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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.