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Sick Building Claims Challenge Exclusive Remedy Doctrine


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).

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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 building" claim.

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).

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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.

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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.

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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. 1999).

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.

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