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IN THE WORKERS' COMPENSATION COURT OF THE STATE OF MONTANA

2004 MTWCC 53

WCC No. 2003-0759


ANASTASIA VERCOS

Petitioner

vs.

WORKERS' COMPENSATION RISK RETENTION PROGRAM

Respondent.


FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

Summary: The claimant, who has a history of allergic rhinitis and sinusitis alleges that her conditions were aggravated by exposure to mold while teaching at the Browning, Montana Middle School during the 2001-2002 school year.

Held: The claimant failed to show that molds in her classroom were present in any higher concentrations normally occurring outdoors or in her home or that the flare-up of her sinusitis in 2001 and 2002 was due to molds at the school.

Topics:

Proof: Causation. To prevail in an occupational disease claim based on exposure to mold, the claimant must show that mold, which is ubiquitous, was present in the workplace at higher levels than other places the claimant frequents.

Proof: Causation. To prevail in an occupational disease claim based on exposure to mold, the clamant must prove that her medical condition was in fact caused or aggravated by her exposure to mold in the workplace. Belief and speculation as to causation are not sufficient.

Proof: Conflicting Evidence: Medical. The sole medical opinion linking claimant's medical condition to her condition to her workplace is unpersuasive in light of persuasive, contrary opinions of a physician who conducted an independent occupational disease evaluation at the request of the Department of Labor and Industry and allergist who is a professor of medicine, has published numerous articles and textbook chapters on allergy, has been recognized by his peers with various awards, has served as an editor and reviewer for professional publications on allergy, and who is recognized by his peers as a leading authority in allergy, and where that opinion is further undermined by the refusal of the physician who treated the claimant at the time of her employment to link her disease to her employment.

Occupational Disease: Causation. To prevail on an occupational disease claim based on exposure to mold, the claimant must show that mold, which is ubiquitous, was present in the workplace at higher levels than other places the claimant frequents.

Occupational Disease: Causation. To prevail on an occupational disease claim based on exposure to mold, the clamant must prove that her medical condition was in fact caused or aggravated by her exposure to mold in the workplace. Belief and speculation as to causation are not sufficient.

1 The trial in this matter was held in Kalispell, Montana, on January 6, 2004. The petitioner was present and represented by Ms. Laurie Wallace. Respondent was represented by Mr. Leo S. Ward. Due to time constraints, cross-examination and redirect of Mark Hlebichuk was resumed and completed on February 2, 2004, with the Court participating (with the parties' agreement) by telephone. The matter was then deemed submitted for decision.

2 Exhibits: Exhibits1 through 29 and 31 through 33 were admitted without objection. The Court reserved ruling on Exhibit 30, which is an air quality report at the College of St. Catherine, which previously employed the petitioner. Respondent objected to the exhibit on the ground it was untimely exchanged and on foundation and hearsay grounds. The petitioner did not provide foundation evidence but offered the exhibit as an impeachment exhibit. The report concerns mold levels at the College of St. Catherine. Respondent did not offer any evidence concerning mold or the lack thereof at St. Catherine, therefore, the exhibit does not qualify as an impeachment exhibit. Moreover, the fact that it is offered as impeachment evidence does not nullify the requirement for foundation. The exhibit is refused.

3 Witnesses and Depositions: Petitioner, Maria Zoria Yates, Edith Wagner, Christine Moore, and Mark Hlebichuk testified in person. By agreement of the parties, Dr. Emil J. Bardana testified by telephone; he was scheduled to appear in person but bad weather prevented him from leaving Portland, Oregon, where he resides and practices medicine. In addition to the foregoing testimony, the parties submitted the depositions of Maria Zoria Yates, Edith H. Wagner, Rosita Crawford, Mike Hannon, and Wayne Sinclair (two depositions) to the Court for its consideration.

4 Issues Presented: The issues, as set forth in the Pretrial Order, are as follows:

4a Whether Petitioner suffered an occupational disease arising out of and in the course of her employment with the Browning School District.

4b Whether Petitioner is entitled to temporary total disability benefits and reasonable medical expenses related to the treatment of the occupational disease.

4c Whether Petitioner is entitled to an increase in award for unreasonable delay or refusal to pay proper workers' compensation benefits pursuant to 39-71-2907, MCA.

4d Whether Petitioner is entitled to costs and attorney's fees pursuant to 39-71-611 and/or 612, MCA.

(Pretrial Order at 3.)

5 Having considered the Pretrial Order, the testimony presented at trial, the demeanor and credibility of the witnesses, the depositions and exhibits, and the arguments of the parties, the Court makes the following:

FINDINGS OF FACT

6 This case involves a claim by Anastasia Vercos (claimant) that she suffers from an occupational disease as a result of her exposure to mold while employed by the Browning School District. Mold is a fungus and fungus reproduces through spores.

7 The claimant is a certified teacher for grades seven through twelve. She began teaching in the Browning Middle School in Browning, Montana, in the fall of 2001 and taught at the school until taken off work on May 2, 2002.

8 The claimant has a history of allergic rhinitis, which is inflammation and swelling of the nose and sinuses.(1) (See Sinclair Dep. at 16-17.) At least until the year 2000, her rhinitis was seasonal, commencing in the spring and ending in the autumn. (Ex. 12 at 11.) She treated it symptomatically with an antihistamine (Allegra). (Id.)

9 According to a medical history taken by an allergist on May 17, 2000, as of that time the claimant also had a history of one or two sinus infections annually, however, she had no history of nasal polyps or sinus surgery. (Ex. 6 at 1.)

10 In November 1999, the claimant went to work for the College of St. Catherine (St. Catherine) as a receptionist. St. Catherine is located in St. Paul, Minnesota. Her workplace was in an old building with old carpeting which was periodically wet due to a leak in the building foundation. (Trial Test. and Ex. 12 at 36.)

11 In the winter and early spring of 2000, the claimant developed chronic frontal headaches and sinusitis. (See Exs. 6, 12, and 31.) Sinusitis is inflammation of the nasal sinuses.

12 The clamant was evaluated by Dr. Dennis R. Brady, an otolaryngologist, in May 2000. (Ex. 6 at 1-4.) She underwent a CT scan of her sinuses on May 17, 2000. (Id. at 3.) The CT scan revealed significant sinus pathology and on July 5, 2000, claimant underwent bilateral sinus surgery. (Id. at 6.) During surgery, polyps were discovered and excised.(2)

13 Following her surgery, the claimant continued to have sinus congestion and drainage. (Ex. 6 at 10-11.) She reported that she worked in a "moldy building." (Id. at 11.) On August 2, 2000, Dr. Brady recommended that she move out of her office at St. Catherine's. (Id.) He also referred her to an allergist. (Id.)

14 The claimant underwent allergy testing on August 8, 2000. (Ex. 12 at 29-33.) She tested positive for a variety of allergens, including dogs and cats, grasses, dust mites, ragweed, and a number of molds and fungi. (Id.) At the time of her testing she had two dogs at home but stated she did not note any symptoms which she could attribute to the dogs. (Id. at 32.)

15 The claimant's medical records and testimony show that she worked very little at St. Catherine's after August 2nd but nonetheless continued to experience significant sinus problems. (Ex. 6 at 13, 15.) On October 5, 2000, she underwent a repeat CT scan of the sinuses, which disclosed swelling and occlusion of the sinuses. (Id. at 14-15.) Dr. Brady recommended additional sinus surgery, which he performed on November 2, 2000.(3) (Id. at 17-19.)

16 The pathology report on sinus tissue excised during the November 2, 2000 surgery indicated that the tissue examination was "suggestive of chronic allergic sinusitis." (Id. at 20.) This report, along with other medical reports and opinions in evidence, compels a conclusion that the claimant's chronic sinusitis, then and now, is due to allergies. The question I must answer in this case is whether her sinusitis was aggravated by an allergic reaction to molds to which she was thereafter exposed while working at the Browning Middle School.

17 The claimant certainly believed that she was exposed to mold at St. Catherine's and filed a workers' compensation claim on account of her sinusitis and sinus surgeries. However, the claim was compromised (Ex. 27) and workplace pictures which she believed showed mold were inadequate for her allergist to support her claim that there was mold at her workplace. (Ex. 12 at 31.) Also, no studies were admitted into evidence concerning the existence, types, and levels of mold at St. Catherine's.

18 The claimant moved to Montana in August of 2001, and began teaching at the Browning Middle School in the fall of 2001.

19 The Browning Middle School consists of three octagonal classroom pods attached to a central, core pod, which for convenience will be called the "Central Pod." (Ex. 28.) One of the pods, housing rooms 104 through 112 (hereinafter "Pod 1"), as well as the Central Pod, had second stories. The other pods were single-story. The claimant's classroom - 124 - was in a single story pod which housed classrooms 118 through 124. It will be called Pod 2 for convenience. Access to the other exterior pods, including to Pod 1, required transit through the Central Pod. (See Ex. 28.)

20 The classrooms in the exterior pods, including the claimant's classrooms, have exterior doors opening directly outside as well as doors opening into the common area of the pod. The claimant testified that during rain and snow storms, moisture would come into her classroom under the door. She also testified that some ceiling tiles were water stained and that the walls of her classroom were concrete block and split in places. Finally, she testified that her classroom was carpeted and became wet during wet weather.

21 The inference the claimant wishes the Court to draw from the above testimony is that there was mold in her classroom. Mold thrives in moist places, however, her testimony did not establish the presence of any visible mold in her classroom; it did not establish how often and how much moisture got into her classroom; and it did not establish what molds were present in her classroom or the levels of the molds. Dr. Emil J. Bardana, whose testimony I discuss later on, testified convincingly that mold is ubiquitous, i.e., it is everywhere, thus I do not doubt that there was mold in her classroom. The question I must answer is whether mold was present in any greater amount or degree in the claimant's classroom than outside or in other indoor places she frequented and whether the molds present were ones to which she was allergic. Before addressing those questions, I turn back to her medical history.

22 The claimant testified that in October 2001, she began experiencing headaches, dizziness, and fatigue, along with green mucous from her sinuses and a feeling of sinus pressure. In December 2001, she was diagnosed with sinus infection. (Ex. 9 at 1-4.) On December 22, 2001, she was seen at the emergency room of the Northern Rockies Medical Center in Cut Bank, Montana, for sinus infection and reported "that she was exposed to mold recently while visiting someone at their home on Wednesday; had a severe reaction with her ears draining bilaterally."(4) (Id. at 4, emphasis added.)

23 Thereafter, the claimant continued to have sinusitis and sinus infections.

24 On February 12, 2002, she reported that she had an "acute sinus reaction while at work at the Browning school system. The pt. [patient] stated that her throat almost closed off at this event. She has determined that it's probably a mold that she is allergic to that has caused the reaction." (Id. at 5.)

25 On March 1, 2002, she saw Dr. Karl M. Oehrtman, an otolaryngologist in Kalispell, Montana. Her complaints at that time included dizziness, pressure in her head, ear popping, and other symptoms. (Ex. 1 at 1.) Dr. Oehrtman felt she had rhinitis and sinusitis due to allergies; he recommended further allergy testing and allergy shots. (Id.) The claimant was resistive to allergy shots, citing the distance she would have to travel and her adverse reactions to drugs. (Id. at 1, 3.) The shots would have been given in Cutbank, which is about twenty-two miles from Browning.

26 The claimant continued to have sinus problems and returned to Dr. Oehrtman on May 10, 2002. (Id. at 3.) A CT scan was obtained at that time and showed sinus infection. (Id.) In late May 2002, Dr. Oehrtman carried out sinus surgery, the third one for the claimant. (Id. and Ex. 31 at 14.)

27 The claimant did not return to work after May 2, 2002. On May 24, 2002, she filed a workers' compensation claim stating that she had "been ill with sinus infections since Sept. 01" due to "mold and other environmental" factors at the school. (Ex. 16 at 1.) I note here that her claim does not square with the history she provided in December 2001 concerning the onset of a sinus infection due to exposure to mold at a friend's house and the failure at that time to attribute any infections to her work at the middle school.

28 The Browning Schools are insured by the Workers' Compensation Risk Retention Program. The claim was submitted to it and denied.

29 One of the issues in this case is the claimant's exposure to molds at the Browning Middle School. The claimant has presented anecdotal evidence of others who have complained about the air quality at the school and at least one teacher who believes that she suffered a reaction to molds. Lacking, however, is medical evidence showing that they indeed suffered medical conditions caused by mold. One teacher - Christine Moore - had taken a year off from teaching in 2001-2002 to deal with personal issues and quit work precipitously in December 2002 because she felt the school was affecting her health. There was no medical evidence to support her assertion that the school environment adversely affected her health, and her prior year off and precipitous departure in 2002 raises questions concerning the value of her beliefs about the school environment. Maria Zoria Yates (Yates), the school nurse, testified that the school had all the odors typically associated with a building full of people and that she was unaware of any unusual medical complaints. (Yates Dep. at 7.) At trial, she noted that middle school children tend to be ill more than other students and that few of the middle school's staff complained about illnesses. In summary, while the evidence of other complaints may raise suspicion about school air and mold, it does no more than that.

30 Mold thrives in wet or moist environments. (Trial Test. of Dr. Bardana.) Testimony concerning moisture in the Browning Middle School showed that students tracked in moisture on stormy days; some moisture leaked under classroom doors which opened to the outside if the door seals were missing or defective; a twenty minute leak of glycol and water from the heating system pipes occurred in a central pod in 2000 or 2002 (Hannon Dep. at 37-38); some minor spotting of ceiling tiles occurred periodically at the junction of piping and HVAC-VAB units when the system is shut down and the water-glycol mixture used in the system cooled down (id. at 38); and major water damage occurred in room 109 in Pod 1 from a lavatory above it in January 2001. (Wagner Dep. at 3-13 and Hannon Dep.) The roof of the school was replaced in 1996 (Hannon Dep. at 37) and there is no credible evidence that the roof leaked thereafter. Indeed, school nurse Yates testified that after the roof was replaced she observed no leaks or any visible mold or mildew. (Yates Dep. at 5.)

31 The Court does have four air studies of the school, three of which specifically measured mold levels.

32 The first study was done in May 2000, as a result of complaints by the parent of a student who had complained of respiratory problems. (Hannon Dep. at 4.) The study was done by an outside contractor - Facility Improvement Corporation (FICO). The study found that there was insufficient outdoor air being drawn into the school. While no testing of mold levels was done, the study found, significantly, "[n]o obvious indoor contamination sources" and "no obvious sources of microbiological growth or moisture." (Id. at 2.) The insufficiency in outdoor air was thereafter determined to be due to closed fire dampers in the ventilation system and was corrected. (Id. at 20.)

33 The second study was done on April 11, 2002, by Maxim Technologies, Incorporated. The results of that study are found at Exhibit 20. The primary reason for the study was the flooding of classroom 109, which has previously been noted. At the time of the study, school was in session and some of the classrooms were sampled with students present. (Ex. 20 at 4.) There is no indication of any special measures taken prior to the sampling.

34 The sampling focused on the two water-damaged rooms - 109 and 110 - in Pod 1, however, room 124 in Pod 2 - the claimant's classroom - was also sampled. The classroom samples were compared with air samples from outside the school and showed that overall mold concentrations inside the school were less than outside concentrations. (Id.) The sampling also showed stachybotrys mold, which is associated with flooding, present in room 109 but in no other rooms. (Id. at 5.) In light of water-stained sheetrock in room 109, the sheetrock was to be removed to investigate mold growth behind the sheetrock. (Id. at 3, 6.)

35 The first sample from room 124, taken with students present, showed a total concentration of 82 colony-forming units per cubic meter of air. (Id. at 12.) Three-sevenths of the total count was Cladosporium. The other four-sevenths consisted of one-seventh each of Rhodotorula (yeast), Scopulariopsis, an undifferentiated yeast, and an unidentified fungus. The second sample, taken when the room was empty showed only twenty-four colony-forming units, of which half were Penicillium and half Cladosporium. (Id. at 13.)

36 The total counts in room 124 were far less than the counts immediately outside the school. With respect to total counts, the comparison in terms of colony-forming units per cubic meter of air were as follows:

Room 124 Outside East Doors Outside Front entrance
Sample 1 82 483
Sample 2 24 730

( Id. at 12-13.) Thus, overall outside levels were six times greater than the level of room 124 in the first sampling and more than thirty times greater in the second sampling.

37 The first outside sample was 22/41 parts Rhodotorula (yeast), 8/41parts Cladosporium, 8/41 parts undifferentiated yeast, and 3/41 parts Mycelia Sterilia. The second outside sample was 28/62 parts Rhodotorula (yeast), 19/62 parts undifferentiated yeast, 13/62 parts Cladosporium, and 2/62 parts Mycelia Sterilia. Converting the parts to raw numbers by multiplying the parts by the total counts, the comparisons between the fungi identified in room 124 with outside air are as follows:

Sample 1
Room 124
Outside East Doors
Cladosporium
35
94
Rhodotorula (yeast)
12
259
Unidentified fungus
12
0
Scopulariopsis
12
0
Yeast (undifferentiated)
12
94
Sample 2
Room 124
Outside Front Doors
Cladosporium
12
153
Penicilliuim
12
0

38 A second study of mold levels was done on April 26, 2003, after the present litigation was commenced. The study was done by two different environmental firms, one commissioned by the claimant and the other by the insurer. The results of each firm's tests and conclusions are found at Exhibits 15 and 26.

39 Initially, there is controversy as to whether the results of the studies were affected by the conditions at the school. The claimant's expert noted that the school had been closed up for a week prior to the testing and that carbon dioxide concentrations were the same inside and outside, indicating the possibility that intake of outside air could have been 100%. (Ex. 15 at 6.) If testing conditions were invalid, as claimant suggests, then the first study must be given greater weight.

40 The claimant's expert was Mark Hlebichuk (Hlebichuk), an industrial hygienist. He tested for both spores and spore fragments in rooms 109 and 108, in the water-damaged area, the teachers' lounge, and room 124 (the claimant's room), as well as the outside air for comparison. He also tested the wall between rooms 108-109. All rooms showed overall spore levels less than or equal to outside air. The only elevated level was in the wall between rooms 108 and 109, which showed a total spores level more than six times the outside level.(5) However, the spore levels in the adjacent rooms did show corresponding levels.

41 Overall levels measured by Hlebichuk were as follows:

Location Total Spores
108 600
109 400
Teachers' Lounge 293
124 (claimant's room) 253
Outside Air 600

42 As set forth in the above chart, outside levels and the levels in rooms 108 and 109 were significantly higher than the levels in claimant's room. While Hlebichuk criticized testing conditions, he provided no credible evidence that molds not measured in claimant's room were in fact present or that actual levels of molds in her room were in fact significantly higher than measured.

43 In comparison to the outside air, all spore counts measured by Hlebichuk were lower in the claimant's classroom than outside. The comparison is as follows:

Spores (mold) Room 124 (claimant's room) Outside Air
Amerospores 173 333
Ascospores 27 187
Basidospores 27 67
Cladosporium 13 107
Unidentified 13 27

44 Hlebichuk also identified specific molds as being "water damage indicator[s]." (Ex. 15 at 5.) Those molds included Amerospores and Ascospores, both of which were found in the claimant's classroom. However, as indicated in the chart in the previous paragraph, the concentrations of those molds were far higher in the outside air than in the claimant's classroom. The fact that they were found outside in such concentrations calls into question the value of Hlebichuk's use of them as indicators of water damage, at least without more refinement.

45 Hlebichuk also tested molds at the claimant's modular home, where she lived with two or three dogs. The total spore level at her home was 2,107, which is more than eight times the overall level measured in her classroom (253) and more than three and a half times the overall level of molds measured outside the school on the same date (600). Moreover, the levels of the molds found in her home were in every case higher than in her classroom. The following chart shows the comparison:

Spores (mold) Room 124

(claimant's room)

Claimant's Home
Amerospores 173 1,400
Ascospores 27 107
Basidospores 27 147
Cladosporium 13 333
Unidentified 13 40
Aspergillus/Penicillum-like - 27
Antennaria - 13

46 The Occupational Safety and Health Bureau of the Montana Department of Labor and Industry also did an inspection of the Browning Middle School on July 16, 2002. Spore levels were measured in rooms 109 and 114, as well as outside in front of the building. Total spore levels outside were significantly higher than inside, 1,133 in comparison to 444 for room 109 and 422 for room 114. Individual spore counts were as follows:

Room Spores present
109 Amerospores - 44

Ascospores - 22

Cladosporium - 378

114 Amerospores - 67

Ascospores - 44

Aspergillus/Penicillium like - 67

Basidiospores - 44

Cladosporium - 200

Outside Antennaria - 67

Ascospores - 467

Cladosporium - 1, 133

Smuts/Myxomycetes - 67

While no measures of spore levels were taken in the claimant's classroom, the results are interesting for a couple of reasons. First, it confirms that the levels of some spores (Ascospores and Cladosporium) were far higher outside than inside. Second, it shows, as did the other studies, that the fact that a particular spore may be present in one room does not mean that it is present in other rooms. The studies also show collectively that the levels and types of molds found in one room or area were not indicative of the levels and types of molds in another room or area of the middle school.

47 The claimant was retested for allergies in October 2002 and June 2003. (Ex. 5 at 6-10, 19-20.) Testing showed multiple allergies, including allergies to cats, dogs, house dust mites, some trees, grasses, weeds, and molds. The molds to which she tested positive were Alternaria, Cladosporium (also known as Hormodendrum), Aspergillus fumigatus and Penicillium. (Sinclair Dep. at 29.) Two of the four molds (Alternaria and Aspergillus) were not identified in any of the air samples taken of the claimant's room but were identified in samples taken from her home. One mold - Cladosporium - was identified in the claimant's classroom but was present in higher concentrations outside and in the claimant's home. The fourth - Penicillium - was present in the claimant's classroom in one sample in low concentration. (See 35.)

48 Three medical opinions concerning the cause of the claimant's sinusitis during the 2001-2002 school year and her 2002 surgeries are in evidence, those of Dr. Wayne Sinclair, an allergist to whom the claimant went in the fall of 2002; Dr. John Larson, who conducted an occupational disease evaluation at the request of the Department of Labor and Industry; and Dr. Emil J. Bardana, Jr., an allergist retained by the respondent. Both Drs. Larson and Bardana opined that the claimant's condition was not an occupational disease caused by her exposure to molds at the Browning Middle School.

49 Before discussing the opinions of Drs. Sinclair, Bardana, and Larson, I note that the claimant requested Dr. Oehrtman, who treated her in 2002 and performed sinus surgery in May 2002, to write a letter stating that she could not work at the Middle School because it was a "high mold environment." (Ex. 1 at 6.) Dr. Oehrtman declined to do so. His office note concerning his conversation with the claimant is instructive:

The patient is very focused on a worker's comp claim that she cannot work in a high-mold environment, and wants me to write a strongly worded letter that she cannot work in that environment. I wrote a letter on her previous visit, which mentioned that since she is mold allergic it would be better for her to avoid a high-mold environment. I cannot, however, write a strongly worded letter unless various criteria are met: (1) that she would fail standard medical therapy for anyone whose [sic] is dealing with allergy, and (2) that we would demonstrate the environment that she is being asked to work in is higher than a normal mold content with spores per cubic meter. I have asked her to obtain this information. I will be happy to report on what I can report on. . . .

(Id.) There is no evidence that the claimant ever supplied Dr. Oehrtman with information showing unusual exposure to molds at work and Dr. Oehrtman never did provide any opinion linking her condition to her workplace.

50 Dr. Oehrtman's office note, quoted in the previous paragraph, is consistent with my resolution of the conflicting medical opinions in this case. He was the claimant's treating physician during a critical period of time in this case, i.e., the time when the claimant's sinusitis progressed to the point that she needed surgery. Even though he was her treating physician, his response to the claimant's request demonstrates objectivity on his part and shows the need for specific information regarding mold levels at the school in order to formulate a good medical opinion concerning the contribution, if any, of the school environment to the claimant's condition. His response demonstrates that the claimant's mere belief and assertion that mold at the school was causing or contributing to her conditions was not sufficient to provide a basis for an informed medical opinion. Third, he wanted the claimant to undergo standard medical therapy for all of her allergies before rendering any opinion concerning her ability to continue working. His prior notes (id. at 1) indicate that such therapy includes allergy shots, but as noted in paragraphs 25 and 52, the claimant was resistive to that treatment.

51 The claimant began seeing Dr. Sinclair in September 2002. Dr. Sinclair practices in Missoula and is board certified in allergy. (Sinclair Dep. at 5. ) His practice focuses on mold and he noted in his deposition that his initial work following his allergy training was working in litigation "with a bunch of lawyers in Florida that were working in a really badly mold-infested workplace . . . ." (Id. at 6.) However, his only publications relate to studies he has done for pharmaceutical companies but for which he has not claimed authorship. (Id. at 50.) He has not published on the subject of mold or mold allergies. (Id. at Exhibit 1.)

52 The claimant testified that she went to see Dr. Sinclair because Dr. Oehrtman had encouraged her to take allergy shots for mold. I find her explanation implausible and disingenuous; more likely she sought out Dr. Sinclair because Dr. Oehrtman had refused to provide her with the occupational disease opinion she sought from him and she was looking for a more sympathetic physician. She had been tested for allergies while under Dr. Oehrtman's care and he had recommended allergy shots on March 1, 2002. (Ex. 1 at 1). On May 10, 2002, Dr. Oehrtman wrote:

Anastasia returns today with continued problems with her sinuses. She states that she has thought about allergy shots and she is feeling that this is not going to be an option for her, particularly in view of her remote location and the fact that she seems to react very severely to drugs. . . .

(Id. at 3.) Moreover, claimant wrote an introductory letter to Dr. Sinclair on September 9, 2002, prior to her first appointment with him. That letter clearly shows that she was seeking assistance for her mold claim. The letter reads in full:

Dear Dr. Sinclair:

I have an appointment with you on September 25th. I have recently had allergy testing done by Dr. Oehrtman in Kalispell (I will get a copy of the results to you.) I have also had testing done by Dr. Lind in Minneapolis (again, I will get you a copy).

My biggest health problem seems to be from mold. I have had to have three surgeries to date resulting from my body's reaction to it. The school building I was working in last year has had a history of mold. Two of the science teachers found large colonies of mold and pointed them out to the administration last spring.

The district did authorize some testing last spring, however, when they tested, most of the doors to the outside were open and there was a significant breeze going through the school. Then in July, the state did some testing. But again the results were affected by the large amount of construction going on in the building, the majority of the doors being open, the ventilation system could not be tested, etc. The final report from the state will include that information once it is written.

Judy Murphy at the Department of Labor and Industry can give you preliminary results, but you must request them -- for some reason I am not permitted to get a copy. Her address and fax are:

P.O. Box 1728

Helena, MT 59601 FAX 406-444-9396

Thank you for your help in this matter.

Sincerely,

\s\ Anastasia Vercos

(Sinclair Dep. Ex. 2.) Indeed, there is no indication that the claimant has agreed to undergo allergy shots even after further allergy testing by Dr. Sinclair.

53 Dr. Sinclair testified by deposition. In a nutshell, he testified that the claimant's exposure to molds at the Browning Middle School aggravated her preexisting mold allergies and her sinusitis; he recommended that she not return to work at the Middle School until the school is free of mold.

54 Dr. Sinclair's opinion is driven by the claimant's report that she had greater symptoms at work than at home and upon her report that other individuals at the school had reported similar complaints. (Sinclair Dep. at 40-41, 60, 83, 89.) At the time his deposition began, he had not reviewed the claimant's medical records, the air quality and mold studies done at the Browning Middle School, or the reports of Drs. Bardana and Larson. (Id. at 54-55.) When shown the air quality reports, he admitted that mold concentrations were higher in claimant's home; that she was allergic to her dogs and that her dogs bring in mold from the outdoors; that her house was a good environment for mold; and that her other allergies play a role in her condition. (Id. at 84-86.) He admitted that the mold counts shown by the studies of the claimant's classroom were not elevated. (Id. at 76.)

55 With the agreement of counsel, Dr. Bardana testified by telephone. Dr. Bardana is board certified in internal medicine and allergy and immunology. (Ex. 33.) His Curriculum Vitae is forty pages long and impressive. He is a Professor of Medicine at the Oregon Health and Science University. He has received numerous professional awards during his career. He has been a member and officer of numerous professional organizations, including the American College of Chest Physicians (Section on Allergy and Clinical Immunology), the American College of Physicians, the American Academy of Allergy, Asthma and Immunology, and the American Board of Allergy and Immunology. He is the Editor-in-Chief of AllergyWatch, a journal dealing with allergy and asthma and has served on editorial boards of various allergy journals, as an editorial consultant to twenty-five medical journals, and as a textbook editor and author of textbook chapters. He has authored sixty-two published medical journal articles on original research, and another one hundred and three journal articles that do not involve original research. Of significance to this case, Dr. Bardana has contributed to published articles on mold and indoor air quality. (Trial Test.)

56 Dr. Bardana confirmed that mold can be an allergen but testified that it is not the most significant indoor allergen in the general population. Heading the list of most significant indoor allergens is house dust mites (to which the claimant is allergic), followed by cat and dog dander (the claimant has dogs), then cockroach and rodents, and finally mold.

57 Molds occur naturally and are ubiquitous, meaning they are everywhere. Dr. Bardana noted that the levels of molds outdoors vary seasonally and with weather. Indoor levels of naturally occurring molds are typically forty to eighty percent of outside levels. He also noted that mold levels can vary over very short periods of time, testimony that is supported by the mold measurements in this case. Finally, he noted that homes typically have higher levels of molds than do commercial buildings since commercial buildings have better air handling systems.

58 Dr. Bardana identified four types of outdoor molds as commonly occurring indoors. The molds are Cladosporium, Alternaria, Penicillium, and Aspergillus. As noted earlier, the outside Cladosprium levels were significantly higher than inside the school; Aspergillus was detected only in the claimant's home; and Penicillium was detected only in small amounts in one sample in the claimant's classroom.

59 According to Dr. Bardana, and not refuted by Dr. Sinclair, there is no documented dose relationship between mold and allergic reactions. Some molds, including Aspergillus, are known to cause numerous diseases. (Trial Test.)

60 Dr. Bardana opined that the claimant's sinusitis is due to her multiple allergies and her resultant rhinitis. He testified that mold is a minor issue in her disease and cannot be separated out from her other allergies. He testified upon cross-examination that the claimant's exposure to mold at school had no impact on her condition. He noted that outside air and the air in her home had higher levels of mold than her classroom in the Browning Middle School. The mold levels in the school did not exceed what is expected outdoors or indoors.

61 Dr. Bardana also concluded that the claimant's exposure to molds in her home was not all that significant either, although he noted that dust mites in the home could be significant.

62 The claimant urges that the absence of sinus infections since her May 2002 surgery is evidence that her sinus infections were triggered by mold in the Browning Middle School. Such inference, however, is weak at best. Dr. Bardana noted that the absence of infections since her 2002 surgery may well be due to the success of the surgery.

63 In evaluating the conflicting testimony of Drs. Sinclair and Bardana, I consider their medical credentials, their logic, their consideration of the claimant's medical records and the school air quality studies, and independent support provided by other physicians. On all of these measures, I find Dr. Bardana's testimony the more convincing.

64 Dr. Larson, who performed an independent occupational disease evaluation at the request of the Department of Labor and Industry, referred to Dr. Bardana in his report as "an internationally known expert on environmental and occupationally related diseases."(6) (Ex. 13 at 2.) Dr. Sinclair obviously did not share the same reverence for Dr. Bardana, testifying:

Q. Are you familiar with Emil Bardana?

A. I know him well.

Q. How do you know him?

A. As an allergist at Oregon.

Q. Do you respect him?

A. I'd rather not answer that.

Q. Really?

A. Yes, really.

Q. Why is that?

A. Just would rather not.

Q. You don't respect him?

A. That's not what I said, is it?

Q. No. You said you wouldn't answer that question.

A. That's correct.

Q. And I find that curious. Could you tell me why you won't answer it?

A. No, I won't tell you why.

(Sinclair Dep. at 54-55.) Dr. Sinclair's hostility to Dr. Bardana is obvious. In light of Dr. Bardana's credentials and Dr. Larson's acknowledgment of Dr. Bardana as an internationally known expert, I do not understand Dr. Sinclair's responses regarding Dr. Bardana. If there is a reason to discount Dr. Bardana as an expert in this case, I have not been provided with one. Dr. Sinclair's refusal to disclose the reasons for his hostility towards Dr. Bardana and his refusal to answer some other questions put to him by respondent's counsel are factors that negatively affect my evaluation of his testimony.

65 Moreover, as I have noted before, Dr. Sinclair arrived at his opinions before any review of medical records or the air samples at the school or the claimant's home. Ultimately, his opinions were based on the claimant's report that she suffered increased symptoms while teaching and her report that others at the school were suffering similar symptoms. His opinions therefore depend largely on the credibility and accuracy of the claimant's information.

66 While I do not doubt that the claimant sincerely believes that her sinus problems were caused by molds at the Middle School, I am also persuaded that her report of increased symptoms specifically associated with her work are unreliable. I note that she had a prior work experience which she believed exposed her to mold and caused her initial round of sinus surgeries. Her September 9, 2002 letter to Dr. Sinclair shows that she was focused on a similar explanation for her 2002 problems. But when she was seen at the emergency room of the Northern Rockies Medical Center in Cut Bank, Montana, on December 22, 2001, for sinus infection she reported "that she was exposed to mold recently while visiting someone at their home on Wednesday; had a severe reaction with her ears draining bilaterally." (Ex. 9 at 4.) Her report is inconsistent with the history she gave Dr. Sinclair and with her present claim that she immediately experienced sinus problems when going to work at the middle school and which she attributed to the school environment. I am persuaded that her recollection is colored by her present belief regarding her occupational disease claim.

67 The claimant has failed to persuade me that she suffers from an occupational disease resulting from her work at the Browning Middle School. She did not frequent the pod where flooding had occurred and where the highest concentrations of mold were found, as shown by actual testing. Mold varieties and levels in one room are not indicative of varieties and levels in another. Other than the belief of the claimant and a few others that excessive levels of mold existed in the school generally and in the claimant's room in particular, there is no persuasive evidence to support their claims. Indeed, the highest mold levels were found in the claimant's home, which is consistent with the testimony that commercial buildings have better air exchange systems than homes and therefore generally have less concentrations of mold. The claimant also has multiple allergies which explain her infections. Finally, the only medical opinion tying the claimant's infections and surgeries to workplace mold was that of Dr. Sinclair. The opinions of Drs. Larson and Bardana directly refute that opinion, and the observations of the physician who treated the claimant while she was still working at the school substantially undermines that opinion. I found Dr. Sinclair's opinion unpersuasive.

CONCLUSIONS OF LAW

68 This case is governed by the 2001 version of the Montana Occupational Disease Act since that was the law in effect at the time of the claimant's alleged industrial exposure. Buckman v. Montana Deaconess Hospital, 224 Mont. 318, 321, 730 P.2d 380, 382 (1986).

69 The claimant bears the burden of proving by a preponderance of the evidence that she is entitled to the benefits she seeks. Ricks v. Teslow Consolidated, 162 Mont. 469, 512 P.2d 1304 (1973); Dumont v. Wicken Bros. Construction Co., 183 Mont. 190, 598 P.2d 1099 (1979).

70 As a general matter, an insurer is liable only for those medical conditions caused or materially aggravated by an industrial accident or occupational disease. "Causation is an essential element to benefit entitlement. The claimant has the burden to prove a causal connection by a preponderance of the evidence." Hash v. Montana Silversmith, 256 Mont. 252, 257, 846 P.2d 981, 983 (1993); McCauley v. Liberty Northwest, 2004 MTWCC 43, 47.

71 The Occupational Disease Act specifically requires proof of causation and sets out the specific criteria which must be satisfied. Those criteria are set forth in section 39-72-408, MCA (2001). Those elements are as follows:

39-72-408. Proximate causation -- determination by treating physician.

(1) Occupational diseases are considered to arise out of the employment if:

(a) there is a direct causal connection between the conditions under which the work is performed and the occupational disease;

(b) the disease can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment;

(c) the disease can be fairly traced to the employment as the proximate cause;

(d) the disease comes from a hazard to which workers would not have been equally exposed outside of the employment.

None of the criteria have been met in this case. Initially, the claimant has failed to show that she was exposed to any greater level of molds or any different molds inside the classroom than outside and in her home. Indeed, when measured, her home had significantly higher levels of mold. Thus, neither subsections (b) or (d) are met. Moreover, the claimant failed to present persuasive medical opinion showing that her sinus condition and surgeries were directly caused by her exposure to mold at the school. Thus, neither subsections (a) or (c) are satisfied.

JUDGMENT

72 The claimant has failed to prove by a preponderance of the evidence that she suffers from an occupational disease. Her petition is dismissed with prejudice.

73 This JUDGMENT is certified as final for purposes of appeal.

74 Any party to this dispute may have twenty days in which to request a rehearing from these Findings of Fact, Conclusions of Law and Judgment.

DATED in Helena, Montana, this 30th day of June, 2004.

(SEAL)

\s\ Mike McCarter
JUDGE

c: Ms. Laurie Wallace
Mr. Leo S. Ward
Submitted: February 2, 2004

1. The Merriam-Webster Medical Dictionary provides a similar definition, defining rhinitis as "inflammation of the mucous membrane of the nose."

2. For the technically minded, the surgery was a "[b]ilateral endoscopic antrostomies and total ethmoidectomies." (Ex. 6 at 6.) An antrostomy consists of surgically opening sinus cavities. An ethmoidectomy is "excision of all or some of the ethmoidal [sinus] air cells . . ." (Merriam-Webster Medical Dictionary.)

3. The surgery was described as "Bilateral, endoscopic antrostsomies, polypectomies, and total ethmoidectomies." (Ex. 6 at 17.)

4. Why claimant believed she had been exposed to mold at the friend's house is not apparent.

5. Dr. Bardana testified that mold growing in a wall may not translate into increased levels of mold in the air of an adjacent room and these test results are consistent with his testimony. Thus, the fact that mold may be growing in a wall does not mean that individuals in the room are exposed to increased levels of that mold.

6. Dr. Larson, whose evaluation was independent of either of the parties in this case, further commented that Dr. Bardana's "report is extremely concise, very easy to read, and covers the chronology from 1999 to September of 2002 quite nicely. He reviewed all the evidence available . . . ." (Ex. 13 at 2.)

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