The Full Board, at its meeting held on April 16, 2013, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed July 12, 2012.
The issue presented for Mandatory Full Board Review is whether the claimant's lung disease is causally related to her employment.
The Workers' Compensation Law Judge (WCLJ) established the claim, finding that the claimant's hypersensitivity pneumonitis was causally related to her work environment.
The Board Panel majority reversed and disallowed the claim, crediting the testimony of the carrier's consultant and finding that the claimant's condition was consistent with smoking related emphysema.
The dissenting Board Panel member credited the claimant's allergist and determined that the claimant's hypersensitivity pneumonitis was casually related to her work environment such that the claim should be established.
In her application for Mandatory Full Board Review, the claimant argues that the condition of her work environment, the results of her medical tests, and the credible testimony of her allergist support an establishment of the claim.
In rebuttal, the carrier asserts that this claim should be disallowed, as the environmental quality reports of the employer's premises, along with the credible testimony of the medical experts, support the conclusion that the claimant's work environment did not contribute to her lung condition.
Upon review, the Full Board votes to adopt the following findings and conclusions.
On November 23, 2010, the claimant, a 45 year old accounts payable coordinator, filed a C-3 (Employee Claim) in which she reported breathing problems, emphysema, coughing, and dyspnea, as a result of exposure to dust and particles while working for Yonkers Raceway/Empire City Gaming.
In a February 14, 2011, medical report, Dr. Serdakowska, the claimant's allergist, diagnosed the claimant with "Hypersensitivity Pneumonitis (also called Extrinsic Allergic Alveolitis EAA) due to exposure to moldy hay (Farmers Lung) at place of work in a barn housing horses and hay prior to conversion into an office."
The carrier filed a C-7 (Notice that Right to Compensation is Controverted) on April 14, 2011, in which it raised the issues of accident, occupational disease, and causal relationship.
In an IME-4 (Practitioner's Report of Independent Medical Examination) dated June 28, 2011, Dr. Friedman, the carrier's consulting pulmonologist, opined that an examination of the claimant "suggests the possibility of hypersensitivity pneumonitis secondary to mold exposure," but stated that review of an x-ray or CAT scan would be necessary to confirm a pneumonitis. Dr. Friedman noted that to "confirm exposure, an environmental evaluation should be performed of the [claimant's work] area to determine whether or not molds are found." In an August 15, 2011, addendum report, Dr. Friedman stated that a review of the claimant's CAT scan, x-rays, and pulmonary function tests, along with a June 21, 2011, environmental quality report of the employer's premises, revealed no evidence that the claimant's "respiratory insufficiency, which was due to emphysema, has any relationship to environmental exposure" at her place of employment. The doctor noted that the claimant had "normal levels of alpha 1 antitrypsin; therefore, there was no congenital reason for her to develop premature emphysema."
At a hearing held on July 27, 2011, the claimant testified that she began working at Yonkers Raceway in September 2008. Prior to working for the employer, she never had any respiratory problems aside from "common allergies." The claimant explained that she worked in an administrative building that was over 50 years old and located approximately 10 feet from paddocks in which horses were kept. The claimant experienced progressively worse shortness of breath and persistent coughing attacks until she was diagnosed with a respiratory condition by Drs. Weinstein and Paul, her pulmonologists, in November 2010. Upon the recommendation of a third pulmonologist in Baltimore, Maryland, the claimant began treatment with an allergist, Dr. Serdakowska, who diagnosed her with pneumonitis ("Farmer's Lung"). She explained that the condition was caused by exposure to a specific type of mold that grows on hay. As of November 2010, the claimant consistently used an oxygen tank. She also treated with inhalers and was currently on a waiting list with Columbia Hospital for a double lung transplant. The claimant was not aware if she had ever been diagnosed with chronic obstructive pulmonary disease (COPD).
The claimant further testified that employees "couldn't open the windows" of the building in which she worked, and that the carpeted office "always smelled musty." She stated that the ceilings were stained, "spotted, and leaked." The claimant explained that upon arriving to work on Monday morning, "the desks were full of, like, black soot." In a conference room adjacent to her shared office space, "the rug was pulled up from previous floods...there was mold under there, so they pulled the rug up." Occasionally, if the office was uncomfortably warm, the door would be left open. Following complaints to the claimant's supervisor, the claimant noticed "an air-conditioner filter" had been installed on one of the three vents in the office. The claimant testified that the basement of her home had flooded on one occasion in 2009, but in December 2010, her house tested negative for the presence of mold.
Upon cross-examination, the claimant testified that she had smoked approximately half a pack of cigarettes per day, "on and off," for approximately 20 years. The claimant explained that she was first prescribed an Albuterol inhaler in October 2010, as a result of an emergency room visit due to a persistent cough. The claimant stated that she had been living in her current home for approximately four years. The claimant testified that she had never been exposed to horses or farms prior to working at Yonkers Raceway. She would occasionally visit the horse stables in order to deliver checks, but she did not regularly interact with the horses while working for the employer. The claimant stopped working on November 17, 2010, and subsequently applied for short- and long-term disability benefits. Upon re-direct, the claimant testified that a coworker had recently informed her that she was also out of work due to a lung condition.
The employer's Environmental Regulatory Affairs Manager also testified at the July 27, 2011, hearing. The manager testified that she had served in her current position since August 2010, and had previously served as Compliance Manager since October 2006. The manager testified that testing was performed at the claimant's place of employment in December 2010, as a result of an inquiry from the Occupational Safety and Health Administration (OSHA), based upon an employee complaint of "flaking" from the building's vents. It was determined that the flakes were "paint chips coming from old grates that covered the air-conditioning ducts." The ducts were then cleaned, the filters replaced, and new grate covers installed. In May 2011, another OSHA inquiry prompted the employer to test for dust, mold, and oxygen levels in the building. The results of the tests were still pending at the time of the hearing, but a preliminary assessment indicated that the levels were all within OSHA standards. The manager testified that the building in which the claimant worked was approximately 60 yards from where horses were kept. The building had been used as a cafeteria and recreation hall for employees who worked with horses on the race track "many years" prior to serving as an office space.
The employer's Director of Human Resources also testified at the July 27, 2011, hearing. The director testified that she had served as director for approximately eight months, and had previously worked as Human Resources Manager since April 2006. She stated that the claimant had applied for long-term disability benefits on April 4, 2011, and notified the employer's disability insurance carrier that her condition was not work related. The director testified that she is allergic to mold and other substances, but never experienced any symptoms while at work.
Present in the record is an Environmental Consulting Report in which Quality Environmental Solutions & Technologies, Inc. indicated that air sample assessments were performed in the Yonkers Raceway "REC Building" on July 21, 2011. The report states:
Total fungal spore levels for the interior air samples did not appear to be elevated as compared to the outdoor samples and no moisture indicator species of fungi were detected on the interior samples. Total and respirable dust levels were all below detectable limits for the analytical methods utilized. The visual inspection did not identify any visible microbial growth or indications (water staining, discoloration, microbial odors) of conditions that may be conducive to microbial growth. Analytical results for the dust characterization identified what appears to be an elevation in the amount of copier/printer toner found in tape lifts as compared to other similar occupancies.
At a hearing held on October 31, 2011, the employer's Director of Finances testified that the vents in the building in which the claimant worked were cleaned in November 2010, as a result of employee complaints of the presence of black particles. The director stated that ventilation filters were changed every six months. She testified that rainwater entered the conference room through an air conditioner and seeped in through the base of the front doors of the office, such that the carpeting became damp. The director stated that housekeeping was called to vacuum and shampoo the carpets when they were damp, and the conference room carpeting was replaced in 2009. At the conclusion of the hearing, the WCLJ directed the parties to submit depositions of Drs. Friedman, Serdakowska, and Paul.
Dr. Friedman testified at a deposition held on December 28, 2011. The doctor testified that his examination of the claimant, along with a review of her medical records, revealed a respiratory insufficiency and a presence of Aspergillus fumigatus in her bloodstream. Dr. Friedman explained that the claimant had been exposed to Aspergillus fumigatus fungi at some point, which caused her system to produce an "IgE that was positive for her exposure." The doctor stated that such fungus is one of the antigens that can cause hypersensitivity pneumonitis, which is a "development of pulmonary fibrosis" resulting in respiratory insufficiency and recurrent episodes of pneumonia. However, Dr. Friedman stated that review of the claimant's x-rays and CAT scan reveal that she does not have hypersensitivity pneumonitis, but centrilobular emphysema caused by smoking. The doctor explained that none of the claimant's "bullae contain fluid that could be associated with an acute fungal infection," such as hypersensitivity pneumonitis.
Upon cross-examination, Dr. Freidman testified that it was not unusual for someone of the claimant's age to develop advanced emphysema, based upon a genetic predisposition. The doctor stated that Aspergillus fumigatus fungi may be found in moldy hay, a ventilation air-conditioning system with contaminated water, or a damp basement.
Dr. Paul, the claimant's pulmonologist, testified at a deposition held on January 3, 2012. Dr. Paul testified that she began treating the claimant on November 19, 2010, "as a second opinion." The doctor opined that the claimant has "severe COPD," based upon her review of the claimant's pulmonary function tests and CAT scan. Dr. Paul explained that COPD is "multi-factorial" and can occur "at a genetic level or in environmental deficiency or can be an exacerbation that can happen through any triggers in the environment." The doctor testified that she was unsure of the cause of the claimant's COPD.
Dr. Serdakowska testified at a deposition held on January 12, 2012. Dr. Serdakowska testified that she began treating the claimant on February 14, 2011. The doctor conceded that she had not reviewed the claimant's prior medical records, as her treatment was limited to "sensitivity or allergy and immunology problems." Dr. Serdakowska stated that the claimant had advised her that her symptoms improved on the weekends and when she was outdoors. The doctor testified that the claimant also advised her that she worked in an old building "converted from a horse barn into office space," which was not fully renovated. Dr. Serdakowska stated that the claimant tested negative for congenital lung disorder, but that she had tested positive for the presence of IgE. The doctor explained that the presence of IgE in the claimant's blood evidenced prior exposure to Aspergillus, which results in enlarged alveoli and the formation of granules. If "the patient is not removed from the environment" with the fungus, "these particular complexes start destroying the alveoli and the alveoli break and form like bullous, like balloons." Dr. Serdakowska stated that "emphysema is peripheral," such that it develops over a 40 or 50 year period, but immunological complexes "destroy the lungs" within a 2 year period. The doctor further explained that emphysema is a "generic word for expansion," and although the claimant's CAT scan revealed expansion of the alveoli inside the lung, it would not be possible to determine the cause based upon this test alone. Dr. Serdakowska opined that the claimant's x-rays, CAT scan, blood tests, and symptoms indicate "a direct causal relationship" to an environmental cause. The doctor stated that smoking would not play a role in such an immunological response and that she "absolutely disagree[d]" with the diagnosis of emphysema.
Upon cross-examination, Dr. Serdakowska testified that she would not defer to Dr. Paul with respect to the causes or diagnosis of an immunological situation, but that she would so defer with respect to pulmonological treatment. When asked if the claimant's x-rays or CAT scan revealed hypersensitivity pneumonitis, the doctor replied, "No, and it never will." With respect to the claimant's office building, Dr. Serdakowska testified that imperceptible particles of hay could still be present, as mold is "one micron in size." The doctor opined that the claimant did not have COPD "because of the precipitating antibodies" and elevated antigens in the claimant's blood. The doctor stated that weight loss or loss of appetite was a symptom of hypersensitivity pneumonitis, but that she was unaware if the claimant had experienced either. Upon re-direct, Dr. Serdakowska testified that flooding causes toxic mold, rather than allergenic mold. Upon re-cross, the doctor stated that the treatment for emphysema was not a lung transplant, but an extraction of a portion of the lung.
At a hearing held on January 31, 2012, the WCLJ found that although "the claimant may have had a predisposition" and smoked for a number of years, she developed a severe lung disease due to her work environment. The WCLJ set the date of accident as November 18, 2010. The resulting decision was filed on February 3, 2012, and states: "This was not 'occupational' in the sense of work dealing directly with molds or dust, but rather would be an accident under the Workers' Compensation Law."
It is "axiomatic that a claimant bears the burden of establishing a causal relationship between his or her employment and a disability by the proffer of competent medical evidence" (Matter of Williams v Colgate Univ., 54 AD3d 1121  [citations omitted]). Such medical opinions need not be expressed with absolute or reasonable certainty (Matter of Norton v North Syracuse Cent. School Dist., 59 AD3d 890 ); a "medical opinion, with a supporting medical hypothesis, is sufficient to support the Board's finding of a causal relationship" (Van Patten v Quandt's Wholesale Distribs., 198 AD2d 539 ). In Matter of Barcomb v Delphi Auto., 42 AD3d 809 (2007), the Court reiterated the proposition that a "claimant's failure to identify the specific allergen or contaminant responsible for his or her ailments" is not fatal to a claim for compensation (see also Matter of Lopez v Superflex, Ltd., 31 AD3d 914 ). In Matter of Glens Falls Hospital, 2011 NY Wrk Comp G0310398, the Board established a claim for an accidental injury related to environmental air exposures, holding that "the identification or inability to identify the particular agent causing the claimant's reaction is only one factor to be considered" in such cases.
The Full Board finds, upon review of the evidence of record, that the claimant sustained an accidental injury due to exposure at her workplace. The claimant testified that prior to working for the employer herein, she never experienced any respiratory problems aside from "common allergies." The claimant explained that while working for the employer, she began to suffer from shortness of breath and persistent coughing attacks. These conditions quickly progressed over a two year period and the claimant is currently on a waiting list to receive a double lung transplant. The claimant explained that the windows in the office building remained closed, black flakes were often found on workspace surfaces, the ceilings evidenced water damage, and a rug was replaced due to flooding damage. Her testimony was corroborated by the employer's Environmental Regulatory Affairs Manager, who testified that paint chips from the grates of the building's vents were blown into the office. The manager explained that the vents were cleaned and the grates and filters replaced after receipt of an OSHA complaint in December 2010. The manager testified that an OSHA inquiry in May 2011 had prompted the employer to test the dust, mold, and oxygen levels in the building. The employer's Director of Finances also testified that carpeting in a conference room was replaced in 2009, due to flooding, and that rainwater regularly entered the building through the front doors and from an air conditioner. Although the claimant conceded that her basement had flooded on one occasion in 2009, she testified that her home tested negative for the presence of mold in December 2010. Furthermore, according to the testimony of the claimant and the manager, the claimant's office building was located between 3 and 60 yards from a paddock in which horses were kept, and the claimant explained that she had to occasionally visit the paddock to deliver checks. The manager also testified that the office building had previously been used by employees who worked directly with horses.
Although Dr. Friedman opined that the claimant had centrilobular emphysema caused by smoking, he conceded that a blood test revealed that the claimant had been exposed to Aspergillus fumigatus, a fungus that can cause hypersensitivity pneumonitis. The doctor explained that such fungus can be found in moldy hay, damp basements, or contaminated air conditioning vents. Although Dr. Friedman's review of the claimant's x-rays and CAT scan revealed that she had emphysema, rather than an acute fungal infection, Dr. Serdakowska, the claimant's allergist, explained that both emphysema and hypersensitivity pneumonitis cause an "expansion" of the alveoli inside the lung. Dr. Serdakowska also testified that an immunological complex, which was not caused by smoking, could destroy a person's lungs within a few years, while emphysema takes many decades to develop and progress, such that the claimant, an "on and off" smoker for 20 years, could not have acquired the disease so quickly. Dr. Friedman testified that a genetic predisposition to emphysema could account for the condition in someone of the claimant's age; however, his August 15, 2011, addendum report noted that a blood test revealed that "there was no congenital reason for her to develop premature emphysema."
Dr. Paul, the claimant's pulmonologist, diagnosed the claimant with severe COPD, a "multi-factorial" disease that can be caused by environmental triggers. Dr. Paul stated that she could not determine the cause of the claimant's condition. Dr. Serdakowska testified that she would not defer to Dr. Paul with respect to the cause of the claimant's disease, as a pulmonologist could determine appropriate treatment, but not the reason for the claimant's symptoms. Dr. Serdakowska also explained that emphysema was treated with an extraction procedure, rather than a lung transplant.
Furthermore, Dr. Serdakowska testified that she reviewed a CAT scan, x-rays, and blood tests performed on the claimant. As noted above, the claimant's office was previously used by employees who worked directly with horses and the building was located near horse paddocks, to which the claimant had occasionally ventured in the course of her employment. Dr. Serdakowska explained that mold was "one micron in size," such that it could survive on imperceptible particles of hay, and both she and Dr. Friedman testified that the fungus that causes hypersensitivity pneumonitis can also exist in contaminated air conditioning vents. Dr. Serdakowska also testified that the claimant advised her that her symptoms subsided on the weekends or when she was outdoors.
Finally, the environmental testing performed on July 21, 2011, which determined that no species of fungi were detected in the claimant's office building, is not determinative. As previously discussed, a claim is not defeated because of a lack of medical certainty or a failure to identify a specific allergen or contaminant (Van Patten, 198 AD2d 539 ; Lopez, 31 AD3d 914 ). Moreover, the testing was performed approximately three years after the claimant began working for the employer, approximately eight months after she was diagnosed with a respiratory condition, and subsequent to multiple alterations to her workplace, including new carpet installation, duct cleaning, and replacement of the air conditioning filters.
Based upon the above, the Full Board finds that the claimant's lung disease is causally related to her employment.
Accordingly, the WCLJ decision filed on February 3, 2012, is AFFIRMED. No further action is planned by the Board at this time.