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Case # G1201559
Date of Accident: 09/24/2014
District Office: Albany
Employer: Wappingers Central School Dist
Carrier: State Insurance Fund
Carrier ID No.: W204002
Carrier Case No.: 67660514
Date of Filing of Decision: 11/28/2016
Claimant's Attorney: Dall Vechia & Draft PC
Panel: Kenneth J. Munnelly

MANDATORY FULL BOARD REVIEW
FULL BOARD MEMORANDUM OF DECISION

The Full Board, at its meeting on October 18, 2016, considered the above captioned case for Mandatory Full Board Review of the Board Panel Memorandum of Decision filed on May 25, 2016.

ISSUE

The issue presented for Mandatory Full Board Review is whether the record supports the establishment of this case for a causally related sick building syndrome.

The Workers' Compensation Law Judge (WCLJ) disallowed the claim for the causally related sick building syndrome.

The Board Panel majority reversed the WCLJ's decision and established the claim for causally related sick building syndrome with a date of accident of September 24, 2014.

On June 24, 2016, the carrier filed a request for Mandatory Full Board Review asserting that the claimant has not met her burden of proof to establish causal relationship in this claim.

In her rebuttal, claimant asks that the decision of the Board Panel majority be affirmed.

Upon review, the Full Board votes to adopt the following findings and conclusions.

FACTS

This is a controverted claim for sick building syndrome resulting from exposure to allergens in the work place.

The claimant submitted four medical records into evidence before the record was closed. The first record was Dr. Rubinstein's December 8, 2014, narrative, which reports that the claimant has been under his care for many years for recurrent episodes of respiratory symptoms including sinus infections that are related to sick building syndrome. Dr. Rubinstein advised the claimant to relocate to a different building. The second medical record is a handwritten note on a prescription pad from Dr. Mallick, which is dated March 5, 2015. This note indicates that the claimant suffers from sick building syndrome, and it notes that the claimant does not have symptoms when she is outside her work environment. The third medical record is a narrative report prepared by Dr. Mallick, and it is dated April 6, 2015. This report indicates that the claimant has been treated by the doctor for bronchospasms and skin out breakages from sick building syndrome causally related to her workplace. The doctor notes that the symptoms resolve when she leaves her workplace. The fourth medical report submitted into evidence is Dr. Rubinstein's November 24, 2014, narrative report, which noted that the claimant has had a new onset of sinus pain and dizziness that is suspected to be caused by mold in the school she works in.

The record contains the investigation report dated December 29, 2014, conducted by the NYS Department of Labor Public Employee Safety and Health (PESH) Bureau regarding complaints about the air quality in the building where claimant worked. The report indicated that there was no visible mold, but they did not look behind the walls or in the HVAC ducts. The air quality tests were all negative, but the carbon dioxide (CO2) levels were high, which indicates poor ventilation. The ultimate outcome of the investigation was that the complaint was not sustained. The report states that PESH and OSHA permissible exposure limits are designed to measure hazardous levels in industrial environments and there are not separate enforceable PESH standards for office environments. The report also notes that PESH and OSHA "have no standards for general airflow, office ventilation and/or air circulation, temperature, relative humidity, mold, or indoor air quality."

The claimant testified at a hearing on June 11, 2015, that she was employed by the school district for thirteen years as a school counsellor. Prior to the 2014-15 school year, the claimant worked in a different building than the one involved in this claim. The claimant testified that she first noticed having symptoms a few weeks into the 2014-15 school year. The symptoms progressed into vertigo, light-headiness, nasal burning, itching in the eyes, allergy symptoms and sore throat. The claimant first told her immediate supervisor about her symptoms on September 24, 2014, and then told the school's assistant principal on October 6, 2014. The claimant described her workplace as a rather old building, and her office had ceiling tiles with water damage. The closets had ceiling tiles that were peeling. The air vents looked dirty, and there was dust in the duct work. The air in the office felt heavy. The claimant testified that the file room smelled like mold. The claimant testified co-workers who worked in her office suite had symptoms too.

The claimant testified that she first treated with Dr. Mallick, who diagnosed her with two separate ear infections, which did not clear up with antibiotics, and a sinus infection. The claimant then saw her ENT physician, Dr. Rubinstein, who she had been treating with for a few years. Dr. Rubinstein previously performed sinus surgery on claimant, prescribed a steroid nasal spray and provided allergy shots on a bi-weekly basis. Both these doctors told her to work in a different building. She had symptoms no matter where she worked in the building. She had one episode in the school's social worker's office wherein she became dizzy, had a headache, and a severe burning sensation in her sinus. The last day the claimant worked was the day after a five day Thanksgiving break. She had no symptoms while she was away from the school for five days, but she had them once she returned to the building. She was dizzy and had headaches on that first day back.

On cross-examination, the claimant admitted that her sinus surgery was on October of 2013, and was aimed at addressing her allergies. The claimant also admitted she has bi-weekly allergy shots. The claimant is allergic to trees, grass, dust mites, and mold. When questioned by the WCLJ, the claimant confirmed that she did not have symptoms when she worked in the employer's other buildings.

The employer's principal testified on June 11, 2015, that she has worked in the building since 2006 and was the school's vice principal on October 6, 2014. The principal testified that 157 faculty and staff work in the building, which has an enrollment of approximately 2,200 students. The principal confirmed that all the air quality tests were negative. On cross-examination, the principal admitted that the PESH report indicated that four employees made complaints, and they all worked in the same general area of the building as the claimant. She was unsure if the investigators tested for mold. The principal testified that no students reported getting sick, but the office suite where claimant worked does not hold classes.

The carrier submitted no medical evidence to contradict the opinions of Dr. Mallick or Dr. Rubinstein on the issue of causal relationship. The carrier also failed to cross-examine the treating doctors.

In a reserved decision filed July 21, 2015, the WCLJ disallowed the claim, finding the claimant's condition, which was allegedly caused by the environment in which she works, was not an occupational disease within the meaning of the Workers' Compensation Law and that there was insufficient medical evidence to find that she suffered an accidental injury.

LEGAL ANALYSIS

"To establish an accidental work-related condition that developed over time, rather than from a sudden event, claimant was required to demonstrate by competent medical evidence that his condition resulted from unusual environmental conditions or events assignable to something extraordinary at his workplace" (Matter of Mazayoff v A.C.V.L. Cos., Inc., 53 AD3d 890 [2008] [internal quotation marks and citations omitted]).

For "an accidental injury [that] accrues gradually over time as the result of repetitive trauma or exposure, the Board must select the appropriate date of accident (see Matter of NYC Dept of Citywide Admin Svc, 2006 NY Work Comp 00535216)" (Matter of Par Plumbing, 2010 NY Wrk Comp 40610380). "[T]he concept of time-definiteness required of an accident can be thought of as applying to either the cause or the result . . . and it is not decisive that a claimant is unable to pinpoint the exact date on which the incident occurred" (Matter of Middleton v Coxsackie Correctional Facility, 38 NY2d 130 [1975] [internal citations omitted]). "The Board is not obligated to set the date of accident as the date of last exposure, and may instead opt to set the accident date as the date claimant first experienced symptoms, sought treatment, or sustained lost time from work ([NYC Dept of Citywide Admin Svc, 2006 NY Work Comp 00535216]; see also Matter of Fiserv Inc., [2005] NY Work Comp 80310515)" (Par Plumbing, 2010 NY Wrk Comp 40610380).

"[A] claimant's failure to identify the specific allergen or contaminant responsible for his or her ailments is [not] fatal to the underlying claim" (Matter of Barcomb v Delphi Automotive, 42 AD3d 809 [2007]).

OCM Boces Central (2013 NY Work Comp G0379334), cited by the carrier, involves a controverted claim for an aggravation of the claimant's pre-existing asthma as a result to an exposure to something in her workplace. The Board Panel in that case rescinded the WCLJ's establishment of that claim because there was "insufficient credible evidence of a causal connection between an unusual environmental condition in the claimant's workplace and the aggravation of her preexisting asthma." The carrier in that case, unlike the current one, actually submitted medical evidence to contest the claimant's doctor's opinion on causal relationship.

The Board Panel in OCM Boces Central specifically stated that the flaw in the claimant's case is that the medical evidence was not strong enough to support causal relationship in contrast to the carrier's medical examiner's opinion that the aggravation of the asthma was not causally related.

In this case, claimant testified that her office had ceiling tiles with water damage, the closets had ceiling tiles that were peeling, the air vents looked dirty, there was dust in duct work and the file room smelled like mold. Her symptoms did not begin until she began working in that building and abated when she was away from work. The record also reflects that several other employees who worked in the same general vicinity as the claimant also complained of similar symptoms. Moreover, the medical evidence finds that claimant's condition was causally related to work exposure based on the presence of claimant's symptoms only when exposed to the work environment, and the carrier has failed to produce any medical evidence to contradict the claimant's medical evidence that the sick building syndrome is causally related.

Therefore, the Full Board finds that the preponderance of the evidence supports establishing the claim for causally related sick building syndrome with a date of accident of September 24, 2014.

CONCLUSION

ACCORDINGLY, the WCLJ's reserved decision filed July 21, 2015, is REVERSED and this claim is established for sick building syndrome with a date of accident September 24, 2014. No further action is planned by the Board at this time.