By Rona S. Finkelstein, Esq., and
James Haynes, Esq., Injured Workers' Insurance Fund, Maryland
The relatively new developments in workers' compensation law regarding
"sick building syndrome" present some novel questions
but also involve some old, familiar problems. The most exotic elements
in the sick building phenomenon are the new health complaints and
the new alleged causes for those complaints. The underlying reality
is that workers' compensation laws have recognized chemical exposure
in the workplace as an accidental injury or occupational disease
for decades. This article addresses the general contours of "sick
building" claims and then explores some of the challenges in
defending these claims.
The reality of workplace exposure to toxic, or irritating, substances
is not new to workers' compensation. Over 75 years ago, Maryland
recognized that phosphorous poisoning, "[t]hrough the inhalation
of dangerous and noxious fumes and gases," could be a compensable
accident. Victory Sparkler & Specialty Co. v. Francks,
147 Md. 368, 128 A. 635 (1925). This case held that the employee
was entitled to benefits and that the employer, though negligent,
was protected from common law liability. Exposure to chrome, sulfur,
and coal also formed the basis of many claims. See, e.g., Pero
v. Collier-Latimer, 49 Wyo. 131, 52 P.2d 690 (l935) (silicosis);
Mutual Chem. Co. v. Thurston, 222 Md. 86, 158 A.2d 899 (l960)
(chrome); Bybee v. Idaho Equity Exchange, 57 Idaho 396, 65
P.2d 730 (l937) (sulfur dust).
Today, "sick building" cases are premised upon different
concerns. In a study quoted in 1996, the Lawrence Berkeley National
Lab estimated that indoor air pollution causes 10,000 premature
deaths and 150,000 to 300,000 lower respiratory tract infections
each year. The lab also identified indoor air as a contributing
factor to the development of asthma and to the spread of tuberculosis,
influenza, and common colds. Occupational Health & Safety
Letter (Business Publishers), Aug. 5, 1996, Vol. 26, No. 13.
In 1976 the first recorded outbreak of Legionnaire's disease affected
hundreds and caused about 20 deaths. Scientific and engineering
studies have also purportedly linked modern construction techniques
and materials to health problems for employees who work in enclosed
structures. For example, 30 employees of a California publishing
business were adversely affected by toxins given off by molds that
grew in the carpet following a broken pipe in their office space.
(Toxic Mold in an Office Setting, Masera; Occupational Health
and Safety, Vol. 69, Issue 8, August 1, 2000).
The law of "sick building" has evolved as the workplace
has evolved. While the workplace has become less dangerous, the
questions and issues presented in workers' compensation litigation
are more complex where chemical exposure is alleged in a "sick
Consider the exclusivity of remedy doctrine. Because the "sick
building" phenomenon is relatively recent, employees alleging
workers' compensation injuries are testing the waters in an effort
to circumvent the doctrine. One method is the allegation that the
employer's behavior amounted to willful or intentional conduct.
An Ohio case exemplifies this. A school librarian with documented
chemical allergies made her employer aware of her condition. Her
employer ignored her warning and her request that certain work not
be performed in her work area. Within days, the employee developed
respiratory difficulties. The school board responded to these complaints
by installing, over the librarian's objection, a fan in the library
that was insulated with a sealant containing a substance to which
the librarian had previously shown sensitivity. The next day, the
librarian had a severe reaction. In the subsequent lawsuit by the
librarian, the lower court awarded summary judgment for the school
board. The reviewing court held that, viewing the evidence in a
light most favorable to the employee, the summary judgment was incorrect,
finding that the facts in the record of the case demonstrated actions
by the employer, which might, under Ohio law, rise to the level
of intentional tort. The case was remanded for trial. Peaspanen
v. Board of Education of Ashtabula Area City School District,
107 Ohio App.3d 622, 669 N.E.2d 284 (1995).
A 1997 Massachusetts "sick building" case exemplifies
another attempt to circumvent the exclusivity of remedy doctrine.
A group of employees sued their employer for damages for alleged
physical, mental, and emotional injuries that they asserted arose
from poor ventilation and indoor air quality. The employees alleged
physical symptoms including multiple chemical sensitivity (MCS).
The employer moved to dismiss under the exclusive remedy provisions
of the workers' compensation law. To avoid the "election of
remedies" problem, the employees alleged that their MCS was
not a "personal injury" under the state's workers' compensation
act. The Massachusetts court took a broader view of the law and
held that all the alleged damages were barred under the exclusive
remedy doctrine. Niles-Robinson v. Brigham and Women's Hospital,
Inc., 1997 WL 11735 (Mass. Super.).
Causation issues also are complex in the context of "sick
building" claims. In Maryland, the longstanding law in occupational
disease claims has been that if the occupation merely aggravated
a pre-existing condition, the claim will be disallowed. Blake
v. Bethlehem Steel Co., 225 Md. 196, 170 A.2d 204 (1961). However,
if the claimant's condition was due to conditions in the workplace
and the claimant would have suffered from the same condition notwithstanding
the pre-existing condition, the claim will be compensable. Allied-Signal,
Inc. v. Bobbitt, 96 Md.App. 157, 623 A.2d 1311 (1993), rev'd
on other grounds, 334 Md. 347, 639 A.2d 142 (l994). In "sick
building" cases in which the claimant has pre-existing respiratory
problems, it is often difficult for medical experts to state, within
a reasonable degree of medical certainty, whether the claimed work-related
respiratory condition was a mere aggravation or a stand-alone condition.
In such cases, the defense of the claim will often turn on the length
of time that the claimant was exposed to the workplace conditions.
In "sick building" claims employees have also attempted
to persuade the courts to alter the rules of evidence below. In
Wisconsin an employee quoted Larson's Workers' Compensation Law
as authority in her argument that the reports of treating doctors
should be given special credibility in workers' compensation proceedings.
The employee's treating doctor diagnosed her with "multichemical
sensitivity" caused by her employment. The reviewing court
held that the Wisconsin legislature had intended to give the Labor
& Industry Review Commission sole authority to judge the weight
and credibility of all medical witnesses. An effort to confer special
status on the opinions of treating physicians represented an improper
curtailment of the Commission's authority. Conradt v. Mt. Carmel
School, 197 Wis. 2d 60, 539 N.W.2d 713 (1995).
Careful consideration must also be given to whether the evidence
offered by the claimant in "sick building" claims meets
the standard set for scientific evidence in that jurisdiction. The
federal courts evaluate scientific evidence under the standard of
Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993). Maryland, the District of Columbia and other jurisdictions
follow the standard in Frye v. United States, 293 F. 1013
(1923). Because "sick building" claims frequently involve
soft medical diagnosis such as MCS, fibromyalgia, chronic fatigue,
or intermittent symptoms such as headaches, it is important to carefully
evaluate the evidence offered in support of the claim against the
scientific evidence standard of the particular jurisdiction.
In cases involving alleged workplace exposure to indoor toxins,
the litigation may find its way to federal court. This occurred
in North Carolina where allegations by former employees that their
employer's conduct amounted to an intentional tort allowed them
to pursue an action for damages in addition to workers' compensation.
The employees alleged that their employer, in 1986, knowingly constructed
a building in Florida over a toxic waste dumpsite and near a contaminated
lake. They alleged various health problems as a result of working
there. The court held that a conflict of law existed and that the
substantive law of Florida, rather than North Carolina, applied.
While the outcome under North Carolina law might have been different,
the court held that the exclusive remedy provision of Florida's
law was clear and protected the employer from further liability.
Anderson v. Piedmont Aviation, Inc., 68 F.Supp.2d 682 (M.D.N.C.
In conclusion, the workers' compensation law provides a sound legal
and procedural structure for adjudicating "sick building"
claims. There is a long history of recognized chemical exposure
cases, which are similar, in many respects, to the more recent development
of "sick building." Claims of injury or occupational disease
based on poor indoor air quality are unlikely to go away. On the
contrary, there is every reason to expect them to increase in number
and complexity. If this occurs, workers' compensation counsel should
expect to face efforts to erode the exclusive remedy protection
now enjoyed by employers. In addition, counsel for the employer
and insurer are likely to face continued efforts to shift evidentiary
burdens in workers' compensation claims. The defense bar will also
see more federal court claims involving multi-state jurisdiction.
These and other challenges inherent in "sick building"
claims will be with us for the foreseeable future. As we continue
to address these challenges, the contours of "sick building
claims" will likely become better defined.