Posts Tagged ‘Kansas’

Annals of Compensability: A Bitter-Sweet Case of Chemical Sensitivity

Monday, September 19th, 2011

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.

Death Benefits in Kansas: Common Law Conundrum

Monday, October 25th, 2010

Tasha Dakota Burns lived with Tony Anguiano for four years. After his divorce from his first wife became final, Tony – on several occasions – asked Tasha to marry him. Tasha did not take him seriously, because his proposals only came when he had had a bit too much to drink.Tony gave Tasha an engagement ring for Christmas in 2005. Tasha acknowledged that neither she nor Tony referred to the rings as wedding rings, but it was her intention to marry Tony.
Tasha had one child by Tony, with a second on the way. Then on August 22, 2007, Tony was killed in a work-related accident, thrown from a scaffolding 40 feet in the air. The status of Tasha’s relationship to Tony suddenly became paramount. She filed for death benefits under the Kansas comp statute.
At her initial hearing for benefits, Tasha testified that she believed she and Tony were married sometime in 2005 because “he gave me a ring and I gave him a ring and he wasn’t going nowhere and I wasn’t going to go nowhere.” After the two exchanged rings, she said that Tony repeatedly stated, “I’m going to marry this girl or this is my baby and I’m going to marry her.” However, Tasha admitted that Tony never stated that the two were actually married.
It is painful and perhaps futile to parse the language of a couple that “ain’t going nowhere”, but parsing is what the judges in these cases must do. Under Kansas law, to establish a common-law marriage, a plaintiff must prove (1) capacity of the parties to marry; (2) a present marriage agreement between the parties; and (3) a holding out to the public as husband and wife.
“Although the marriage agreement need not be in any particular form, it is essential there be a present mutual consent to the marriage between the parties” [emphasis added].
Ah, there’s the rub: a “present mutual consent.” We can probably assume that, had Tony been around to answer the question, he would have affirmed his marriage to Tasha. But Tony, alas, is gone and Tasha is left holding the proverbial (empty) bag. The Court of Appeals upheld the workers comp court in its ruling that there was no proof of marriage.
What’s in a Name?
In building a case to reject Tasha’s claim, the Court pointed to the fact that she continued to use her maiden name. While she claimed that it is uncontroverted that she “holds out to the public her married name, present intent to be married…and a wedding ring on her finger,” Tasha testified that she introduces herself to others as “Tasha Burns,” her driver’s license lists her as “Tasha Burns,” she signed her 2005, 2006, and 2007 tax returns as “Tasha Burns,” and she never used the name “Tasha Anguiano” in any official capacity.
To which I say to the court, so what? Lot’s of women keep their original names after marriage, so a similar standard should be applied to common law marriages.
Tasha took the risk of living with Tony and having his kids, without the protection of formalizing their relationship. Surely, it seemed unimportant at the time, especially as the marriage proposals came only when Tony was a bit looped. But as this tale illustrates, we never know how much time is given to us. The fates can be cruel; the days that seem to stretch far into the future can end abruptly. And the consequences of not explicitly establishing the exact nature of a relationship may haunt us for the rest of our lives.

A bad way to make a living

Wednesday, March 28th, 2007

miners2.jpg
Every now and then ,we come across a historical site that catches our interest, either because it highlights an industry, a telling event, or some other matter related to work, insurance, or the matters that we tend to discuss here at Workers Comp Insider. Mining’s Legacy – a Scar on Kansas is just such a site. Hosted by the Lawrence Journal-World, the site uses text, video, photography and historical documents to tell the story of the mining industry in Cherokee and Crawford counties. The series chronicles the long-term impact that the industry has had on the landscape and the people of the area.
While the entire site is of interest, both for the historical and the contemporary significance, we found the worker stories to be quite compelling. “It was a bad way to make a living,” says 81 year-old Walter Weinstein, who went to work in the mines at the age of 12. He narrates a slide show that gives a good idea of the working conditions in the mines. It’s an interesting story, and one that will probably offer some perspective on any job annoyances you may have today.
A posting on discussion site Metafilter offers more colorful historical context around the industry, the era, and the geographic region.
The Department of Labor also has a fascinating historical mining exhibit on the Mine Safety and Administration Administration pages, encompassing topics such as the so-called breaker boys, children as young as 8 years old who worked the mines, “Eight Days in a Burning Mine”, the harrowing story of a survivor of the Cherry mine disaster, and pages focusing on the history of Irish, Asian, and Afro-American mine workers.
Not the stuff of yesteryear
Unfortunately, unsafe conditions are not just a matter of historical record. While safety has improved, mining continues to be among the world’s most dangerous professions, both here in the U.S., and in various points throughout the globe. Last year, U.S. coal mine deaths spiked to a 10-year high. Two weeks ago, we had our first U.S. miner death in 2007, and this week, at least 107 miners lost their lives in underground Siberian tunnels and in China, where at least 5,000 die in mining accidents each year, 15 workers perished in a flood and another 26 died in an unrelated explosion.