FRANK CASTA, Applicant
K MARK CORP, Employer
ACE AMERICAN INS CO, Insurer
The applicant submitted a petition for commission review alleging error in the administrative law judge's Findings and Order issued in this matter on March 14, 2008. K-Mart Corporation and Ace American Insurance Company (respondents) submitted an answer to the petition and briefs were submitted by the parties. At issue is whether or not the applicant contracted sarcoidosis arising out of and in the course of his employment with the employer, and if so, what are the nature and extent of disability and liability for medical expense.
The commission has carefully reviewed the entire record in this matter and hereby reverses the administrative law judge's Findings and Order. The commission makes the following:
The applicant, whose birth date is May 1, 1952, began his employment as operations manager for the employer on May 7, 2000, but was transferred to the store in question on August 1, 2000, where he became store manager. He worked 50-60 hours per week, almost exclusively inside the store. The store had many problems with roof leaks and water intrusion, with mold and mildew visible on the ceiling and flooring tiles. There was also a musty odor in the store, which was closed to customers in April 2006, and then demolished to make way for a freeway. The applicant's last workday was April 24, 2006.
In the early fall of 2005, the applicant began to experience respiratory symptoms and eventually was diagnosed with sarcoidosis in his lungs. Sarcoidosis is generally considered to be an immune system disease.(1) When it appears in the lungs it forms granulomas in the alveoli or bronchioles. There is no medical consensus as to a specific cause, and it has been stated:
The heterogeneous nature of the disease has led researchers to believe that sarcoidosis has more than one etiology, which may in turn lead to different patterns of disease.(2)
The applicant asserts that the mold and mildew exposure at the employer's store caused the onset of the disease in his lungs. He has been successfully treated for the disease and its progress has been arrested.
The applicant has been treated by a number of physicians for his sarcoidosis. One of these treating physicians, Dr. John M. Williams, completed a WKC-16-B dated December 20, 2006, in which he found occupational causation and referred to his office note of May 1, 2006. In that note, Dr. Williams recorded that the applicant told him a co-worker with an office a few feet from his own office had also been diagnosed with sarcoidosis. In a letter dated January 18, 2008, Dr. Williams indicated he had reviewed medical articles indicating that water-damaged buildings can be associated with respiratory diseases such as sarcoidosis. Dr. Williams concluded that based on his review of these articles, and the fact that a co-worker had also contracted the disease, it was his opinion to a reasonable degree of medical probability that the applicant contracted sarcoidosis due to exposure to mold and mildew in the employer's store.
Respondents obtained opinions from Dr. James W. Sehloff and Dr. Om P. Sharma. In his opinion dated March 16, 2007, Dr. Sehloff wrote:
"From my review of the literature, the etiology and the associations for causation of sarcoidosis remain unknown, and no specific exposure has been definitely identified with the development of sarcoidosis. It is the feeling, although not proven, that a combination of a genetic predisposition and exposure to either an infectious agent or environmental agent may contribute to the development of sarcoidosis. However, it is my opinion that this remains a hypothesis and has not been definitively proven. The fact that a coworker was also diagnosed with sarcoidosis is interesting but again can be a chance association and not causally associated. It is my opinion that there is no proof that his work exposure caused his sarcoidosis or aggravated sarcoidosis. There is also no proof that the work exposure aggravated or accelerated the sarcoidosis condition."
Dr. Sharma's opinion is dated February 7, 2008. He writes that he is an internationally-known expert on sarcoidosis, that he has a sarcoidosis clinic in Los Angeles, and that he is president of the World Association of Sarcoidosis and Other Granulomatous Diseases. Dr. Sharma wrote:
"Examination of the tissue specimens obtained by biopsy of the involved tissue makes diagnosis of sarcoidosis. These tissue samples are then examined for bacteria, fungi and molds. No bacteria, fungus or mold ever has been recovered in sarcoidosis patients.
The cause of sarcoidosis is not known. For the last fifty years we have attempted to implicate tuberculosis, fungal diseases, molds, viruses, organic and nonorganic antigens, smoke, molds and chemicals.
To a reasonable degree of medical probability, Frank Casta's work exposure at K-Mart between May 7, 2001, and April 26, 2006, did not directly or indirectly cause him to develop sarcoidosis. The cause of sarcoidosis is not known. There is no experimental animal model of sarcoidosis. We cannot produce the disease in laboratory because we have no knowledge of its cause. In other diseases, for example tuberculosis, which is caused by tubercle bacterium, we can produce disease in animals in the laboratory and we can cure the disease. Sarcoidosis, on the other hand, has no specific known cause and no curative treatment.
. . . The authors concluded that the study contributed to the growing literature that water damaged buildings can be associated with onset and exacerbation of respiratory conditions including asthma, hypersensitivity pneumonitis and sarcoidosis. The authors did not conclude that molds or environmental agents caused the multi-system disease sarcoidosis, because sarcoidosis remains a disease of no known cause. (Emphasis in original).
Sarcoidosis was the new occurrence and developed spontaneously. It was not related to any of Mr. Casta's pre-existing conditions. His symptoms are related to sleep apnea syndrome, obesity, diabetes mellitus and cardiomyopathy.
Mr. Casta's sarcoidosis appeared without any cause. It was timely diagnosed and treated appropriately. He, however, should follow his doctor's advice regarding future management."
A physician from the Wisconsin Bureau of Environmental and Occupational Health, Dr. Arthur Wendel, examined the building on July 27, 2006, after the Bureau received a report that three people who worked there (including the applicant) had contracted sarcoidosis. His report also states that the cause of sarcoidosis is unknown, and notes that a common hypothesis is that it is triggered by one or more environmental factors in genetically susceptible individuals. The report notes that clustering of sarcoidosis cases is unusual, but has been described in medical literature. The report also notes that there were extensive water leaks in the employer's building's roof, that samples from the roof grew gram negative bacteria, that the interiors of the air ducts were dirty, and that there was a musty odor in the building. Dr. Wendel concluded that he could not identify a cause of sarcoidosis in the building, and that his investigation was unable to provide an explanation for the three cases of the disease. However, Dr. Wendel also recommended that workers involved in the demolition of the building wear properly-fitted, personal protective equipment, and that the components of the building's HVAC system not be reused in another building.
Both parties have cited Seymour v. Industrial Commission, 25 Wis. 2d 482, 131 N.W.2d 323 (1964), in which the court affirmed the commission's finding that a fall had accelerated the growth of a cancerous tumor located on the worker's spine. The court noted that such acceleration was not unheard of in the medical literature, and that the opinions of three respected physicians supported the worker's case. The applicant emphasizes the court's statement that it could not reject these physicians' opinions as "incredible because contrary to scientific facts or knowledge." Id. at 492. Respondents emphasize the court's statement:
"When scientific or medical theories or explanations have not crossed the line and become an accepted medical fact, opinions based thereon are no stronger or convincing than the theories. While this court has gone a long way in admitting expert testimony deduced from well-recognized scientific and medical principles or discoveries, nevertheless, the facts from which the opinion is made must be sufficiently established to have gained general acceptance in the particular medical field in which they belong. Otherwise, the opinion is based not on facts but conjecture." Id. at 487.
The medical literature and opinions submitted into the record of this proceeding are in general agreement that while no single, specific cause for sarcoidosis has been identified, exposure to water-damaged buildings, and to mold and mildew, have been associated with contraction of the disease. Also noted in the medical literature and in Dr. Williams' and even Dr. Sehloff's opinions, is the fact that environmental exposure to microbial agents is suspected as being a contributory cause of sarcoidosis. Dr. Sharma emphatically states that no study has so far identified or established a specific cause of sarcoidosis, and that the disease remains of unknown cause. However, even though Dr. Sharma emphasizes that a specific cause for the disease is unknown, he summarily opines that the applicant's sarcoidosis "developed spontaneously," and that it "appeared without any cause." The commission is left to question how Dr. Sharma, who is unwilling to commit to any medical theory of causation for sarcoidosis, can so unreservedly opine that the applicant's sarcoidosis developed without any cause. Dr. Sharma's professed lack of scientific knowledge regarding the cause of the disease should logically have led him to conclude that he could not say what caused the onset of the applicant's sarcoidosis, rather than declaratively stating that it had no cause, and that its cause had no connection to the applicant's work exposure. The commission does not find it credible that sarcoidosis has no cause, or that the applicant's sarcoidosis "appeared without cause."
The commission is required to review the evidence submitted, and based on that review, to draw an inference regarding the cause of the applicant's sarcoidosis. The fact that there is controversy regarding the cause of the disease, does not mean that the commission must accept the opinion that there is no cause for it. Credible, relevant, and probative evidence of record, in the form of Dr. Williams' medical opinion and the medical literature submitted, links the type of environmental conditions to which the applicant was exposed in the employer's store to contraction of the disease. While this evidence does not constitute unanimous scientific consensus regarding the cause of sarcoidosis, the commission finds it scientifically probative and credible.
Additionally, in his clinic note dated May 1, 2006, and in his letter opinion dated January 18, 2006, Dr. Williams cited the fact that the applicant's secretary had contacted sarcoidosis in the same general time frame as the applicant. It is unclear whether or not Dr. Williams also knew that a second co-worker had contracted the disease. Nevertheless, the commission infers that Dr. Williams' opinion was based in part on the fact that the applicant was not the only worker in the employer's building to contract sarcoidosis. The commission also finds significance in this objective fact. At the hearing held on April 4, 2009, respondents' counsel argued that these two co-worker cases of sarcoidosis merely help demonstrate association between the employer's store environment and the disease, and that such association is not sufficient or relevant in determining causation. The commission rejects this argument as contrary to scientific reasoning, which for purposes of determining disease etiology, routinely looks to associate environmental factors with the clustering of a disease outbreak. For example, see the medical literature submitted at Applicant's Exhibit D, as well as the third paragraph of Dr. Wendel's report submitted at Applicant's Exhibit F. The scientific evidence submitted indicates that it is highly probable that an environmental element contributes to the cause of sarcoidosis. Furthermore, although this particular environmental element is not yet identified, the consensus is that water-damaged buildings, such as the one in which the applicant worked for the employer, likely harbor such element. The fact that three individuals working in the employer's building during the same time frame contracted the disease is relevant and probative, and supports Dr. Williams' opinion.
The commission therefore finds that the applicant contracted the disease of sarcoidosis arising out of and in the course of his employment with the employer, and that the date of injury was the applicant's last day of work, April 24, 2006.
Based on the administrative law judge's recitation of the agreement between the parties that a favorable finding regarding causation would result in payment of one week of temporary total disability, with the matter being left interlocutory with respect to all other issues of extent of disability and medical expense, the commission will award one week of temporary total disability in the applicable amount of $744, less a 20 percent attorney's fee. The applicant's attorney is also entitled to a 20 percent fee, together with any expenses, to be applied against any additional awards of temporary or permanent disability.
Now, therefore, this
The Findings and Order of the administrative law judge are reversed. Within 30 days from this date, respondents shall pay to the applicant the sum of Five hundred and ninety-five dollars and twenty cents ($595.20); and to applicant's attorney, John D. Neal, fees in the amount of One hundred forty-eight dollars and eighty cents ($148.80).
Jurisdiction is reserved with respect to all issues, with the exception of causation, which is herein determined on a final basis.
Dated and mailed March 31, 2009
castafr . wrr : 185 : 6 ND § 3.42
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
NOTE: The commission reversed the decision of the administrative law judge based on analysis of the medical opinions and undisputed facts. No credibility issues arose regarding the accuracy of the applicant's testimony.
cc:
Attorney John Neal
Attorney Steve Cotton
Appealed to Circuit Court. Affirmed August 24, 2009. Appealed to Court of Appeals. Affirmed March 9, 2010.
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