of diabetes and HIV that would have explained interstitial fibrosis on lung x-ray (as opposed to asbestosis) even if one accepted the opinion of Dr Eliasson as to what the x-rays depicted, The Board concluded that the reasonable medical probability in this case favored a conclusion that cigarette smoking was the most likely culprit for claimant's lung cancer in denying the Petition.

• Sarah Goodchild v. University of Delaware, IAB Hearing No. 1307835 (6/12/09) This was one of the "sick building cases" brought against the University of Delaware in the last few years. Claimant Goodchild alleged that she developed reactive airways disease and toxic encephalopathy as a result of her work for UD at Sharp Lab. Supporting the claimant's petition was Dr. Grace Ziem, who specializes in occupational medicine and toxicology. Dr. Ziem hypothesized that claimant had been working with "NCR" paper which releases sensitizing agents and was also exposed to some level of sulphuric acid, hydrochloric acid and other irritants in the course of her job duties in the lab. Her symptoms were localized to the sinuses, upper and lower respiratory tracts, with some mild neurologic compromise as well.

Dr. Fredrick Cogen testified on behalf of the University as a board-certified allergist. With a practice focused on the treatment of asthma and chronic lung disease, he noted that the claimant had a history of childhood fainting spells and imbalance and coordination problems. She developed a pack per day smoking habit in her teens. He would diagnose her with chronic rhinitis, COPD and "Idiopathic Environmental Intolerance", none of which he would relate to employment. The claimant presented for her defense medical evaluation in his office smelling of nicotine.

The university also called a psychiatrist to testify, Dr. Neil Kaye, who commented on an evaluation where the claimant presented walking with a cane and wearing a face mask. She claimed cognitive impairment and memory loss, as well as intolerance to fumes and perfume. Her mental status examination with Dr. Kaye was normal as to the claimed impairments and her insight was fair and intelligence average; he diagnosed a somatoform disorder. Dr. Lanny Edelsohn, a neurologist, also testified for the University, explaining that the claimant's mini-mental status examination was "perfectly normal" with no evidence of toxic encephalopathy. He deemed the conclusions of Dr. Ziem in this regard to be "outrageous" and "junk science."

In denying benefits, the Board found insufficient evidence of exposure to any toxin, nor that if she had been so exposed, that the exposure was in sufficient dosage to cause an illness. The Board rejected the finding of Dr. Ziem as to a diagnosis of toxic encephalopathy in light of the testimony of the neurologist for the State, Dr. Edelsohn, and also agreed with the opinion of Dr. Kaye that claimant fit the classic definition of somatoform disorder. To the extent that the claimant has manifested chronic bronchitis and COPD-related illness, the Board accepted the opinion of Dr. Cogen that this was most medically probably related to her history of smoking.

• David Ebersole v. Evans Builders, IAB Hearing No. 1322310 (7/30/09) In this little gem of a case, the Board ruled that a diagnosis of microbacteria avium intercellulare (MAI) wass not causally related to poultry exposure. This claimant was a carpenter who did other forms of labor and construction work for his employer. Much of the work activity was focused in chicken processing plants and claimant testified that 60 to 80 percent of his work was performed in a poultry environment. Claimant last worked for this employer in November 2007 and the following month developed a heavy cough which led to a diagnosis of pneumonia and a suspicious chest x-ray. A quarantine for possible tuberculosis followed and at some juncture thereafter, a physician used the term "avium" and prescribed antibiotics.

The following year the claimant was still symptomatic and had surgery to remove a portion of his lung. In connection with a workers compensation claim for occupational disease, Ebersole called as his expert Dr. Peter Bandera, board-certified in physical medicine and rehabilitation and pain management. Dr. Bandera offered the opinion that the MAI was related to the work environment surrounded by poultry. He explained that MAI is extremely common in the bird population and that claimant would have been exposed to the MAI, which is not the avian flu, and further that MAI is environmentally related. Dr. Bandera conceded that none of the treating doctors for this illness specifically related the MAI to work.

Enter the defense medical expert, Dr. Albert Rizzo, a board-certified pulmonologist and someone who actually knew something about MAI. MAI, according to Dr. Rizzo, is a family of bacteria that resembles tuberculosis under a microscope. It differs from human tuberculosis in that it is not transmitted from human to human or from animal to human. MAI presents as the result of an individual having prior pulmonary problems, COPD, previous cavities in the lung, or some such circumstance. Dr. Rizzo explained that there is no relationship between the claimant's work in the poultry industry and the development of MAI, which is not more prevalent in agricultural areas than in the general population. Dr Rizzo, upon reviewing Ebersole's medical records, noted a history of lung collapse during his teenage years, and an abnormal lung x-ray with a fungus ball 20 years ago which prompted a lung resection. The claimant was a pack per day smoker even up until the hearing. This picture is one of lung compromise which could have accounted for the susceptibility to the MAI. The Board agreed, denying benefits, not only embracing the opinion of Dr. Rizzo but also questioning the role of a pain management specialist as an expert witness in this case. (What were they thinking?) Interesting example of a "doctor for hire" on the claimant side?

Check back in the coming months for a summary of cases on this topic that feature claimant victories. Now that's a pandemic!

A workers' comp law blog by Cassandra Roberts