How many times has a claim file landed on the desk of anadjuster or defense attorney with little more than one or two moldtest reports and a huge bill for remediation that already has beencompleted? How does the adjuster or defense attorney evaluate thevalidity of the mold claim or the remediation costs?

|

When claimants are demanding immediate action, how does anadjuster or attorney properly handle potential mold claims that mayinvolve responsible third parties in order to preserve third-partyclaims that may eventually end up on the desk of other adjusters orattorneys?

|

Although the weight of scientific evidence is against most majorpersonal injury claims, the effects of mold on allergies, asthma,and infections in medically fragile individuals are well known anddocumented. In addition, the public perception of mold as a healthrisk has greatly increased the potential cost of any water lossclaim. Therefore, proper handling of actual or potential moldclaims is crucial to avoid allegations of bad faith and to preservepossible claims against third parties.

|

The general standards for examination and testing of physicalevidence are outlined in the American Society for Testing andMaterials' Standard Practice for Examining and Testing Items ThatAre or May Become Involved in Litigation and Standard Practice forCollection and Preservation of Information and Physical Items by aTechnical Investigator. These provide the starting point fordetermining whether any examination or testing of physical evidencewas conducted properly. In actual or potential mold claims, manylevels of possible examination and testing exist, and multiplevariations on the types of examinations or tests can beconducted.

|

Most fieldwork should be conducted by an Industrial Hygienistwho has been certified by a reputable agency such as the AmericanIndustrial Hygiene Association (AIHA). The CIH designation meansthat the hygienist has been trained in the proper techniques forphysical inspection and sampling. (This does not mean, however,that he actually has sufficient experience or is conducting fieldtests properly.) People working with molds in the laboratoriesusually are mycologists, specializing in the study of fungi;microbiologists, a broader specialization involving fungi,bacteria, and other microorganisms; or toxicologists, who studyorganisms and other substances potentially harmful to humans.

|

Field examination and testing that is not conducted by anexperienced and trustworthy CIH should be viewed with skepticism.Laboratories should be accredited by AIHA (a list can be found atwww.AIHA.org) and one or more national-level professionalorganizations. Additionally, all laboratory work should beconducted by, or under the supervision of, a mycologist ormicrobiologist.

|

National Standards

|

In the expert parlance, testing for mold is a fungal assessment.However, there are no national standards for when or how fungalassessments should be conducted. The lack of national standards isthe result, primarily, of the lack of recognized personal exposurelevels (PELs) for mold, such as those that have been developed fortoxic chemicals and other substances. The difficulty ofestablishing baseline PELs is due to the pervasive and ubiquitousnature of mold and other microbial organisms, the wide variation inthe ambient exposure between different geographical regions, andthe fact that physical reactions to the same exposure can varygreatly from one person to the next, or even for the same person atdifferent times of exposure. For example, what may be an allergicirritant to a city-dweller from New York visiting a southern farmmight be simply the “sweet smell of home” to someone who has livedthere all his life.

|

Some published guidelines for assessment are being used byreputable companies, although the focus of these guidelines isremediation. The Guidelines on Assessment and Remediation of Fungiin Indoor Environments, from the New York City Department ofHealth, probably is the most widely used. The EPA also haspublished recommendations for fungal remediation in schools andcommercial buildings. Again, however, the main focus of both isremediation, with little guidance as to when or how to conductassessments.

|

Authorities have reached some general agreement on whenexamination or testing is necessary. Fungal assessments should beconsidered strongly in the following situations: water has intrudedinto or remains on organic materials for longer than 24 hours;there is visible growth of suspected fungal organisms; buildingoccupants experience widespread and continuous allergic symptoms inthe absence of other identified causes; or there are known orsuspected cases of human fungal contamination in a medical orassisted-living facility.

|

Mold spores exist in almost every environment, and organicbuilding materials are used in virtually every structure.Preventing continuous water contact with organic materials is,therefore, the best method of preventing mold growth. Because moldspores take 24 to 48 hours to germinate, if water intrusion iseliminated and the affected area is dried and cleaned within 24hours, a fungal assessment probably is not necessary, other thaninformal observation for a few days to detect any visible fungalgrowth or mold-related odors.

|

Anytime a substance that is suspected to be mold is visible,source sampling should be conducted. Visible mold growth is anindication of continuous moisture intrusion and may require aninvestigation to determine the origin of such intrusion. Airsampling also may be warranted, depending upon the location andsize of fungal growth, the type of mold detected, the concerns ofbuilding occupants, and the use of the structure (for example,medical or assisted-living facilities).

|

A broad assessment of an indoor environment may be warrantedwhen a relatively large number of occupants experience similarallergic symptoms. Many possible causes exist for what is looselycalled sick building syndrome but, at the least, visual inspectionof the structure, including wall cavities and other hidden areas,may be necessary. If visual inspections do not reveal potentialcauses, air sampling may be warranted to identify possible causesor areas of the structure that require more extensiveinvestigation.

|

Medically fragile individuals (such as those with pulmonaryconditions, the elderly, and the very young) are susceptible torare but potentially fatal infections such as Aspergillious, inwhich spores from the Aspergillus species of mold can invade andgrow in the lungs or open wounds. These cases present the greatestexposure for personal injury claims. Facilities occupied bymedically fragile individuals must take greater precautions todetect and prevent mold growth, especially when events such asremodeling or water damage occur. Source sampling and air samplingshould be conducted anytime that there is visible mold growth inareas connected to the space used by medically fragile individuals(including HVAC or other air-exchange systems) or where there is aknown or suspected case of personal fungal contamination.

|

Testing Methods

|

Every fungal assessment should begin with a physical examinationof the test area. Physical examination can identify areas ofvisible growth, the patterns of air flow likely to transportspores, possible origins of water intrusion, and possible sourcesfor mold contamination other than indoor growth (such as indoorplants, pet bedding or grooming items, or certain types oflandscaping near heavily used doorways). Observations made by theperson conducting the physical examination should bedocumented.

|

If warranted, sampling may be conducted after a thoroughphysical inspection. Fungal assessments in the field consist of twobroad types of sampling, source sampling and air sampling. Airsampling involves the collection of airborne mold spores or hyphae(parts of the mold organism) through the use of air intakeequipment and spore traps. Source sampling involves collectingspecimens of visible suspected fungal growth, and can involvescraping visible material into clean collection bags, taking liftswith clear transparent tape, taking samples with sterile swabs, orthe actual removal of pieces of the material upon which thesuspected mold is growing.

|

Air sampling is the most common method used in fungalassessments. It also is the source of most errors andmisinterpretation. Because mold exists almost everywhere, virtuallyall airborne tests will be positive for mold spores. A positiveindoor air sample, by itself, is virtually meaningless.

|

Air sampling should be conducted in multiple areas of thestructure and control samples must be taken of the outdoor air nearareas of airflow into the structure, such as doors, windows, andair exchangers. Although there is some uniformity in the type ofequipment used, there can be wide variations in how the tests areconducted, especially in the volume of airflow over a spore trap orthe length of the sampling procedure. Therefore, air-samplingresults have utility only when samples have been taken in multipleareas using the same technique. This allows a comparative analysisof results to determine whether the indoor concentration of sporesis greater than the outdoor concentration, which may indicateadditional assessments.

|

Another potential source of error in air sampling occurs in thelaboratory. Visual examination of spore collection plates isdifficult, and both spore counts and spore identification can varygreatly from one technician to the next. Therefore, the same personshould visually examine all air samples from a suspectedlocation.

|

If it is necessary to identify the type of mold collected in anair sample, the better method is the use of culture media to growmold organisms from collected spores. The drawback of this methodis that it takes time and tends to underestimate actual fungalconcentration, because many spores either are not viable or areunable to grow on the culture medium. Microscopic visualexamination of air samples taken properly is the best method ofcomparing fungal concentration, but culture-based analysis is thebest method for identifying fungal species.

|

Identification of fungal organisms taken by source sampling alsoface the same limitations of visual examination. Accuracy inidentification is dependent on the degree of the analyst'sexpertise and experience. The value of source sampling is that,usually, organisms are sufficient for species identificationwithout the time required to grow cultures. Visual identificationof source samples also is useful for comparison to air samples inorder to determine whether the sampled growth could be contributingto airborne fungal concentrations. If they are not visuallysimilar, the growth likely is not affecting air quality.

|

In cases of actual fungal infestation in the human body, propersampling, testing, and preservation of the samples are absolutelyessential. With proper samples, polymerase chain reaction testingcan identify not only the species of mold, but the strain.Comparison then can be made between the mold strain taken from thehuman infestation and that found in the suspect environment inorder to determine the likely source of the strain.

|

A proper understanding of the procedures involved in examiningand testing for mold now are fundamental requirements for adjustersand attorneys. Adjusters and attorneys must be aware of the utilityand limitations of these examinations and tests in order to preventspoliation of evidence claims, to recognize spoliation claimsagainst others, and to properly acquire and preserve evidence forpossible claims against others.

|

T. McRoy Shelley III is an attorney with Rogers Townsend& Thomas, in Columbia, S.C. He can be reached [email protected].

Want to continue reading?
Become a Free PropertyCasualty360 Digital Reader

  • All PropertyCasualty360.com news coverage, best practices, and in-depth analysis.
  • Educational webcasts, resources from industry leaders, and informative newsletters.
  • Other award-winning websites including BenefitsPRO.com and ThinkAdvisor.com.
NOT FOR REPRINT

© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.