Ruling affirms link between chemical, disease in case involving Armstrong Flooring

//December 14, 2018

Ruling affirms link between chemical, disease in case involving Armstrong Flooring

//December 14, 2018

The exposure took place in the early 2000s at a flooring plant operated by Armstrong World Industries Inc., the Manor Township, Lancaster County-based manufacturer.

The workers’ comp claim was initially filed in 2007 but has been embroiled in litigation for the last 11 years.

The latest turn came on Nov. 16, when a Commonwealth Court judge upheld the claim, ruling that Armstrong World must compensate the family of a deceased employee who was exposed while employed there to trichloroethylene, also known as TCE.

The case is now being handled by Armstrong Flooring Inc., which split from Armstrong World in 2016.

The background

Gene Michael Cooper worked at Armstrong for more than 30 years before his death on Feb. 5, 2014 at age 58. He died from Parkinson’s disease, a degenerative brain disorder that his claim argues was caused by exposure to TCE.

The initial workers’ comp claim was upheld by a Workers’ Compensation Board judge in June 2012, according to November’s Commonwealth Court order, penned by Judge Renee Cohn Jubelirer. Armstrong first appealed the workers’ comp judge’s decision, but the claim was affirmed in 2014 by the full workers’ comp board and reaffirmed in 2017 by the Workers’ Compensation Appeal Board.

The 2017 order was reaffirmed on Nov. 16 by Judge Jubelirer. She held that the claimant should be compensated because the “Board did not err” in concluding the claim was supported by “substantial, competent evidence” and “was timely filed” within three years of the date of the injury. The board found that Cooper was exposed at his workplace to numerous chemicals, including multiple halogenated hydrocarbons, such as TCE, which caused his toxic encephalopathy with Parkinsonian symptoms, Jubelirer affirmed.

The initial claim was filed in December 2007 on Cooper’s behalf by his wife, Sandra Cooper. She claimed her husband sustained encephalopathy with dementia as of June 15, 2004, from toxic exposure to TCE beginning September 2003.

His condition deteriorated to the point that he required nursing home care within a few years of his diagnosis, Sandra Cooper said. But the experience has been made “even more complicated” by decades of disputes and litigation battles, she added.

With health care and prolonged litigation costs over the course of 11 years, Sandra Cooper told CPBJ, the family has accrued at least $200,000 in litigation costs. She estimated the total compensation for her husband’s claim could come to more than $1 million.

Armstrong has 30 days to appeal Jubelirer’s Nov. 16 order to the Pennsylvania Supreme Court.

“We generally do not comment on matters under litigation,” said Stephen Trapnell, corporate communications manager for Armstrong Flooring. “That said, we were saddened by our former employee’s illness and his family’s loss, but we continue to believe that the evidence does not support determination that his condition was work-related. Armstrong Flooring has a strong commitment to safety in the workplace, with programs and an ongoing focus by management and employees at all levels of the company.”

Sandra Cooper said there are 34 other related cases involving TCE exposure in Lancaster, adding that she expects further litigation.

Also named in Cooper’s previous litigation is Brenntag Northeast, a Reading-based distributor of industrial and specialty chemicals, which allegedly mixed and sold safety solvent to Armstrong.

Brenntag’s attorney, Ron Hurst, a partner in the litigation department of Montgomery, McCracken Walker & Rhoads LLP, said he is “not familiar enough to comment” on the exposure risks of TCE. But, he added, “I have been involved in cases as a lawyer where it was alleged” that TCE exposure caused health risks, “but it’s not true.”

He declined to comment on any ongoing litigation he has involving TCE exposure risks or whether there is similar liability risk for industrial users of TCE as there has been historically for users of asbestos. The law firm’s website indicates Hurst is a trained industrial hygienist/toxicologist and has an extensive background in industrial hygiene and safety issues, including asbestos, benzene and indoor air quality.

Cooper’s husband began working for Armstrong in April 1974 and moved to various locations throughout its Lancaster plant over the next three decades, according to court records. One stop was a department that made a commercial flooring now called Corlon.

He was required to inspect product and use certain solvents to clean equipment. While working in September 2003, he was called to assist in the cleanup of 500 to 750 gallons of “top foam” that had spilled, Jubelirer’s ruling said.

His wife testified that in the last week of September 2003, he “came home from work screaming, crying and coughing” more than she had ever seen before. After multiple rounds of medication and medical visits, his condition worsened and mental and behavioral conditions began to deteriorate, the judge’s ruling said. According to court records, he “left work sick on April 23, 2004, and never returned.”

TCE is widely used in industrial and commercial processes, and has some limited uses in consumer products, according to the U.S. Environmental Protection Agency. About 255 million pounds of TCE is consumed in the United States every year.

The EPA had previously deemed TCE a volatile organic compound that is classified as a human carcinogen. It has been studying the chemical’s risks further under a 2016 law known as the Lautenberg Chemical Safety Act. The studies are a prelude to potential regulation.