A Bitter-Sweet Taste of Chemical Sensitivity

Thursday, September 22, 2011 | 0

We know that there are individuals with extreme sensitivity to chemicals. What we don't know, in many cases, is whether exposure to chemicals in the workplace produces a compensable incident under workers comp. As with work-related illnesses (e.g., cancer possibly caused by workplace carcinogens), it can be difficult to prove that the workplace exposure is the predominant cause of the disability.

For a little over a year in mid-1990s, Deborah Chriestenson worked for Russell Stover Candies in Iola, Kansas. She had been diagnosed with multiple chemical sensitivity in 1986. She worked as a plant nurse, safety coordinator, and workers compensation benefits coordinator. Her office was located across the hall from a laundry facility. Chriestensen contends that she could smell bleach on a regular basis in her office. She claimed to have suffered respiratory symptoms as well as increasing headaches as a result of this exposure.

Chriestenson also claims she was occasionally exposed to methyl bromide fumes emanating from a room where nuts were fumigated. In addition, she claims that she was exposed to fumes from pesticides, truck exhaust, paint, and anhydrous ammonia at various times during her employment at Russell Stover. [As for the future eating of chocolate nut clusters from Russell Stover or any other manufacturer, I leave it to the reader to perform his/her own risk analysis...]

Soon after her termination from the company, Chriestenson filed a workers comp claim. She received temporary total disability benefits. Her claim wended its way slowly through the Kansas system, until 2006, 11 years after she left the company, a split panel of comp judges awarded her permanent total disability (PTD) benefits.

There were two key elements supporting of Chriestenson's claim: her own testimony and that of an expert witness, Dr. Grace Ziem, who specializes in chemical sensitivity. (Dr. Ziem's website is full of red flags for toxic exposures.) Dr. Ziem's testimony was key: without her connecting Chriestensen's problems directly to the workplace, there would be no comp claim.

Evidence-Based Medicine

The Kansas Court of Appeals has reversed the decision to award Chriestenson PTD benefits. While they recognize Dr. Ziem's skills as a medical provider, they question her credentials to connect Chriestenson's problems to the workplace. For one thing, Chriestenson is a lifelong smoker; Dr. Ziem casually dismisses any connection between smoking and Chriestenson's respitory problems. In addition, Dr. Ziem did not bother to examine the medical records pertaining to treatment of Chriestenson in the days and months immediately following her filing of a comp claim. Finally, the Kansas court calls into question Dr. Ziem's methods, citing court rulings in two other cases where her testimony was rejected outright.

In Georgia:
Our research has revealed that several courts across the United States have also had difficulty with causation opinions expressed by Dr. Ziem in chemical sensitivity cases. In Mason v. Home Depot U.S.A., Inc., 283 Ga. 271, 658 S.E.2d 603 (2008), Dr. Ziem was not permitted to testify on causation in an civil lawsuit against a manufacturer and seller of a floor covering product. The Georgia Supreme Court upheld a trial court's determination that "Dr. Ziem's methods [are] based only on her own experience and opinions, without any support in published scientific journals or any reliable techniques for discerning the behaviors and effects of the chemicals contained" in the floor covering product. 283 Ga. at 279.

In Tennessee:
Likewise, in Wynacht v. Beckman Instruments, Inc., 113 F.Supp.2d 1205 (E.D. Tenn. 2000), the United States District Court for the Eastern District of Tennessee did not allow Dr. Ziem to offer an opinion on causation in a product liability case arising out of alleged exposure to chemicals in the workplace. Although the court found her qualified to diagnose medical conditions and treat patients, it found that "[t]he ability to diagnose medical conditions is not remotely the same . . . as the ability to deduce, delineate, and describe, in a scientifically reliable manner, the causes of those medical conditions."

Given her prior history, the lack of compelling evidence in the workplace exposure and her ongoing smoking, Chriestenson is unable to prove a definitive connection between workplace exposures and her current inability to work. It is a sad case, for sure, and it is entirely possible that work contributed in some degree to her current dilemma. But the burden of proof in this type of claim is difficult, often impossible, to achieve. For all her expertise in treating chemical sensitivity, Dr. Ziem has fallen short in her effort to establish herself as a credible expert witness at least in Georgia, Tennessee and Kansas.

WorkCompCentral subscribers may read the opinion by clicking the case title in the sidebar.

Jon Coppelman is a principal with Lynch Ryan & Associates, a Massachusetts-based employer consulting firm. This column was reprinted with his permission from the firm's blog, http://www.workerscompinsider.com.