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Livermore v. Madison County Judge

Court of Appeals of Arkansas, Division III

November 5, 2014

JOYCE RENEE LIVERMORE, APPELLANT
v.
MADISON COUNTY JUDGE; AAC RISK MANAGEMENT SERVICES, APPELLEES

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION. NO. G105585.

Taylor Law Partners, LLP, by: Timothy J. Myers, for appellant.

Michael E. Ryburn, for appellees.

DAVID M. GLOVER, Judge. VAUGHT and WOOD, JJ., agree.

OPINION

Page 131

DAVID M. GLOVER, Judge

Joyce Renee Livermore appeals from the Commission's decision that barred her claim for workers' compensation benefits based upon the statute of limitations. She contends that the Commission's finding that she failed to prove by a preponderance of the evidence that her claim for compensation was filed within the statute of limitations under Arkansas Code Annotated section 11-9-702 is not supported by substantial evidence. We disagree and affirm.

Background

Livermore was employed with the Madison County Sheriff's Department as a secretary/jail administrator, and in 2008 she worked in the basement of the county courthouse when it was flooded by rainfall. The flooding resulted in a mold problem that had to be remediated. The employees working in the basement were moved to another space during the remediation, which included mold removal, testing to confirm mold removal, redoing the floors, painting the area with a " mold-barrier" paint, lowering the ceilings, installing a heating and air-conditioning system to reduce the amount of condensation, and conducting final testing after remediation completion to confirm normal levels of mold. The January 2009 letter report from the certified inspection company reported that the total airborne moldspore count at each sampled location inside was lower in comparison to the outside sample, and it made special note that the outside levels were extremely low at that time of year. The report's conclusion was that the airborne fungal-spore levels were acceptable at each sampled location.

The employees were then returned to the basement. Livermore agreed that the space had been cleaned up and that the mold appeared to be gone at that time. However, she also testified that she noticed mold growing on the walls from the time they moved back in until they left again in June 2011. Laurie McConnell, Madison County emergency-management coordinator, testified that the space flooded again in April 2011 but that subsequent testing on May 24, 2011, by the firm that conducted the initial testing, reported acceptable mold levels. The firm's report also noted that " effervescence" was present on the basement walls, that it was often mistaken for fungal growth, that it was not, and that it was generally not considered to be a health issue.

As rebuttal evidence, Livermore presented testimony from Robert Boyd, Chief Deputy of the Madison County Sheriff's Office. Boyd testified that he saw the mold and effervescence on the wall prior to the remediation, and that, after the remediation, what he saw was very similar. He said that he voiced his concerns about continued mold and its health effects on employees who were working in the basement to the sheriff, Ms. McConnell, and other officials, and that he requested additional testing. He acknowledged that he was not aware of any testing that was done in January 2009 before they moved back into the workspace, but that he did know of testing before remediation and then again just prior to moving out in May or June 2011. He testified that he did some personal testing. He explained that in

Page 132

July 2009, he bought some petri dishes from Home Depot and conducted three different tests. He said that they are called settling tests and that they showed concentrations of mold. He said that he then sent the petri dishes to a company called Pro Laboratories, Inc., and that the results showed high amounts of certain types of fungal mold and that it was a big concern to him, especially because they were just moving back into the space and he had been in the hospital earlier in January.

Boyd acknowledged that he was not an expert in collecting samples, but said that he followed the package directions. He also acknowledged that he had a ...


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