We know that there are individuals with extreme sensitivity to chemicals. What we don’t know, in many cases, is whether exposure to chemicals in the workplace produces a compensable incident under workers comp. As with work-related illnesses (e.g., cancer possibly caused by workplace carcinogens), it can be difficult to prove that the workplace exposure is the predominant cause of the disability.
For a little over a year in mid-1990s, Deborah Chriestenson worked for Russell Stover Candies in Iola, Kansas. She had been diagnosed with multiple chemical sensitivity in 1986. She worked as a plant nurse, safety coordinator, and workers compensation benefits coordinator. Her office was located across the hall from a laundry facility. Chriestensen contends that she could smell bleach on a regular basis in her office. She claimed to have suffered respiratory symptoms as well as increasing headaches as a result of this exposure.
Chriestenson also claims she was occasionally exposed to methyl bromide fumes emanating from a room where nuts were fumigated. In addition, she claims that she was exposed to fumes from pesticides, truck exhaust, paint, and anhydrous ammonia at various times during her employment at Russell Stover. [As for the future eating of chocolate nut clusters from Russell Stover or any other manufacturer, I leave it to the reader to perform his/her own risk analysis…]
Soon after her termination from the company, Chriestenson filed a workers comp claim. She received temporary total disability benefits. Her claim wended its way slowly through the Kansas system, until 2006, 11 years after she left the company, a split panel of comp judges awarded her permanent total disability (PTD) benefits.
There were two key elements supporting of Chriestenson’s claim: her own testimony and that of an expert witness, Dr. Grace Ziem, who specializes in chemical sensitivity. (Dr. Ziem’s website is full of red flags for toxic exposures.) Dr. Ziem’s testimony was key: without her connecting Chriestensen’s problems directly to the workplace, there would be no comp claim.
Evidence-Based Medicine
The Kansas Court of Appeals has reversed the decision to award Chriestenson PTD benefits. While they recognize Dr. Ziem’s skills as a medical provider, they question her credentials to connect Chriestenson’s problems to the workplace. For one thing, Chriestenson is a lifelong smoker; Dr. Ziem casually dismisses any connection between smoking and Chriestenson’s respitory problems. In addition, Dr. Ziem did not bother to examine the medical records pertaining to treatment of Chriestenson in the days and months immediately following her filing of a comp claim. Finally, the Kansas court calls into question Dr. Ziem’s methods, citing court rulings in two other cases where her testimony was rejected outright.
In Georgia:
Our research has revealed that several courts across the United States have also had difficulty with causation opinions expressed by Dr. Ziem in chemical sensitivity cases. In Mason v. Home Depot U.S.A., Inc., 283 Ga. 271, 658 S.E.2d 603 (2008), Dr. Ziem was not permitted to testify on causation in an civil lawsuit against a manufacturer and seller of a floor covering product. The Georgia Supreme Court upheld a trial court’s determination that “Dr. Ziem’s methods [are] based only on her own experience and opinions, without any support in published scientific journals or any reliable techniques for discerning the behaviors and effects of the chemicals contained” in the floor covering product. 283 Ga. at 279.
In Tennessee:
Likewise, in Wynacht v. Beckman Instruments, Inc., 113 F.Supp.2d 1205 (E.D. Tenn. 2000), the United States District Court for the Eastern District of Tennessee did not allow Dr. Ziem to offer an opinion on causation in a product liability case arising out of alleged exposure to chemicals in the workplace. Although the court found her qualified to diagnose medical conditions and treat patients, it found that “[t]he ability to diagnose medical conditions is not remotely the same . . . as the ability to deduce, delineate, and describe, in a scientifically reliable manner, the causes of those medical conditions.”
Given her prior history, the lack of compelling evidence in the workplace exposure and her ongoing smoking, Chriestenson is unable to prove a definitive connection between workplace exposures and her current inability to work. It is a sad case, for sure, and it is entirely possible that work contributed in some degree to her current dilemma. But the burden of proof in this type of claim is difficult, often impossible, to achieve. For all her expertise in treating chemical sensitivity, Dr. Ziem has fallen short in her effort to establish herself as a credible expert witness – at least in Georgia, Tennessee and Kansas.
Posts Tagged ‘fumes’
Annals of Compensability: A Bitter-Sweet Case of Chemical Sensitivity
Monday, September 19th, 2011Sewer Dweller
Monday, June 21st, 2010A sewer may not be the preferred place to begin the work week, but the working world calls and we must follow. About a year ago, we blogged the sad story of Shlomo and Harel Dahan, respectively the owner and heir of S. Dahan Piping and Heating company in Queens, New York. They were hired to vacuum an 18-foot-deep dry well at a plant owned by Regal Recycling. Harel went in first. When he failed to emerge, his father went in after him. When the father failed to surface, an employee of Regal, Rene Rivas, went in after them. All three were overcome by deadly fumes at the bottom of the well. All three died.
Now we read in the New York Times that Sarah Dahan, Shlomo’s widow and mother of Harel, brought the remains of her husband and son to Israel for burial. She left the company in the hands of Ygal Lalush, a trusted employee. In her absence, Lalush changed the locks, stole the company’s four trucks, wrote $30,000 in company checks for his personal benefit and started running the company out of his own home under a different corporate name.
Ms. Dahan discovered the problem when she returned from Israel. She first tried to resolve the issue directly with Lalush. When that failed, she went to the authorities. Lalush has been charged with fraud, grand larceny, forgery, possession of stolen property and falsifying business records.
Lessons from the Underground
We could conjecture about the frailty of human nature and the dark shadows that accompany us all as we make our way through the world. We could wonder at the transformation of a loyal employee into a pathetic crook. (Perhaps his lawyer will chalk it up to post-traumatic stress syndrome!) That aspect of this tale will remain forever hidden, like the contents of the sewers cleaned by S. Dahan Piping and Heating.
The take-away from this tale lies within the Dahan family: the father who tried in vain to save his son. The mother who fulfilled a commitment by burying her husband and son in Israel and who tried unsuccessfully to convince her wayward employee to abandon his demented plan. There is genuine dignity in these people, who deserved both a better fate and a higher class of employee.
Health Wonk Review, medical costs, price hikes, joint & several liability, and more
Thursday, December 11th, 2008Health Wonk Review — The “Just the Facts, Ma’am” Edition – hosted by Vince Kuraitis at e-CareManagement – Dragnet fans take note!
NCCI report on medical benefits – The medical share of total losses has grown dramatically — from just over 40% in the early 1980s to almost 60% today. NCCI takes a closer look: Analyzing the Shift in the Medical Share of Total Benefits (PDF)
Price hikes forecasted – economists at Swiss Re are predicting a deep recession and price hardening across all lines of insurance through 2010, insurance and reinsurance inclusive.
Walmart death – This topic has been making waves in the law blogs. Troy Rosasco talks about the likelihood that exclusive remedy will preempt any lawsuits in the case of the trampling death of a Walmart employee in a post-Thanksgiving sale stampede, and talks about how the retailer could face criminal investigations. Of course, that doesn’t mean that lawsuits haven’t been filed – Eric Turkewitz updates us on the family bringing suit; Walter Olson offers his perspective on “5 minute after” suits. My colleague Jon had blogged about this last week: Walmart’s Killer Bargains.
Can you say Joint & Several liability? – a recent study profiled in Risk and Insurance shows that small business owners are not fully aware of the financial risks involved in obtaining workers’ compensation insurance through self-insured groups. Despite several high-profile failures, “…85 percent of respondents indicated that they had not seen, read or heard about the closure of several self-insured groups over the past year. More than one-half (58 percent) of respondents reported that they were unaware that companies belonging to self-insured groups remain financially responsible — often for years — for the claims of all companies in their group, not just their own businesses.” See: joint & several liability.
Fumes and confined space – We noted a sad story last month about two amateur winemakers in France who died after being overcome by fumes while trampling grapes. While this might sound like unusual circumstances, the issue of confined space and the danger of fumes is a significant agricultural risk. Hydrogen dioxide-related deaths (PDF) also occur in manure pits – there have been several instances when rescuers enter the pit only to succumb to the fumes as well.
