DAVID RIFE, Employee, Claimant,
v.
ARCTIC CATERING AES ALASKA, L.L.C., Employer,
and
ALASKA NATIONAL INSURANCE COMPANY, Insurer, Defendants.
AWCB Decision No. 20-0043
AWCB No. 201701764
Alaska Workers Compensation Board
June 5, 2020
FINAL
DECISION AND ORDER
Robert
Vollmer, Designated Chair.
The
compensability of David Rife’s (Employee) January 24,
2018; May 11, 2018; and December 26, 2018 claims was heard in
Fairbanks, Alaska on February 6, 2020, a date selected on
September 20, 2019. The parties’ stipulation gave rise
to this hearing. Employee’s daughter, Summer Rife,
appeared and represented Employee, who testified on his own
behalf. Employee’s physician, Scott McMahon, M.D., also
appeared and testified on Employee’s behalf. Attorney
Nora Barlow appeared and represented Artic Catering AES
Alaska, L.L.C., and its insurer (Employer) . Employer’s
Medical Evaluator (EME), Brent Burton, M.D., appeared and
testified on Employer’s behalf. The record closed at
the hearing’s conclusion on February 6, 2020.
ISSUE
Employee
contends he was exposed to mold and mold toxins in January
2017, while cleaning the Ptarmigan Camp, where he was worked
as the Head Cook, and this exposure caused him to suffer from
Chronic Inflammatory Response Syndrome (CIRS), a water
damaged building (WDB) illness. He claims injuries to his
brain and lymphatic system and also contends his chronic
sinusitis resulted from the mold exposure. Employee contends
his claims for medical costs and temporary total disability
(TTD) benefits are compensable under the Alaska
Workers’ Compensation Act (Act) .
Employer
contends there is no scientific evidence to support CIRS, a
theory propagated by Ritchie Shoemaker, M.D., since the
1990s. It contends Dr. Shoemaker has created a network of
“disciples” who advocate the idea that exposure
to mold/biotoxins/mycotoxins cause neurological and
musculoskeletal symptoms. The basic premise of CIRS, Employer
contends, is that certain people have genetic susceptibility
to mold, and even low doses of mold can lead to
neurocognitive and musculoskeletal symptoms. It contends the
diagnosis of CIRS involves a “cluster” of
symptoms and biomarkers, but a review of relevant scientific
literature finds no support for the idea that there is a gene
that makes people susceptible to mold, and neither are there
any scientific studies linking the biomarkers and
neurocognitive and musculoskeletal symptoms to mold exposure.
Employer contends courts have barred Dr. Shoemaker’s
opinions in challenges under Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993),
since they are not sufficiently grounded in scientifically
valid principles and methods, and they should not be
considered here, either. It also contends Employee was
diagnosed with severe obstructive sleep apnea, a condition
not related to work, which better explains the symptoms for
which Employee sought treatment, and requests
Employee’s claims be found not compensable.
Are
Employee’s claims compensable?
FINDINGS
OF FACT
A
preponderance of the evidences establishes the following
facts and factual conclusions:
1)
Prior to Employee’s occupational mold exposure, he
denied any significant health issues. (Health History
Questionnaires, December 1, 2014; December 15, 2015) .
2) On
January 24, 2017, Employee contends he was exposed to mold
and mold toxins while cleaning the Ptarmigan Camp, where he
was worked as the Head Cook. (Claim, December 26, 2018) .
3) On
January 27, 2017, Beacon Occupational Health and Safety
Services conducted a visual mold survey after the Ptarmigan
Camp had been cleaned. Samples of potential mold were sent to
an analytical laboratory for confirmation, but no mold was
identified. (Bundy letter, February 7, 2017; Occupational
Health Report, February 7, 2017) .
4) On
February 6, 2017, Employee was evaluated in Deadhorse, Alaska
for headache, muscular pain in his back and chest, fatigue
and nausea after cleaning an old camp that was full of items
that “looked moldy” about five days previous.
Employee thought his symptoms had resulted from mold
exposure. He denied dizziness, vision changes, neck
stiffness, focal or generalized weakness, cough, runny nose
or nasal congestion, vomiting, diarrhea, rash or skin
lesions. A chest x-ray, electrocardiogram (EKG), complete
blood count (CBC) and a comprehensive metabolic panel (CMP)
were all normal. The physician’s assistant who
evaluated Employee thought Employee’s symptoms were
unlikely the result of mold exposure since Employee did not
have any allergic or respiratory complaints, did not present
with any allergic or respiratory findings, and the exposure
at the camp had occurred five days previous. Employee was
instructed to rest and was released to regular work.
(Fairweather Medical chart notes, February 6, 2017; X-ray
report, February 6, 2017) .
5) On
February 7, 2017, Employee telephoned Mat-Su Health Services
regarding an upcoming appointment he had with Susanne Dillon,
M.D., for “mold poisoning.” He described living
in a camp “full of black mold,” and reported
severe headache, fatigue, nausea and mental fogginess.
(Telephone message, February 7, 2017) .
6) On
February 9, 2013, Dr. Dillon evaluated Employee, who
described being exposed to “severe mold
infestations” for 10 days at the Ptarmigan camp.
Employee also stated the bedding he was supposed to use had
been stored in plastic bags, and when he looked inside, he
found dead animals, feces and feathers. Employee reported
headache, inability to focus, fatigue and body pain involving
his chest and back. He thought his headache “must be
related to the exposure because he has never had headaches
before this.” Laboratory tests, including c-reactive
protein, CMP, CBC, were all normal. Dr. Dillon described
Employee as being “extremely concerned,” because
he had been “reading online and believed he was very
sick.” Dr. Dillon thought Employee had been “a
very reasonable person in the past and [she] certainly
believed [Employee] believe[d] what he was saying,” but
she did not think Employee’s symptoms were consistent
with mold exposure because of the lack of respiratory
symptoms. Dr. Dillon considered referring Employee to either
an allergy clinic or a toxicologist and ordered repeat
laboratory tests, which were all normal, save for glucose,
which was slightly elevated. (Dillon chart notes, February 9,
2017; laboratory tests, February 14, 2017; referral letter,
February 14, 2017) .
7) On
February 14, 2017, Employee reported experiencing new pain
over his right maxillary sinus, which later resolved. Dr.
Dillon consulted Eric Meier, M.D., at the Alaska Allergy and
Immunology Clinic, who did not think allergy testing would be
helpful given Employee’s lack of respiratory symptoms.
Instead, Dr. Meier thought Employee might be suffering from
“sick building syndrome” and he recommended
Employee be referred to Mary DeMers, D.O., for evaluation.
(Dillon chart notes, February 14, 2017) .
8) On
March 1, 2017, Dr. DeMers evaluated Employee, who reported
fatigue, headache, nasal stuffiness, shortness of breath and
“brain fog,” where he would forget what he was
doing while performing simple tasks. He also reported
sleeping well but waking up fatigued. Dr. DeMers ordered a
magnetic resonance imaging (MRI) study to rule out sinus
infection and brain abnormality and took Employee off work
for two weeks. (DeMers chart notes, March 1, 2017; Review of
Symptoms, March 1, 2017; Return to Work form, March 1, 2017)
.
9) On
March 9, 2017, Gerald York, M.D., interpreted
Employee’s brain MRI to show “Volumetric changes
seen of the caudate heads bilaterally, in a pattern which can
be seen in prior mold exposure.” Dr. York cited an
article, Structural brain abnormalities in patients with
inflammatory illness acquired following exposure to water
damaged buildings: a volumetric MRI study using
NeuroQuant, to support his impression. NeuroQuant Triage
Brain Atrophy and General Morphometry reports were also
prepared. (MRI report, March 9, 2017; NeuroQuant reports,
March 9, 2017) .
10)
Richie Shoemaker, M.D. is the lead author of the article
cited by Dr. York. (Ritchie C. Shoemaker, Dennis House, James
C. Ryan, Structural brain abnormalities in patients with
inflammatory illness acquired following expo-sure to
water-damaged buildings A volumetric MRI study using
NeuroQuant, Neuro-toxicology and Teratology, Sep.-Oct.
2014, at 45: 18-26). According to Dr. Shoemaker, NeuroQuant
is a computer program used in traumatic brain injury cases,
which utilized data from an MRI to calculate volumes of 15
different...
