Opinion
No. 60452-0-I.
May 27, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-2-11637-2, Andrea A. Darvis, J., entered July 16, 2007.
Reversed by unpublished opinion per Becker, J., concurred in by Appelwick and Lau, JJ.
Five years after a buildup of mold was cleaned out of the damp and leaky building in which she worked, an employee experienced severe respiratory symptoms that she attributed to workplace exposure to the mold. Her occupational disease claim was rejected by the Board of Industrial Insurance Appeals, but a superior court jury reversed the Board's determination. The record contains insufficient evidence that the claimant's disease or infection arose naturally and proximately out of her employment. We reverse the trial court's ruling denying the employer's motion for a new trial.
Annette Shillinger, a librarian at Cedarhurst Elementary School since1990, began experiencing upper respiratory problems when she returned to the school in August 2003 to prepare for the upcoming school year. While working long hours in the library, Shillinger developed a very sore throat and burning sensation in her chest. The symptoms cleared up on weekends and when she was away from school, but flared up when she was in the library. Shillinger knew that the school district had discovered and remediated a mold problem at Cedarhurst in 1998. The school remained damp and leaky, and Shillinger believed there was a continuing problem with mold that caused the health problems that surfaced in 2003. She eventually quit her position.
Shillinger applied for benefits with the Department of Labor and Industries in March 2004, alleging that she had sustained an occupational disease or injury on August 8, 2003, occasioned by exposure to mold in the workplace. The department allowed Shillinger's claim. Highline School District, a self-insured employer, filed an appeal with the Board of Industrial Insurance Appeals. The Board reversed the decision of the department, finding that none of Shillinger's symptoms — sinus problems, fatigue, fibromyalgia and depression — were proximately caused by exposure to mold or any other hazardous contaminant in the workplace:
1. On March 9, 2004, Annette Shillinger filed an application for benefits with the Department of Labor and Industries, alleging she had sustained an occupation disease/industrial injury on August 8, 2003, occasioned by exposure to mold in her workplace at Cedarhurst Elementary School, part of the Highline School District No. 401. On May 27, 2004, the Department issued an order allowing the claim. On July 19, 2004, the self-insured employer filed a protest and request for reconsideration. On August 6, 2004, the Department issued an order affirming the May 27, 2004 order. On September 27, 2004, the self-insured employer filed a notice of appeal with the Board of Industrial Insurance Appeals. On October 28, 2004, the Board issued an order granting the appeal, assigning it to Docket No. 04 22932, and directing that proceedings be held.
2. In 1998, mold was found in various places at the Cedarhurst Elementary School. The school is over 50 years old, has a flat roof, and continuously leaks. The mold was remediated in 1998. No evidence of deleterious mold has been found in the school since that remediation.
3. The claimant suffers from sinus problems, fatigue, fibromyalgia, and depression. None of those conditions were proximately caused by exposure to mold or any hazardous contaminant in the workplace.
4. Ms. Shillinger's upper respiratory conditions did not arise naturally and proximately out of the distinctive conditions of her employment with Highline School District No. 401.
Clerk's Papers at 220.
Shillinger filed an appeal to the superior court. A record consisting of live testimony and depositions submitted as evidence before the Board was read to a jury. The jury was given the four findings quoted above and was directed to answer the question, "Was the Board of Industrial Insurance Appeals correct in deciding that Ms. Shillinger did not sustain an occupational disease related to her employment with the Highline School District?" The jury's answer was "No."
Clerk's Papers at 117. (Verdict Form)
Highline moved for a new trial. One of the grounds was the insufficiency of the evidence to support a conclusion that Shillinger sustained an occupational disease. The trial court denied the motion. Highline appeals from that decision, Page 4 maintaining that there is not substantial evidence in the record to support the verdict.
"Overturning a jury verdict is appropriate only when it is clearly unsupported by substantial evidence." Burnside v. Simpson Paper Co, 123 Wn.2d 93, 107-08, 864 P.2d 937 (1994). The substantial evidence test is met where there is sufficient evidence to persuade a rational, fair-minded person of the truth of the premise. Winbun v. Moore, 143 Wn.2d 206, 213, 18 P.3d 576 (2001).
An "occupational disease" is a disease or infection that arises "naturally and proximately" out of the employment. RCW 51.08.140. With respect to the requirement of proximate causation, the claimant must prove that the disease has no intervening cause and would not have been contracted but for the "condition" existing in the employment. McClelland v. ITT Rayonier, Inc., 65 Wn. App. 386, 392, 828 P.2d 1138 (1992). "The causal connection between a claimant's physical condition and his or her employment must be established by competent medical testimony which shows that the disease is probably, as opposed to possibly, caused by the employment." Dennis v. Dep't of Labor and Indus., 109 Wn.2d 467, 477, 745 P.2d 1295 (1987). The worker must establish the "distinctive conditions" of her employment that gave rise to the disease.
We hold that a worker must establish that his or her occupational disease came about as a matter of course as a natural consequence or incident of distinctive conditions of his or her particular employment. The conditions need not be peculiar to, nor unique to, the worker's particular employment. Moreover, the focus is upon conditions giving rise to the occupational disease, or the disease-based disability resulting from work-related aggravation of a nonwork-related disease, and not upon whether the disease itself is common to that particular employment. The worker, in attempting to satisfy the "naturally" requirement, must show that his or her particular work conditions more probably caused his or her disease or disease-based disability than conditions in everyday life or all employments in general; the disease or disease-based disability must be a natural incident of conditions of that worker's particular employment. Finally, the conditions causing the disease or disease-based disability must be conditions of employment, that is, conditions of the worker's particular occupation as opposed to conditions coincidentally occurring in his or her workplace.
Dennis, 109 Wn.2d at 481. There must be "objective" proof of the relationship between the employment and the disease; the claimant's subjective impression of conditions at her place of employment will not suffice to establish an occupational disease. McClelland, 65 Wn. App. at 394.
It is undisputed that Cedarhurst had a problem with mold in 1998. A school district employee testified that he found mold in two rooms as well as in the pipe chase between the girls' and boys' bathrooms. There is no evidence that mold was found in the library where Shillinger worked. Remediation was done in 1998 to remove the mold.
Shillinger notified the school in September 2003 that she believed exposure to mold at the school was the cause of her health problems. Highline had several different industrial hygienists come to the school and test for mold. The inspectors sampled mold in the air, looked for visible mold growth on surfaces, and one of them bored holes into the walls to check the wall cavities for mold growth. None found mold in the school.
At the Board hearing, Shillinger attempted to show that mold growth was a continuing problem at Cedarhurst. She introduced testimony that the school had regular water intrusion problems due to the leaky roof. There was evidence that she, along with a number of other teachers and students, had respiratory ailments that became acute while they were at the school and less bothersome when they were away. Shillinger received permission from the Board to have her own inspector test for mold at Cedarhurst in May 2005. However, that inspection also failed to find evidence of any mold growth at the school. The Board remarked that the "implied but unproven thrust of the claimant's case was that there was a mold contamination somewhere in the relevant school building, although it was not found." The Board adopted as its own the opinion of the hearing judge, which accurately summarized the evidence as lacking any proof of mold growth after 1998:
Clerk's Papers at 218.
In my opinion, Ms. Shillinger's claim for occupational disease arising from exposure to toxic levels of mold at Cedarhurst Elementary School has been virtually decimated by the fact that not a single witness has testified that he or she has observed or detected deleterious mold at Cedarhurst after the District's 1998 remediation endeavor.
The public health expert witnesses are unanimous. Their testing, their inspections, their investigations, their risk assessment, have all produced negative findings on the issue of whether Ms. Shillinger was exposed to unhealthful accumulations of mold while in the course of employment at Cedarhurst. . . . The signs of dangerous mold are not subtle. Where mold is or may be dangerous, it bears a strong odor of mold and mildew, there typically is very visible mold contamination, and building inspections generally demonstrate substantial involvement of the building materials with mold contamination.
Clerk's Papers at 218-19.
On appeal to this court, Shillinger is no longer attempting to make the case that she was exposed to mold at the school in 2003, when her symptoms became severe. Her brief concedes that the School District proved that "the school was safe after 2003." Instead, she argues that there is evidence that she sustained a latent occupational mold disease while working in the school between 1990 and 2003.
Br. of Resp't at 2.
Shillinger relies primarily on the testimony of three doctors who examined her: Dr. Bartha, Dr. Marinkovich, and Dr. Buscher. Shillinger visited Dr. Bartha twice, in December 2003 and in April 2004. Shillinger reported to Dr. Bartha that her building had a history of leakage, and that the carpet in the library was the same one that had been there before the 1998 remediation. She also reported that her symptoms developed when she was at work, and diminished on the weekends. Dr. Bartha thought the temporal association was significant:
So there was this person who was working in a moisture-damaged building and developing these symptoms of respiratory distress among others, and she had a temporal pattern to her symptoms. . . . So to me that was a strong suggestion that her symptoms were related to the indoor environment in which she worked.
Deposition of Dr. Bartha (May 27, 2005) at 17.
Dr. Bartha testified generally that chronic moisture in buildings can lead to various forms of biological growth, including bacteria, algae, and dust mites in addition to mold. She did not specifically diagnose Shillinger with a mold-related disease. She simply concluded that "her sinusitis and rhinitis and her allergies were triggered by her working in the building" more probably than not.
Deposition of Dr. Bartha (May 27, 2005) at 25.
Deposition of Dr. Bartha (May 27, 2005) at 26.
What Shillinger alleged at the outset and what she undertook to prove at the hearing was that she had sustained an occupational disease as a proximate result of her exposure to mold at work. Dr. Bartha's testimony does not prove a connection to mold. Indeed, it does not establish a nexus between any of Shillinger's symptoms and a distinct condition of her employment. It relies entirely on Shillinger's report that the flaring up of her symptoms coincided with the times when she was physically present at the school building. There is no testimony establishing that the symptoms were caused more probably than not by exposure to mold, rather than exposure to damp carpet, bacteria, algae, or dust mites. There is no testimony explaining how the temporal association between Shillinger's respiratory ailments and her visits to the school in 2003 can be viewed as significant if, as Shillinger has now conceded, the school at that time was free from mold. We conclude Dr. Bartha's testimony is insufficient to Page 9 support the verdict.
Shillinger also saw Dr. Marinkovich, a California physician who specializes in allergy and clinical immunology, in March 2005. Shillinger gave Dr. Marinkovich a history of her symptoms and her exposure to mold. Dr. Marinkovich concluded that she was "probably being exposed" to mold for much of the period that she worked in the building. He said that upon review of her symptoms and her history of exposure, "I think there's only one thing that can put those two together, and that is that she was reacting to the mold that was present in her work space." He repeated this reasoning when giving his ultimate opinion that more probably than not, Shillinger suffered a disease as a proximate result of her exposure to mold at Cedarhurst: "To me it's just — it's a slam dunk. It's so consistent with her history and her physical findings and her complaints that I just don't see any alternative process that could give us the same result. And also she's responding to therapy, which I think also helps understand how to interpret all these various inputs."
Report of Proceeding (June 1, 2005) at 54.
Report of Proceeding (June 1, 2005) at 55.
Report of Proceeding (June 1, 2005) at 81.
As reflected in the written order of the hearing judge, the Board took a dim view of Dr. Marinkovich's testimony:
Aside from the claimant's failure to prove that her work exposed her to mold or similar pernicious elements, the medical evidence submitted by the claimant does not persuade me. For example, I am deeply troubled by Dr. Marinkovich's failure to Page 10 adhere to the scientific method associated with competent differential diagnosis. Dr. Marinkovich has come close to confessing that his opinions come first and the corroborating evidence, if any, comes later.
Dr. Marinkovich did testify that Ms. Shillinger would not have been as ill as she was in March 2005 had she not suffered a large exposure to mold. The implication of this statement is fatal to Ms. Shillinger's appeal. Ms. Shillinger did not suffer a large exposure to mold at Cedarhurst, if she suffered any degree of unhealthful exposure to mold at work.
Clerk's Papers at 219 (Judge Keith-Miller's Order, Jan. 23, 2006).
We agree with the Board that there is a fatal flaw in Dr. Marinkovich's testimony if his statement about the necessity for a "large exposure to mold" is understood as meaning an exposure more or less contemporaneous with Shillinger's symptoms in 2003. In fairness to Dr. Marinkovich, he did attempt to explain how a large exposure to mold in the distant past could correlate with her more recent respiratory problems. He acknowledged a lab report showing that Shillinger's mold antibody levels were higher in 2005 (when she was no longer at Cedarhurst) than they were in 2004. Mold antibodies have a half-life of about 21 days, he said, and so ordinarily one would expect to see a drop in antibody levels when exposure is reduced. He opined, however, that more probably than not, Shillinger's mucous membranes had become "colonized" by mold, with friendly bacteria being replaced by fungi that cause surface inflammation and can even destroy tissue. The antifungal treatment he was providing to her, he Page 11 explained, was killing off the fungi and causing them to release all their poisons, leading to an increase in her antibody levels even though she was no longer exposed to the mold at work.
Report of Proceeding (June 1, 2005) at 58.
Report of Proceeding (June 1, 2005) at 83.
Report of Proceeding (June 1, 2005) at 80-85.
Whatever the merits of Dr. Marinkovich's reasoning about colonization and antibodies, we conclude his testimony does not support a finding that Shillinger's symptoms were caused by exposure to mold at Cedarhurst. Dr. Marinkovich simply assumed that Shillinger was exposed to mold at Cedarhurst continuously between 1990 and 2003, when there is no objective evidence that mold growth was present after 1998. And like all other witnesses, Dr. Marinkovich testified that mold is ubiquitous both indoors and outdoors in the Pacific Northwest. If, as he testified, mold is virtually impossible to eradicate once it has colonized in a damp place, then the mold that allegedly colonized Shillinger's mucous membranes could have come from anywhere at any time. At best, Dr. Marinkovich's testimony states an opinion that Shillinger's symptoms were consistent with symptoms of other people who have been diagnosed as having a mold-related disease. This is insufficient to support the verdict of an occupational disease arising from distinct conditions existing at Cedarhurst.
Shillinger also met an environmental medicine physician, Dr. Buscher, on April 12, 2004. Shillinger reported a history of sinusitis, headaches, fatigue, throat discomfort, difficulty thinking, hoarseness, and coughing spells, all of which she attributed to "something she was exposed to in her workplace." Shillinger also reported to Dr. Buscher that in late summer 2003 her chronic neck and back pain was interfering with her work, that she had been taking Valium for about eight years to help her sleep, that she had a disabling kidney infection in December 2003, that she was also diagnosed that year with depression, and that she had fibromyalgia. She did not tell him that she had a history of anemia. A physical examination revealed swollen nasal mucous membranes, an inflamed throat, and tenderness over her sinuses. Having reviewed the notes, test results, and deposition of Dr. Marinkovich and the mold tests ordered by Dr. Bartha, Dr. Buscher diagnosed Shillinger with "fungal sinusitis which is complicated with sort of a debilitating fatigue state that was induced by something she was exposed to in a school, more likely mold or fungus." Dr. Buscher was convinced that Shillinger had developed an increasing sensitivity to mold, so that smaller amounts of mold that never affected her before would now be bothersome. He testified that more probably than not, she had "an occupational caused disease."
Clerk's Papers at 357 (Deposition of Dr. Buscher, June 13, 2005).
Clerk's Papers at 369-71.
Clerk's Papers at 358.
Clerk's Papers at 361, 365.
Clerk's Papers at 364.
Dr. Buscher's testimony did not explain why he believed Shillinger's symptoms were due to mold exposure at Cedarhurst rather than to conditions of everyday life. Like Dr. Bartha, Dr. Buscher based his opinion in part on Shillinger's report that her symptoms in 2003 diminished when she was away from the school, and were renewed when she returned to the school. As discussed earlier, this temporal relationship is significant only if the problem is being caused by mold that is physically present at the school. Yet, there is no evidence that mold was physically present at the school in significant amounts after 1998. When asked about reports that there was no significant mold found in the school during the investigations that followed Shillinger's complaints in 2003, Dr. Buscher said the reports must have been wrong because mold is always present in the Northwest:
Q. Does the fact that the industrial hygienist, in February of `04, August of `04 and April of `05, didn't find any significant mold, does that affect your opinion?
A. I find it difficult to believe they didn't find any mold at all in a room in the Northwest, especially in a building that was previously quite contaminated unless they sanitized the room. If they did bacterial cultures and found actually no mold is surprising to me, no background mold at all.
Clerk's Papers at 364.
Testimony that mold is everywhere is insufficient to support a conclusion that mold was a distinctive condition at Cedarhurst in 2003.
However, Shillinger also cites Dr. Buscher's testimony as support for her theory of a latent exposure — that she became contaminated by the mold at Cedarhurst before 1998 even though years would pass before her diseasewould manifest itself in the fall of 2003. Dr. Buscher was asked on direct examination for his opinion about when Shillinger began to have the exposure that caused her symptoms:
Q. Given the history of her working there, do you have an opinion with regard to when she began to have the exposure that caused the symptoms?
A. Well, again, that's hard to judge but I say at least two years prior to her crashing which was 2003. Remember, she was getting more respiratory infections, sinus and bronchial infections, for at least two years prior to the day she got really sick in 2003. So at least two years, probably longer, it just took a while for it to catch up with her.
Q. In the beginning does a person, in the beginning of an exposure to mold, does a person experience symptoms?
A. They may not. It may take a while.
Clerk's Papers at 365-66.
Dr. Buscher's testimony reflects Schillinger's unproven assumption that there was ongoing mold contamination at school after 1998. In effect he was saying that because she got sick she must have been exposed to mold, and it might have been before the mold was cleaned up because it might have taken some time for the symptoms to develop. Expert testimony that amounts to doctors stating that a condition may be or possibly is caused by the claimant's employment is insufficient proof of an occupational disease. Ehman v. Dep't of Labor and Indus., 33 Wn.2d 584, 602, 206 P.2d 787 (1949).
The latency aspect of mold-related disease is the crux of Shillinger's case on appeal, yet below she asked only the one question quoted above to develop Page 15 proof of a delayed onset of the disease. Dr. Buscher's answer failed to demonstrate that Shillinger's presence in 1998 in the same building where mold was found some distance away caused her to have a significant exposure, distinct from conditions of everyday life, or that such exposure was a proximate cause of her outbreak of symptoms in 2003. He does not explain how a mold related disease can lie dormant for five years and then flare up at a time and place where no mold is present. He said it would be "hard to judge" when Shillinger was exposed to mold, then speculated that it must have been "at least" two years before her outbreak of severe symptoms because she had been experiencing moderate respiratory symptoms in that two-year period. Like Dr. Marinkovich, he seems to have assumed that Shillinger's symptoms are related to mold and dampness at Cedarhurst because Shillinger believes that they are. This is insufficient to link Shillinger's health problems to a distinctive condition of employment at Cedarhurst.
Because there is not sufficient evidence to support the jury's finding that Shillinger had an occupational mold-related disease, we conclude the trial court erred in denying Highline's motion for a new trial based on that ground under CR 59(a)(7).
In other worker's compensation cases where there was insufficient evidence to sustain the verdict, appellate courts have reversed and remanded the case for entry of a judgment notwithstanding the verdict (now known as Page 16 judgment as a matter of law.) But this has occurred only where the prevailing party moved for such relief in the trial court. See Zipp v. Seattle School Dist. 1, 36 Wn. App. 598, 607, 676 P.2d 538 (1984); Sacred Heart Medical Ctr. v. Carrado, 20 Wn. App. 285, 290, 579 P.2d 412 (1978), rev'd 92 Wn.2d 631 (1979). We cannot grant such relief here because Highline did not move under CR 50 for judgment as a matter of law before submitting the case to the jury. Highline's only request for relief based on insufficiency of the evidence was a post-trial motion for a new trial under CR 59(a)(7) (new trial may be granted on the ground that "there is no evidence or reasonable inference from the evidence to justify the verdict"). A party must move for judgment of matter of law before the case is submitted to the jury. CR 50(a)(2). The motion can then be "renewed" after entry of judgment. CR 50(b). After the case was submitted, the only remedy available to Highline for insufficient evidence was to request a new trial under Civil Rule 59(a)(7). Highline moved for a new trial and the trial court denied the motion. The only relief we can grant is to reverse the order denying a new trial.
We recognize the problem created by application of the rules in this context. This is not an ordinary civil jury trial; it is a special type of jury trial conducted under RCW 51.52.115 to determine the correctness of a ruling by the Board of Industrial Insurance Appeals. Unlike the ordinary civil jury trial, the jury hears only the administrative record. Because we have now concluded that the Page 17 administrative record is insufficient to support Shillinger's claim, obviously it would be futile to conduct another trial where all the jury is allowed to hear is that same record. If a second jury were to rule in favor of Shillinger on this record as the first one did, the law of the case would require that the second verdict likewise be reversed because of insufficient evidence. But the parties have presented no argument that any form of relief other than a new trial is appropriate in the present posture of the case. We have found no authority guiding the application of CR 59(a)(7) to an order granting a new trial on a workers' compensation appeal. We must leave this dilemma to be addressed by the trial court on remand.
The order denying Highline's motion for a new trial is reversed.