MARIE STAFFELDT, Applicant

SCHOOL DIST ELMBROOK, Employer

WAUSAU BUSINESS INSURANCE 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 January 8, 2009. School District of Elmbrook and Wausau Business Insurance Company (respondents) submitted an answer to the petition and briefs were submitted by the parties. At issue are whether or not the applicant sustained an occupational injury on or about April 13, 2005, arising out of and in the course of her employment with School District of Elmbrook; and if so, what are the nature and extent of disability and liability for medical expense.

On August 18, 2009, the commission ordered additional evidence to be taken from a physician to be appointed by the department, but for reasons explained below the commission herein sets aside that order.

The commission has carefully reviewed the entire record and hereby substitutes the following FINDINGS OF FACT AND CONCLUSIONS OF LAW for the findings made by the administrative law judge, but affirms the administrative law judge's ultimate finding that dismissed the applicant's application.

The applicant, whose birth date is May 25, 1977, began her employment with the employer in 1999. She worked her first year as a tutor, and thereafter as a full-time chemistry teacher. Between 2000 and 2001 she taught in rooms 15 and 17 at Brookfield Central High School. Beginning in 2002, she taught almost exclusively in room 17 of that school. Both of these rooms had some water leakage problems from the roof and sinks, and both had some mold growth in certain areas. Her claim is for permanent mold sensitization attributable to this mold exposure.

The applicant was seen by Dr. Thomas Mankiewicz on January 9, 1997, seeking relief from headaches that she indicated dated back to a motor vehicle accident in which she was involved on March 22, 1996. A subsequent CT scan was negative. The medical records document continuing complaints of intermittent but recurring headaches. Dr. Mankiewicz saw her on February 11, 2009, for neck pain and recurring headaches, again attributed to the motor vehicle accident. On November 18, 1999, Dr. Mankiewicz repeated a diagnosis of chronic headaches and neck pain. The applicant also saw Dr. Charles Shoham on several occasions in 1999, with complaints of headaches, neck and low back pain, and fatigue. Dr. Shoham offered myofascial pain syndrome and fibromyalgia as possible diagnoses.

In December 2002, the applicant saw Dr. Mankiewicz for fatigue, and lab tests for hypothyroidism were at the "lowest end of normal." In September 2003, she saw Dr. Steven Cohen with a two-to-three-year history of upper respiratory symptoms that she indicated seemed to be worse during the school year. Also noted was a history of allergic upper respiratory symptoms since childhood. Her symptoms were listed as itchy, tearing eyes with itchy nose and throat, postnasal drainage, frontal headache, fatigue, sneezing, a modest amount of clear watery rhinorrhea, and nasal congestion. The applicant tested positive to cat allergy but has a cat at home. Dr. Cohen provided the applicant with medication.

In October 2003, the applicant indicated to the employer that she believed her symptoms were related to mold exposure in the classrooms, and requested corrective measures. She continued to work for the employer until April 2005, when she took a leave of absence through the end of the school year. She has not returned to work at Brookfield Central. She was assigned to Brookfield East High School for the following school year, but was not able to tolerate working there, and remains off work. She indicates that there are very few places she can go outside of her home that do not provoke an aggravation of her symptoms.

The applicant's ongoing symptoms include sore throat, itchy and watery red eyes, breathing difficulties, headaches, fatigue, sinus pressure, and dizziness. She has also developed skin rashes, primarily on her face, that have been described as hives, but which are not definitively diagnosed. She indicates that the rashes were worse while she was working for the employer, but she continues to have intermittent difficulty with them. The applicant's primary treating physician for her symptoms is Dr. Mankiewicz, and he has opined that the applicant requires a clean, filtered, and continually-monitored environment free of any significant concentration of growing or dead colonies of mold spores.

After the applicant complained about the mold in her classrooms the employer instituted remedial measures. The employer ordered an indoor air quality investigation and assessment performed by Environmental Management Consulting on March 11, 2004. It revealed visible mold in and on cabinets found in rooms 15 and 17, and recommended remediation in accordance with EPA guidelines. Ambient air testing revealed elevated counts for Aspergillus/Penicillium mold. Cladosporium mold was also identified in the testing, but not in greater concentrations than found outdoors. On September 17, 2003, the applicant underwent allergy testing for sensitivity to molds. The tests were positive for reactions to the mold species Alternaria Tenuis and Epicoccum, as well as for a delayed reaction to a mold mix containing Aspergillus/Penicillium.

Dr. Thomas Mankiewicz has opined that the applicant "...now has a permanent sensitization to mold as a result of the repeated exposure to large amounts of airborne and growing mold in her workplace at Brookfield Central." He includes the applicant's skin rashes as being attributable to this sensitization. Dr. Mankiewicz took the applicant off work in April 2005, due to her symptoms.

The employer ordered another indoor air quality sampling from Environmental Management Consulting that was conducted on two days, March 23, 2005 and April 5, 2005. This study showed no visible evidence of water damage or mold in rooms 15 and 17, and the air sampling readings were lower than the outdoor concentrations of mold.

Respondents' physician, Dr. James C. Foster, is an occupational medicine specialist. He examined the applicant on August 31, 2005, and again on December 15, 2006. He submitted a report dated October 6, 2005, a supplemental report dated November 15, 2005, and a final report dated January 2, 2007. His reports are very comprehensive in their approach, and find no work causation. In his first report, Dr. Foster conceded there appears to have been an excess of Aspergillus/Penicillium present when the high school was tested in March 2004, but opined that adequate remediation took care of the problem. Dr. Foster diagnosed "environmental allergies including some molds," and conceded that exposure at Brookfield Central may temporarily have made the applicant more symptomatic with sneezing and itchy eyes. However, he believes the applicant's more serious complaints of persistent skin rash, muscle aches, and fatigue are unrelated to the mold exposure. His supplemental report included review of additional medical records, but his opinion regarding causation remained the same.

In his final report dated January 2, 2007, Dr. Foster reiterated his opinion regarding causation. He specifically opined that there is no causal relation between the applicant's urticaria (skin rashes) and the mold exposure, and refused to speculate as to what caused these rashes. He also noted that asthma is not a likely diagnosis, and that pulmonary function tests were negative. He further noted that the applicant had preexisting complaints of headaches, fatigue, and muscle pain. He suggests the possibilities of anxiety disorder or secondary gain.

In accordance with the commission's remand order for additional evidence, an independent medical examination was scheduled with Dr. James Martin on September 23, 2009. When the applicant arrived at the building where the exam was to take place, and learned that she would be examined in the lower level of the building, she refused to proceed with the exam and indicated that she was fearful of a flare-up of her symptoms. Dr. Martin came out of the building and attempted to reassure the applicant, but this was unsuccessful. Dr. Martin offered to examine the applicant in a different facility, and advised her to speak to Dr. Mankiewicz about this. On December 11, 2009, Dr. Mankiewicz sent a letter to the applicant's attorney indicating that due the applicant's severe allergic response to "environmental allergens," the exam would have to take place in a sterile negative pressure room located inside a hospital or other medical facility. He offered as an alternative possibility that the applicant be fitted with a special mask that filters out any environmental allergens. Dr. Martin indicated to the department that he could not perform a useful examination with the applicant wearing a mask, and that he knows of no facility matching Dr. Mankiewicz's restrictions that is available for examination purposes. Accordingly, the commission set aside its order for additional evidence and once again reviewed the evidence of record.

It is evident that the applicant had preexisting symptoms of headache and upper respiratory discomfort. Her stated belief is that these preexisting symptoms have been made much worse by her exposure to mold at Brookfield Central High School. Her belief is supported by Dr. Mankiewicz's medical opinion set forth in his WKC-16-B dated January 4, 2007, in which that physician indicates the "work exposure to mold" was either a sole cause of the applicant's conditions, or at least a material contributory causative factor in their onset or progression.

The commission finds Dr. Foster's opinions to be credible. It is clear that the applicant was exposed to mold while performing her teaching duties at Brookfield Central. The primary exposure was to elevated levels of Aspergillus/Penicillium, which is an allergen to the applicant. However, Dr. Foster credibly opined that the symptoms to be expected from such exposure, particularly upper respiratory symptoms, should be self-limiting and not at all disabling. Dr. Foster credibly noted that this was particularly true given the remedial measures taken by the employer. However, the applicant's symptoms are widely generalized and so disabling that for the most part she is unable to leave her house. An incongruous aside to this is that she has been able to tolerate living with a cat, even though allergen testing revealed her allergic sensitivity to cats. She has also acquired a dog as a pet. In his medical summary of January 16, 2006, Dr. Mankiewicz wrote that the applicant did not have a medical history of allergies, or treatment for such. However, the applicant's medical history reveals upper respiratory symptoms dating back to her childhood. Dr. Mankiewicz did not credibly explain how the applicant's exposure to Aspergillus/Penicillium, or other molds, allegedly caused such severe, global acceleration of these symptoms.

Dr. Foster also credibly opined that it would be problematic to attribute the applicant's skin rash to mold exposure, and Dr. Mankiewicz provided no credible medical explanation for such alleged causation. The applicant's headaches have been preexisting since March of 1996, and while she subjectively attributes an increase in their severity to mold exposure, Dr. Mankiewicz again failed to articulate any credible medical explanation for why this should have occurred. When he completed his WKC-16-B on January 4, 2007, Dr. Mankiewicz indicated there was no permanent disability, but a permanent sensitivity. Acceptance of the applicant's subjective symptom complaints would lead to the conclusion that she is permanently disabled, and so sensitized to the normal contents of ambient air virtually anywhere outside her house, that Dr. Mankiewicz' opinion does not provide an adequate medical explanation for such symptoms. Dr. Foster's opinion that the applicant's symptom complaints are not caused by a permanent sensitization to mold exposure at the employer's high school is credible. The applicant's claim therefore must be dismissed.

NOW, THEREFORE, this

The commission's order that directed the taking of additional evidence, issued on August 18, 2009, is set aside. The commission's findings are substituted for those made by the administrative law judge, but the administrative law judge's ultimate finding of a dismissal of the application is affirmed. The application is dismissed.

Dated and mailed February 24, 2010
staffma2 : 185 : 5 ND § 3.4

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

cc: Attorney Charles Graf
Attorney Peter L. Topczewski

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