Toxic mold and workers compensation: an issue for your watch list
The Sebastian, FL police station recently dealt with 21 toxic mold claims from employees who allegedly became ill from mold at the station. Fifteen cases were dismissed or settled for small amounts; another six involved lump sum settlements.
Toxic mold is an issue to watch. It's a potentially explosive issue, and some in the industry liken it to asbestos or sick building syndrome because any exposure could involve large numbers of employees. And it is an issue that is attracting legal attention. The Ballard family of TX had a judgment of $32 million - later reduced to $4 million - for damages in a suit about illnesses from mold exposure in their home. Many think that with judgments of that magnitude, toxic mold claims will inevitably migrate to the occupational arena. And according to Mold Spreads, an article in CFO Magazine last September, this is already occurring:
"Some corporate risk managers are closely watching the federal suits filed against IBM Corp. in North Carolina, where several employees allege they experienced mold-related illnesses following an April 2000 flooding incident at the Research Triangle Park campus. Also under scrutiny is a class-action suit by two United Airlines employees alleging that mold constitutes a major health hazard in Concourse B at Denver International Airport."
And workers comp claims play a part in these suits:
"In addition to several workers'-comp complaints relating to IBM's Building Nos. 61 and 205 at Research Triangle Park, the company is confronting federal-court claims from senior financial analyst Julie Ord, now on disability leave, and program manager Linda Allen. The two claim that in the wake of flooding one weekend in April 2000 at the campus, they contracted toxic encephalitis, a swelling of internal organs, along with fatigue, memory loss, vertigo, and respiratory ailments."
This Tech Bulletin on Mold & Workers Comp presents and excellent overview of the workers comp issues. (pdf file)
"The proof issues for determining compensability in mold exposure claims are the same as the proof issues for claims alleging "sick building syndrome" and multiple chemical sensitivities. In cases where the compensability of claims alleging sick building syndrome or multiple chemical sensitivities have been denied, the courts have reasoned that since there is no specific diagnosis attributed to the sick building or chemical exposure there is no definitive cause and effect relationship. The employee’s symptoms are considered to be an ordinary disease of life.
Since there are conflicting reports from the medical community as to the relationship of the exposure to certain molds and health problems, the same cause and effect issues for occupational exposure versus ordinary disease of
life exist for workplace mold exposures. Other possible exposures to mold outside the workplace, such as in the home, are likely to be an issue in those cases."
In addition to testing basic issues of compensability, toxic mold will no doubt pose challenges to the exclusive remedy provision of workers comp. In an effort to secure richer remedies than those afforded by comp, plaintiff and class action attorneys are likely to pursue willful or intentional conduct suits.
Like many issues, the best defense is often a good offense so employers would do well to prevent or address any mold exposures before they pose a problem to the health of workers. Recommendations and resources are available from OSHA in its Brief Guide to Mold in the Workplace.
Centers for Disease Control - Mold
Insurance Information Institute - Mold and the Insurance Industry
Mold Insurance and Litigation
Fungus Among Us (N.C. Central University)
Mold Eating at Denver International Airport