Washington Court of Appeals Addresses Burdens of Proof in Occupational Disease Cases

lee ann lowePotter v. Department of Labor and Industries, a decision issued yesterday by the Division One Court of Appeals, is a good reminder that building strong medical evidence based on the applicable legal standards can be critical to a case.

In June 2007 Ms. Potter’s employer moved into newly remodeled offices. In the first few weeks in her new office she noticed a strong chemical odor and a metallic taste in her mouth. She eventually started having a recurring bloody nose and intensifying feelings of disorientation and fatigue. By September 2007 she was working entirely from home. All the tests performed by her doctor were normal, but he suspected the chemicals involved in the remodel were causing her symptoms. She felt better in January 2008 and returned to the office. Within minutes she felt ill, confused, and noticed the chemical odor was still present. Eventually she was diagnosed with multiple chemical sensitivity disorder and she filed a workers’ compensation claim. The Department denied her claim and Potter appealed. Both the Board and the Superior Court affirmed the Department order.

On appeal she failed to prove her disorder arose “naturally” and “proximately” out of her employment; therefore, it did not meet the requirements for an occupational disease. First the court addressed the proximity prong. This required her to establish by competent medical testimony that her claimed condition was probably, rather than possibly, caused by her employment. This requires evidence that conditions in the workplace more probably than not caused the disease or disability. Ms. Potter’s medical experts testified as to possibilities rather than probabilities; therefore, she failed to meet her burden.

The second prong addressed by the court was whether Ms. Potter’s disorder arose naturally out of her employment. This prong required her to prove her condition came about as a matter of course as a natural consequence or incident of distinctive conditions of her particular employment. She must show her particular work conditions more probably caused her disability than conditions in everyday life or all employments in general. As with the first prong, she also failed to meet her burden on the second prong. She contributed her disorder to the chemicals due to the remodeled office. However, the court found that remodels are everywhere and not a particular condition of her occupation; therefore, she failed to meet her burden.

In building your medical evidence it is important to know the legal standards and burdens that must be met, particularly in requesting reports from doctors. For example, in drafting an IME letter for an occupational disease claim have the doctor address the “naturally” and “proximately” prongs separately, provide the doctor with helpful statutory or legal definitions, and always ask that all answers be provided on a more-probable-than-not basis.

If you have any questions regarding this or any other Washington issues, please feel free to contact me at: llowe@sbhlegal.com or 503-595-2138.