RISKVUE ARCHIVE | INDUSTRY WATCH > WORKERS' COMP

CAAA: Mold, the Next Big Work Comp Wave

The California Applicants Attorneys Association (CAAA) told over 1000 people at its annual Winter Convention in San Diego, CA this past weekend, that toxic mold represents a “huge problem” and will be second only to, or may even exceed, asbestos for long term financial, legal, and health considerations for working America.

Held at the famous Hotel Del Coronado, attorney Elliot Berkowitz and Bruce Gillis, MD, said that there are over 60,000 known variations of mold, and that some strains, when agitated by the environment, give off a clear, odorless, toxic gas that can cause allergic reactions in persons susceptible to the gas, and in some cases can seriously aggravate a pre-existing pulmonary dysfunction such as asthma for what would ultimately rate in the CA system as a 100% disability.

Berkowitz told the crowd of attorneys, doctors, claims examiners, and others that the liability aspects of mold litigation are truly frightening, and not just for the claim defendants, because of the complexity of mold science. Failure to completely follow through on an investigation, and failure to fully document all aspects of the mold investigation and follow-on litigation, could open the practicing professional to malpractice liability. Berkowitz warned attorneys to ensure that their E&O policies were up to date, and to make sure that they cooperate with civil mold specialists to minimize the risk.

However, on the other side of the coin, Berkowitz noted that proving employment causation of mold exposure is not especially difficult if properly investigated and documented since there are no special thresholds of exposure to overcome (as in psychiatric claims).

Dr. Gillis said that even though molds have been around us since the beginning of time, recognition of the hazards of mold exposure where not completely appreciated until about 20 years ago, when the discovery of toxic gases from various strains were discovered. What used to be thought of as “sick building syndrome” in the seventies and eighties is more attributable, he said, to toxic mold exposure.

Mold grows wherever there has been standing water, such as leaky buildings, and lack of an opportunity for that water to properly dissipate, as in today’s modern sealed office buildings.

The signs are all around said Gillis, pointing out that water stained ceiling tiles, wallboard, and cabinets are only the first signs that there is a potential mold issue. Gillis claims to have found a toxic mold in a litigated case in only 20 minutes after two teams of mold experts reported no growths, thus proving causation.

Where toxic mold is found, all materials must be destroyed, said Gillis, from the building to the clothing, because there is no remediation that works, and no encapsulation will contain the deadly spores and toxic gases they give off.

Both Berkowitz and Gillis predicted that workers’ compensation mold litigation will be the next big wave, with minimal permanent disability awards of 40%, and that third party litigation will also rage into the future because of all of the potential parties to litigation, from contractors and building owners, to businesses and insurance companies.

Gillis himself has already been through mold litigation with his personal residence, and how has a house impervious to mold, he says, made out of only glass and steel, on which mold cannot grow. 

ABOUT THE AUTHOR

Source: WCC exclusive. Reprinted with permission from www.workcompcentral.com

riskVue | The webzine for risk management profesionals
February 2003