Just a Few Too Many Kodak Moments in This DE Occupational Disease Case

Just a Few Too Many Kodak Moments in This DE Occupational Disease Case

I am really on a roll when it comes to occupational disease.  No, I am not talking about my (unimpeachable) track record at the IAB; I am talking about a flurry of posts on exposure here in the First State.  Today's case is so special, so multi-faceted, so very compelling that whoops, I did it again! -gonna write about one on my own that arrived in today's mail.

Ann Marie Rybka v. Burris Logistics, IAB #1386840 (3/7/13) is a 53-page ruling from the Industrial Accident Board denying benefits for an alleged occupational exposure to-well, sometimes the claim was to mold, at other times it was to bleach. And that's only the beginning of where this gets interesting.

The Factual Background:

Ms. Rybka started employment with Burris in late March, 2012 as a transportation manager.  Co-workers and management testified that pretty much from the inception of her tenure at Burris, she complained about certain mold, or possibly mildew, that stained portions of the office walls where water had leaked in and became trapped between the drywall and wallpaper.  She liked to warn anyone in earshot that "someone was gonna get sick"......(and what a coincidence)-that someone was her.

Burris initially made an informal effort to scrub the walls with bleach in July 2012.  That effort was not only unsuccessful, it created a noxious odor such that the clean-up effort was aborted in short order.  Nonetheless, and either taking Ms. Rybka's complaint seriously or possibly with the motivation to shut down the constant complaints she voiced to anyone within earshot, Burris undertook to more aggressively resolve the problem during the weekend of August 4th,  2012. Specifically, Burris hired a contractor to come in and remove all the wallpaper and scrub the bare walls with bleach and then  re-paint the office suite that was impacted by this water leakage.

The Work Event in question:

Ms. Rybka's DCD Petition identified a date of injury of Sunday, August 5th, by way of a specific event.  She claimed that she was compelled to come into work very early that Sunday and upon entering the premises, found the office area full of debris and otherwise in disarray.  That circumstance was not disputed as Sunday at 7:00 a.m. would have been after the first day of mold abatement and prior to the commencement of mold abatement the second day.  Meaning she arrived in the middle of the project.

The "toxic exposure" occurred in the form of a "plume" of black dust that escaped a giant Hefty bag which the Claimant insisted was left at her work station overnight during this process. In removing the trash bag from her desk, she claims to have been overtaken by black mold creating physical symptoms very much akin to a stroke.  She immediately called her boyfriend and he advised that she was slurring her words and not making sense.

In addition to this specific "accident/event", there were references in both the testimony and medical records to a more pervasive ongoing exposure such that a cumulative detrimental effect might come to mind.  This was not, however, pled as a CDE case in the alternative-and it would not have mattered in any event.

The Claimant was seeking ongoing total disability from August 5, 2012 forward and related medical treatment expenses.  The claim was that this exposure left her with reactive airways disease (RADS), cognitive impairment, and anxiety/depression.

So what was the gist of the defense?

·   Dr. Michael Greenberg, a medical toxicologist, disavowed the diagnosis of RADS.

·   Dr. Greenberg also testified that the medical residuals being claimed were not consistent with mold exposure.

·   The Claimant's allegation that she came in to work on August 5th and was "surprised" by the toxic condition of the office was impugned by several co-workers who testified that Claimant was present at a managers' meeting on August 2nd at which time the team was advised of the upcoming mold abatement and warned to stay away from that particular office suite.

·   Notwithstanding her history that she was "overcome" upon being exposed to this emission of mold from a Hefty bag and experienced stroke-like symptoms, the Claimant drove herself to the hospital.

·   When questioned by Board members as to why her boyfriend did not insist on coming to take her to the hospital, the Claimant replied that "he was on the golf course".

·   Before she left for the hospital while experiencing this "stroke",  the claimant took fifty-one pictures of the workplace on her cell phone,  depicting, as one might expect, the mess associated with the mold abatement (and yes, I said "fifty -one").

·   Of the fifty-one photographs that existed to purportedly validate the exposure, not one of the pictures was of her work station or of the black trash bag that supposedly contained the toxins.

·   Notwithstanding the Claimant's insistence that she was exposed to black mold and other potential toxins in this trash bag, she saved the trash bag,  and took it with her-in her personal vehicle- to the hospital and still reportedly has it in her garage.

·   Had the Claimant not gone out of work due to this alleged exposure on August 5th, she was scheduled the following day for a negative review that would lead to a "performance improvement plan"-often the precursor to termination of employment.

In additional to the curiosities described above, the medical evidence was less than stellar. No pulmonologist testified as to the RADS claim, no neuropsychiatrist testified to the alleged cognitive difficulties, and no psychologist testified as to the anxiety and depression--the latter of which the Board ruled were pre-existing.  With the exception of one methacholine challenge test, all of the diagnostic studies were negative, as were the various clinical examinations documented by Dr. Townsend (deposed on behalf of the Claimant), Dr. Chabalko, Dr. Dvorin, Dr. Dubey , Dr. Buck and Dr. Greenberg.

What are the take-aways?

·   The diagnostic criteria for RADS succinctly outlined in a footnote

·   A summary of the 9-pronged analysis, known as "the Hill Criteria", utilized for years to test causation in the field of occupational and medical toxicology

·   Legal analysis of this claim under the Anderson v. General Motors standard for proving an occupational disease (it fails)

·   Legal analysis of this claim under the Reese "but for" standard that would apply to a specific industrial accident (it fails again)

·   Really cool footnotes with further annotations of case law (and we all know how much I just love case law)

If occupational disease claims are not already well within your wheelhouse, this decision could be marketed under the title "Occupational Disease for Dummies." And just think-you can download it for free from my blog.  How cool is that?

Irreverently yours,
Cassandra Roberts

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