An employee says she should receive permanent disability benefits because mold at work was a significant factor in her chronic obstructive pulmonary disease (COPD). But she also smoked for 33 years. How did a court rule in this case?
Mary Beth O’Brien was diagnosed with COPD. She’d been a smoker for 33 years and stopped immediately after getting the diagnosis.
She’d been employed by Larry K. Fox & Associates, a financial advisor, as a marketing director for 14 months before her diagnosis.
Her symptoms got better after she stopped smoking, but several months later she reported that they got worse again.
The building where she worked had some water leaks. An indoor air quality assessment showed elevated mold concentrations, but they weren’t high enough to adversely affect air quality.
Six months after that assessment, O’Brien filed a petition before the Iowa Workers’ Compensation Commissioner for an injury in the course of employment.
She claimed her respiratory and pulmonary systems were injured as a result of exposure to mold in her workplace.
A second indoor air quality assessment of her office showed high levels of a black mold. It was recommended that all “water damaged drywall … of the former office of [O'Brien] should be remediated.”
What did the doctors have to say?
A doctor who examined O’Brien as part of an independent medical evaluation wrote, “The mold exposure from her workplace caused some aggravation of the preexisting condition. I think she did have aggravation of her symptoms from the moldy environment. I do not think there is any proof that there was a permanent change in the preexisting condition secondary to work related exposures. I believe the COPD can be credited to her past smoking.”
Another doctor, O’Brien’s primary physician, wrote, “While I agree with Dr. Gross that [O'Brien's] lung disease is partly due to tobacco use, I also believe she has had … well documented flares relative to her mold exposure.”
A workers’ comp commissioner ruled:
- O’Brien’s injury arose out of and in the course of employment, noting that both doctors agreed that the mold in her workplace aggravated her preexisting COPD
- her injury was a substantial factor in causing her permanent disability, therefore
- O’Brien should be awarded permanent partial disability benefits.
The company appealed, but the workers’ comp commission affirmed the commissioner’s ruling.
The company then appealed to a state district court which reversed the ruling. Finally, this case went to the Iowa Court of Appeals.
Court’s decision turns on one word
The appeals court noted that O’Brien’s doctor referred to “flares” as a result of the exposure to mold. It also noted that flares are “temporary events.”
The court said there was nothing in the doctors’ reports that specifically said the mold exposure was a significant factor in O’Brien’s claimed permanent disability.
The appeals court ruled O’Brien failed to present expert testimony establishing a causal connection between the workplace mold and her COPD. Disability benefits were denied.
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(Larry K. Fox & Assoc. v. Mary Beth O’Brien, Court of Appeals of Iowa, No. 0-960/10-1026, 3/21/11)