A worker with chemical sensitivity who is also called “a fairly heavy smoker” by a doctor says exposure to substances at work caused her to be permanently and totally disabled. Can she prove that, and can she get workers’ comp?
Deborah Chriestenson worked for Russell Stover Candies (RS) in Iola, KS, for 20 months as a plant nurse, safety coordinator and workers’ compensation benefits coordinator.
She’d been diagnosed with multiple chemical sensitivity about 11 years before starting at RS.
Chriestenson smoked cigarettes before, during and after her employment at RS. Her doctor said she was a “fairly heavy smoker.”
Her office was located across the hall from the plant’s laundry facility, and Chriestenson said she could smell bleach on a regular basis.
She also claims she was exposed to methyl bromide fumes in a room where nuts were fumigated, and occasionally to fumes from pesticides, truck exhaust, paint and anhydrous ammonia.
Her final chemical exposure at RS occurred when the floor of her office was stripped and rewaxed. RS allowed Chriestenson to move from the office, but she says she was exposed to fumes in the room for about 15 minutes while she collected her things.
Ten days later, Chriestenson’s employment at RS was terminated. Ten days after that, she filed for workers’ comp. In the application, Chriestenson only listed the incident involving the floor rewaxing in her office.
Chriestenson was seen by several doctors who didn’t agree on whether her exposure to chemical fumes at RS caused permanent injury.
An administrative law judge (ALJ) found Chriestenson had experienced temporary symptoms from chemical exposure at RS, but she didn’t sustain any permanent illness that required future medical treatment.
Chriestenson appealed to the Workers’ Compensation Board (WCB).
Decision hinged on expert
Three members of the five-person board found “it is more probably true than not that [Chriestenson] is unable to engage in substantial and gainful employment. Consequently, [Chriestenson] is entitled to receive permanent total disability benefits.”
The three members said their opinion was due largely to testimony by chemical sensitivity expert Dr. Grace Ziem.
However, the other two board members agreed with the ALJ and wrote a dissenting opinion. They said Chriestenson “should be denied benefits beyond short-term medical treatment for the temporary aggravations suffered while employed by [Russell Stover].” The two dissenters said the majority should not have based its conclusions on the opinions of Chriestenson’s expert, because Dr. Ziem:
- is not board certified in this specialty
- had no information regarding the strength of the chemicals Chriestenson may have been exposed to at RS nor the duration of the exposures
- only had information provided by Chriestenson more than seven years after her employment at RS ended
- did not review any of Chriestenson’s previous medical records, and
- believed Chriestenson’s history of cigarette smoking before, during and after her employment at RS was irrelevant to her workers’ comp claim.
RS took the case to the Court of Appeals of Kansas, which noted the Kansas Supreme Court has ruled the actual level of exposure for multiple-chemical sensitivity must be shown — a point made by the dissenting members of the WCB.
So the appeals court ruled Chriestenson did not suffer a permanent and total disability arising out of or caused by her employment at Russell Stover. The court said the WCB should deal with any benefits Chriestenson may be entitled to because of aggravation of her preexisting chemical sensitivity while employed by RS.
A couple of notes: In its opinion, the appeals court wrote that its research had revealed that several courts across the U.S. had also had difficulty with opinions expressed by Dr. Ziem, including courts in Georgia and Tennessee.
And Chriestenson left her job in December 1998. This case has been winding its way through the workers’ comp system and courts for almost 13 years.
(Chriestenson v. Candies, Court of Appeals of KS, No. 104,412, 9/9/2011)
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