COLLEEN L. MYHRE, Employee/Appellant, v. PUBLIC STORAGE, INC., and CHARTIS INS./SEDGWICK CLAIMS MGMT. SERVS., INC., Employer-Insurer/Cross-Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
JUNE 5, 2012
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including environmental study reports and expert medical opinion, supports the compensation judge’s finding that the employee was not exposed to mold in her employer-furnished apartment and was not disabled as a result of that exposure.
EVIDENCE - EXCLUSION. Where the compensation judge was within her discretion to exclude exhibits of medical journal articles from evidence but discussed the articles in her memorandum, and there is no indication that the judge’s consideration of these articles formed the basis for the judge’s decision, any error by the judge in discussing exhibits not admitted into evidence was harmless.
Determined by: Milun, C.J., Stofferahn, J., and Hall, J.
Compensation Judge: Jeanne E. Knight
Attorneys: Michael B. Healey, Michael Healey Law, St. Paul, MN, for the Appellant. Michael D. Miller and Jeffrey R. Homuth, McCollum, Crowley, Moschet, Miller & Laak, Minneapolis, MN, for the Cross-Appellants.
PATRICIA J. MILUN, Chief Judge
The employee appeals the compensation judge’s findings that she was not exposed to mold in her employer-furnished apartment and that she was not disabled as a result of that exposure. The employer and insurer cross-appeal the compensation judge’s consideration of exhibits which were not admitted into evidence at the hearing. We affirm.
Colleen L. Myhre, the employee, worked as a property manager for Public Storage, Inc., the employer, which was insured for workers’ compensation liability by Chartis Insurance, the insurer. From June 2008 through August 2010, the employee worked at the employer’s Plymouth location and lived in an employer-furnished apartment on the property. The employee reported a foul odor from the basement of the apartment and water damage on the wall of the basement to her district manager. The employee thought she detected mold growing in the basement. The employee also reported these issues to her regional managers.
The employee had treated for respiratory problems in the past at Hennepin Faculty Associates, and smoked cigarettes on and off since 1975. At one point, the employee was smoking three packs of cigarettes per day. In September 2000, the employee treated with Dr. M. Kathryn McCulloch for a viral respiratory infection with bronchitis, reporting sore throat and coughing with some blood. In August 2002, the employee was seen by a nurse practitioner for bronchitis with broncospasm, reporting coughing and shortness of breath. In January 2004, the employee was seen by Dr. Mark Wolters for a routine examination and reported experiencing a severe persistent cough for over a month. Dr. Wolters noted that the employee’s cough could be related to her gastroesophageal reflux disease (GERD). The employee returned to Dr. Wolters in April, August, and October 2004, for the persistent cough and some shortness of breath. In April 2005, Dr. Wolters indicated that the employee had been evaluated in the ear, nose, and throat department and that her cough could at least partially be related to GERD. Dr. Wolters concluded that the employee had a persistent cough at least exacerbated by GERD and chronic obstructive pulmonary disease (COPD), with chronic bronchitis. In August 2006, the employee returned for treatment of sinus pressure with discharge and pain. The employee also reported headache with sinus pressure, ear pain, chronic cough, and shortness of breath in December 2006.
The employee began living in the employer-furnished apartment in June 2008. In July 2008, the employee was treated by Dr. Wolters for pressure behind her eyes and nasal discharge. Dr. Wolters assessed sinusitis with early bronchitis. The employee reported seeking treatment for sinus problems in December 2008. In February 2009, the employee began treating with Dr. Gary Nisius at North Clinic in Plymouth, Minnesota, for general health care. A February 8, 2009, x-ray indicated a one centimeter ovoid nodular density in the right lung, and a CT scan was recommended. In April 2009, the employee complained of coughing, sinus congestion, drainage, and pressure. The employee returned with a cough and laryngitis in May 2009. On May 27, 2009, the employee underwent a chest CT scan, which indicated stable right lower lobe pulmonary nodules. In December 2009, the employee was treated for sinus symptoms. Again in January 2010, the employee reported sinus symptoms and coughing and allergy symptoms over the last few months. In July 2010, the employee returned with symptoms including a heavy feeling in her chest and coughing. The employee reported that there was black mold in her basement and that it would be investigated.
On August 5, 2010, the employee’s residence was inspected for mold exposure by EFI Global, Inc. During the inspection, a dehumidifier and air filter were in use in the basement and the south access door to the residence was open. Air samples were taken from outside the north and south sides of the home, and from inside the living room, bathroom, basement, and crawl space opening. The outdoor air samples were taken for comparison with the indoor samples. Surface samples were also taken from the north basement block wall behind the washing machine, the northeast corner of basement at east block wall, and south exterior block wall at east end. No fungal spores were found in the basement samples. A light amount of mold was found on the exterior block wall. The inspection found that there was evidence of water and moisture damage in the basement, but that there were no visible signs of fungal growth in the living or basement area of the residence. Due to the lack of visible fungal growth or unusual spore counts, no remediation was recommended.
The employee testified that Dr. Nisius recommended that she move out of the apartment because of the symptoms the employee was experiencing and her reports of mold on the property. On September 1, 2010, the employee moved out of the employer’s apartment.
On November 18, 2010, the employee was evaluated by Dr. Thomas Mulrooney at the employer and insurer’s request. Dr. Mulrooney opined that the employee’s medical treatment was not causally related to her employment since the employee’s symptoms had not changed when she moved into the employer’s residence, the employee had no history of allergies, and the environmental study did not indicate high fungal counts in the residence. He also stated that the employee was not at maximum medical improvement for her chronic rhinosinusitis because she had not stopped smoking.
In August 2011, a narrative report based on the 2010 inspection was released by EFI Global, Inc. The report reiterated that no visible mold was observed in the residence and the mold samples did not indicate the presence of unusual spore counts. The report also noted that mold is a naturally occurring part of the environment, that the levels of mold can vary based on conditions, and that there are no governmental regulatory exposure limits for mold. In addition, the report stated that generally the industry standard for indoor airborne mold levels is for them to be lower than outdoor levels. The report concluded that results of the investigation did not indicate the presence of mold growth or contamination in the building.
On August 22, 2011, the employee was evaluated by Dr. S. Scott Nicholas, an allergist and immunologist at Eisenstadt Allergy & Asthma, at her attorney’s request. Dr. Nicholas opined that the employee had increased difficulty with her rhinosinusitus condition, headaches, and increased pressure behind her eyes from exposure to volatile organic compounds produced by mold on the property where she lived from June 2008 through August 2010. Dr. Nicholas specifically noted that his opinion was based on his expertise in mold exposure and his examination of the employee, presuming that her statements were true and correct. He also indicated that he did not have the employee’s medical records from before June 2008.
On October 19, 2011, a hearing was held on the employee’s claim for temporary total disability benefits and medical expenses. At the hearing, the employee attempted to introduce two exhibits of medical journal articles, entitled “Adult Rhinosinusitus: Diagnosis and Management” and “Adverse Human Health Effects Associated with Molds in the Indoor Environment,” into evidence. The employer and insurer objected, which the compensation judge sustained. In her decision, the compensation judge found that the employee had failed to prove that she was exposed to mold in the employer-furnished apartment or that she was temporarily totally disabled from and after September 1, 2010. The employee appeals these findings. Within the decision’s memorandum, the judge discussed the articles submitted by employee’s attorney. The employer and insurer cross-appeal the compensation judge’s consideration of exhibits which were not accepted into evidence on the record.
STANDARD OF REVIEW
The Workers’ Compensation Court of Appeals must determine whether the findings of fact and order are clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted. Substantial evidence supports the findings if, in the context of the entire record, they are supported by evidence that a reasonable mind might accept as adequate. Fact findings are clearly erroneous if the reviewing court, looking at the entire evidence, is left with a definite and firm conviction that a mistake has been committed. Findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.”
The employee appeals the compensation judge’s finding that the employee failed to prove that she was exposed to mold in the employer-furnished apartment. The employee argues that the August 2010 inspection report indicates that there were elevated levels of mold inside the apartment. We disagree. The 2010 report concluded that there were no unusual spore counts and that no remediation was required. The page of the report referred to by the employee simply indicates the amount of the spore counts recorded in the samples, not that they were in any way “elevated.” The presence of mold spores in the apartment does not necessarily indicate that the level of mold is elevated or unusual. The August 2011 narrative report by EFI Global, Inc., indicated that the industry standard for indoor mold levels is for them to be lower than outdoor levels, and in this case, the interior air sample counts from the apartment were lower than the exterior air sample counts. Further, the report, which was based on the 2010 inspection, noted that no visible mold was observed in the residence and the mold samples did not indicate the presence of unusual spore counts. The report concluded that results of the investigation did not indicate the presence of mold growth or contamination in the building. The compensation judge could reasonably conclude that the employee was not exposed to elevated or unusual amounts of mold in the apartment. Substantial evidence supports the compensation judge’s finding that the employee was not exposed to mold in the employer-furnished apartment. Accordingly, we affirm.
The employee also appeals the compensation judge’s finding that she was not disabled as a result of exposure to mold. Questions of medical causation fall within the province of the compensation judge. The employee asserts that her need for medical treatment increased after moving into the employer’s apartment, citing the employee’s medical records and Dr. Nicholas’s opinion. Dr. Nicholas opined that the employee’s increased difficulty with rhinosinusitus, headaches, and pressure behind her eyes was more likely than not the results of exposure to volatile organic compounds produced by mold on the property where she lived from June 2008 through August 2010. He opined that that these compounds could aggravate her symptoms and would be a causative factor while she lived in the apartment. Dr. Nicholas did not review the employee’s medical records from before June 2008.
Dr. Nisius advised the employee to move out of the apartment because of her symptoms and her exposure to mold. The judge found that Dr. Nisius relied on the employee’s allegation that she was constantly exposed to mold. There is no indication in the employee’s medical records from Dr. Nisius that he was provided with the results of the environmental study reports.
While the employee treated for her symptoms numerous times from 2008 through 2010, she also treated for similar symptoms years before she moved into the apartment. Dr. Mulrooney examined the employee and reviewed her medical records. He opined, in part,
[the employee] has no medical history of allergy. Her nasal symptoms have been perennial since their onset about six years ago and have not been associated with seasonal fluctuations or fluctuations associated with exposure to particular allergans. Thus I find it improbable that fungi in her dwelling contributed to her symptoms. Moreover, the environmental study of the suspect home did not confirm high fungal counts within the dwelling, particularly in the living area.
Dr. Mulrooney concluded that the employee’s medical treatment after June 2008 was not causally related to her employment. A compensation judge’s choice between expert opinions is generally upheld unless the facts assumed by the expert are not supported by the record. The compensation judge could reasonably rely on Dr. Mulrooney’s opinion.
The employee also argues that Dr. Mulrooney indicated that the employee was not at maximum medical improvement (MMI) ten weeks after moving out of the apartment. We note that Dr. Mulrooney opined that the employee was not at MMI for her chronic rhinosinusitis because she had not stopped smoking. He did not relate the employee’s condition to her living in the apartment, and specifically noted that the environmental study reports did not indicate high fungal counts in the apartment. Substantial evidence supports the compensation judge’s finding that the employee was not disabled as a result of mold exposure, and we affirm.
The employer and insurer cross-appealed the compensation judge’s consideration of medical journal articles submitted as evidence by the employee’s attorney at the hearing. The employer and insurer’s attorney objected to the articles, arguing they were not admissible as substantive evidence. The judge asked if the employee’s doctor had relied on the articles, and the employee’s attorney requested additional time to inquire whether the doctor had relied on the articles. The employer and insurer’s attorney objected to the request for additional time, which the judge sustained. In the memorandum accompanying her findings and order, the judge discussed the articles that had been submitted by the employee’s attorney. The employee argues that the judge erred by not admitting the articles as evidence.
A compensation judge has broad discretion regarding the evidentiary rulings. Proper foundation to show the source, reliability, or general acceptance of the information in an article is necessary to qualify a medical journal article as an accepted medical authority or treatise. The judge is given “broad latitude in conducting a hearing and in the admission of evidence in order to assure that justice and fairness prevail.” In this case, there was no testimony by a medical expert to qualify these articles as accepted medical authority or treatise, or to show that they were used by any medical expert in forming an opinion. The compensation judge was certainly within her discretion to exclude the submitted articles from evidence. While the judge discussed the articles in her memorandum, there is no indication that the judge’s consideration of these articles formed the basis for the judge’s decision. Since the articles did not affect the outcome of the case, under these circumstances, any error by the judge in discussing exhibits not admitted into evidence was harmless. Given our affirmance of the employee’s appeal, we need not address the employer and insurer’s cross-appeal further.
 Minn. Stat. § 176.421, subd. 1.
 Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).
 Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
 The majority of the employee’s appeal focused on the employee’s attorney’s assertion that Respondent’s Ex. 5, the August 5, 2010, inspection report from EFI Global, Inc., was missing a page with critical information regarding elevated mold levels. At oral argument before this court, the employee’s attorney examined the exhibit and acknowledged that the page was not missing from the exhibit. Therefore, we need not address the employee’s arguments regarding the missing page from the exhibit.
 Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994).
 Respondent’s Ex. 3.
 Nord v. City of Cook, 360 N.W. 2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985).
 Ziehl v. Vreeman Constr. Co., slip op. (W.C.C.A. Oct. 15, 1991); see also Minn. Stat. § 176.411, subd. 1.
 See, e.g., Moldenhauer v. Grey Star Elecs., Inc., slip op. (W.C.C.A., Nov. 10, 2003) (this court affirmed exclusion of a medical journal article for lack of foundation); Dodge v. Farmstead Foods, Inc., slip op. (W.C.C.A. Mar. 12, 1992) (compensation judge erred by relying on medical journal article where there was no expert medical testimony to provide foundation for the article).
 Murphy v. Keebler Co., 45 W.C.D. 356, 358 (W.C.C.A. 1991), summarily aff’d (Minn. Nov. 5, 1991).
 See DeRosier v. Albrecht Co., 57 W.C.D. 231, 237 (W.C.C.A. Oct. 1997) (where an exhibit was not the basis of the compensation judge’s decision, any error in admitting the exhibit was harmless).