Today's case comes courtesy of Bob Richter of Elzufon, Austin, Tarlov & Mondell. It is an occupational disease/toxic exposure case which went to the Board last summer and for which the Motion for re-Argument was denied in late November. I have had my eye on this case, as I represented the claimant for a brief period, as did Liz Lewis. Thereafter, Rich Wilson took over the representation....apparently willing to go where no woman had gone before.
It's a lengthy decision and fact-intensive case, with multiple lay witness testimony, so permit me to hit the highlights.
The claimant was seeking benefits for sarcoidosis of the lungs, heart and brain as a result of claimed exposure to mold, brake dust and tire dust. He worked in this auto shop for 34 years and claimed that the shop was besieged by flooding after excess rain and resulting mold issues. Dr. Howard Kipen, board-certified in internal medicine and occupational medicine, testified for the claimant. While sarcoidosis of the lung is somewhat common, sarcoid of the heart is rare and of the brain rarer yet. Dr. Kipen related (well, sort of-more about that later) the sarcoidosis to mold exposure at work. There is fertile discussion in his testimony to three medical/scientific studies that would establish a "significant association" between people having sarcoidosis and mold exposure.
Dr. Gerald O'Brien, board certified in internal medicine and pulmonary disease, also testified on behalf of the claimant. He acknowledged that while the etiology of sarcoidosis is unknown, he believes there is an environmental component to the disease and that such component is at work in Mr. Burns' case, in tandem with a genetic predisposition. Dr. Lisa Leschak-Gelman, a neurologist, also testified in favor of causation, and further that claimant is disabled physically and cognitively.
Dr. John Cohn, board certified in internal medicine, allergy, immunology and pulmonary medicine testified for the employer. He would not take issue with the diagnosis, but would not allow causation attributable to the work environment, given that (1) there is no medical proof that mold exposure causes sarcoidosis, (2) there is no evidence of the specific exposure at work, and (3) the exposure in question is not limited to the workplace. His opinion found concurrence in the testimony of Dr. W. Edward Montz, Jr., a certified industrial hygienist and expert in industrial hygiene.
The Board denied benefits, adopting the opinion of Dr. Cohn that sarcoidosis is a disease of controversial etiology. Of note, while Dr. Kipen cited three studies for the proposition that sarcoid patients have a higher incidence of mold exposure, "he was careful to stop shy of concluding that mold exposure causes sarcoidosis." There was the fact that while claimant alleged chemical exposure, which influenced Dr. Leschak-Gelman, those specific chemicals were not identified. Moreover, "Claimant's experts admittedly relied on Claimant's representation of having exposure at his workplace without having exposure anywhere else." Also compelling was the fact that when the ownership of the business changed hands, the building and property had to pass an inspection in order for the buyer's loan to be approved.
Who had the last word?
After the issuance of the merits decision the Claimant retained Joe Klusman as his attorney and filed a Motion for Re-argument. (yes, that Joe Klusman). Joe, making a persuasive cameo as a claimant's attorney, sought to present the additional testimony of Dr. William Sommers (himself making a rare cameo on behalf of an injured worker). Turns out there was a DME with Dr. Sommers that yielded an opinion on causation favorable to claimant-understandably, Dr. Sommers was not called by the defense and inexplicably was not called by the Claimant. Motion denied as this was not newly discovered evidence. And another "sucks for you" moment as my Sweet Caroline likes to say.
So there you have it. A whole lot of drama and almost makes me wish I stayed in the case just to liven things up a little. Offered for you reading pleasure George Burns v. Kirkwood Tire, Inc. and Edgewater Tire Center, Inc., IAB # 1376503 and 1351892 (8/22/12) and George Burns v. Kirkwood Tire, Inc. and Edgewater Tire Center, Inc., IAB # 1376503 and 1351892 (ORDER) (11/30/12). Props to the defense dream team of Bob Richter and John Morgan for the employer and successor-employer.
You know, it just hit me.....for an employer who introduced countless testimony about the lack of a water/mold problem, the new owner named this business "Edgewater" Tire. It's not near a lake, folks. Am the only one that finds that just a little.....well, ironic?
Irreverently yours,Sassy Cassy(aka Cassandra Roberts)
Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts
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