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Barbara Vickers v. Missouri Department of Public Safety

Decision date: January 2, 200820 pages

Summary

The Commission affirmed the Administrative Law Judge's decision denying workers' compensation benefits to Barbara J. Vickers for an alleged C. difficile infection contracted at the employer's laundry facility. The employee failed to produce competent evidence that she was actually exposed to C. difficile or contracted it from environmental contact at the workplace, and therefore did not meet her burden of proof.

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Caption

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION
FINAL AWARD DENYING COMPENSATION
(Affirming Award and Decision of Administrative Law Judge
by Supplemental Opinion)
Injury No.: 04-102704
Employee:Barbara J. Vickers
Employer:Missouri Department of Public Safety
Insurer:Missouri Office of Administration, administered
By the Central Accident Reporting Office (CARO)
Date of Accident:August 1, 2004
Place and County of Accident:Cameron, Missouri
The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided bysection 287.480 RSMo. Having reviewed the evidence, read the briefs, and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with theMissouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated March 5, 2007, as supplemented herein.In his award, the administrative law judge states that employee only “worked in unit B, one of four units” at employer’s facility. However, this is an incorrect statement. Employee performed services for employer in its laundry facility. Employer only had one laundry facility, and that facility handled all of employer’s laundry needs. As such, employee’s handling of laundry was not limited solely to laundry from unit B.We do not believe that this supplemental information changes the administrative law judge’s award. Employee still failed to produce competent evidence that she handled laundry from any patients infected withC. diff or that she contracted C. diff from environmental contact at employer’s facility. We are in agreement with the administrative law judge that employee “needed to prove that she was in fact exposed to C. diff while working for employer” and not merely show that she potentially had a greater risk of exposure.Therefore, the Commission still agrees with the ultimate conclusion reached by the administrative law judge that employee failed to meet her burden of proof to show that she sustained an injury by accident or occupational disease arising out of and in the course of her employment.The award and decision of Administrative Law Judge Robert B. Miner, issued March 5, 2007, is affirmed, and is attached and incorporated by this reference.Given at Jefferson City, State of Missouri, this _2 ^{ 0 } ^{ d } _ day of January 2008.LABOR AND INDUSTRIAL RELATIONS COMMISSION
William F. Ringer, Chairman
Alice A. Bartlett, Member
John J. Hickey, Member
Attest:
Secretary
AWARD
Employee: Barbara J. VickersInjury No.: 04-102704
Employer: Missouri Department of Public Safety
Insurer: Missouri Office of Administration, administered by the Central Accident Reporting Office (CARO)
Hearing Date: December 5, 2006Checked by: RBM
FINDINGS OF FACT AND RULINGS OF LAW
1. Are any benefits awarded herein? No.
2. Was the injury or occupational disease compensable under Chapter 287? No.
3. Was there an accident or incident of occupational disease under the Law? No.
4. Date of accident or onset of occupational disease: Alleged August 1, 2004.
5. State location where accident occurred or occupational disease was contracted: Alleged Cameron, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? No.
9. Was claim for compensation filed within time required by Law? Yes.
10. Was employer insured by above insurer? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee alleged that while working in employer’s Veteran’s home, employee became infected withclostridium difficile bacteria, (“C. diff”), causing her an infection resulting in a sub-total colostomy and ileostomy.
12. Did accident or occupational disease cause death? No Date of death? N/A.
13. Part(s) of body injured by accident or occupational disease: Alleged entire body, including colon, stomach and intestines.
14. Nature and extent of any permanent disability: Not determined. (Employee alleged total disability.)
15. Compensation paid to-date for temporary disability: None.
16. Value necessary medical aid paid to date by employer/insurer? None.
17. Value necessary medical aid not furnished by employer/insurer? None.
18. Employee’s average weekly wages: $344.54.
19. Weekly compensation rate: $229.69 for temporary total disability, permanent partial disability, and permanent total disability.
20. Method wages computation: By agreement.
COMPENSATION PAYABLE
21.Amount of compensation payable: None.
Unpaid medical expenses: None.

No weeks of temporary total disability (or temporary partial disability).

No weeks of permanent partial disability from Employer.

No weeks of disfigurement from Employer.

No permanent total disability benefits from Employer.

  1. Second Injury Fund liability: None

TOTAL: None.

  1. Future requirements awarded: None.

FINDINGS OF FACT and RULINGS OF LAW:

Employee: Barbara J. Vickers Injury No: 04-102704

Employer: Missouri Department of Public Safety

Insurer: Missouri Office of Administration, administered by the Central Accident Reporting Office (CARO)

Checked by: RBM

PRELIMINARIES

A final hearing was held on December 5, 2006, in St. Joseph, Missouri. Employee, Barbara J. Vickers ("Claimant") appeared in person and by her counsel, J. Michael Murphy and Mark Murphy. Employer, Missouri Department of Public Safety ("Employer") and Insurer, Missouri Office of Administration, administered by the Central Accident Reporting Office (CARO) ("Insurer") appeared by their counsel, Kristi L. Pittman. The Second Injury Fund is not a party to this claim. The parties acknowledged the previous consolidation of this case with a second case, Injury No. 04-109301. Both cases have been consolidated into Injury No. 04-102704.

STIPULATIONS

The parties stipulated to the following:

  1. On or about August 1, 2004, Employer was an employer operating under the provisions of the Missouri Workers' Compensation Laws and that their liability under said law was fully insured Insurer.
  2. On or about August 1, 2004, Claimant was an employee of Employer and was working under the provisions of the Missouri Workers' Compensation Laws;
  3. Employer had notice of the alleged injury and the claim for compensation was filed within the time prescribed by law;
  4. Claimant's average weekly wage was $\ 344.54 and the appropriate compensation rate for weekly benefits is $\ 229.69 for temporary total and permanent total disability benefits and $\ 229.69 for permanent partial disability benefits;
  1. No compensation has been paid by Employer.
  2. No medical aid has been furnished.

ISSUES

The parties agreed that the following issues were to be determined at the hearing:

  1. Medical causation and whether Claimant's alleged injury was causally related to an alleged accident or occupational disease.
  2. Employer/Insurer's liability for temporary total disability.
  3. Employer/Insurer's liability for future medical aid.
  4. Nature and extent of permanent partial disability.
  5. Employer/Insurer's liability for permanent and total disability benefits.

The parties agreed to the admission of the following Exhibits subject to the objections contained in the depositions:

Employee's Exhibits:

C. Deposition of Brian Hunt dated October 6, 2005.

D. Deposition of Lois Rider dated October 6, 2005.

E. Medical Records from:

Dr. William Irby

Dr. Gina Sprague

Surgical Associates of St. Joseph

Heartland Regional Medical Center

Heartland East Hospital.

F. Letter from Dr. Scott Folk dated February 7, 2006 and Dr. Folk's Curriculum Vitae.

G. Deposition of Mary Titterington dated June 19, 2006.

H. Curriculum Vitae of Mary Titterington.

I. High School Transcript of Barbara Vickers.

J. Vocational Report of Mary Titterington dated April 8, 2006.

K. Claimant's List of Litigation Expenses.

M. Medical Supplies.

(Exhibits A, B and L were not offered.)

Employer's Exhibits:

  1. Deposition of Dr. John Fried dated September 8, 2006.
  1. Deposition of Dr. Scott Folk dated July 18, 2006.
  2. Policy and Procedures from the Missouri Veteran’s Home.
  3. Policy and Procedures from the Missouri Veteran’s Home.

The parties agreed that Employer’s objections to questions posed to Dr. Folk (in Exhibit 2) beginning at line 9, page 30, through and including line 3 page 31, and Employer’s objections to the questions and answers beginning at line 15, page 32 through and including line 7, page 33 be sustained, and they are sustained. The parties further agreed that proposed Awards would be submitted on or before December 29, 2006. The parties further advised that past medical expense was not an issue in dispute.

TESTIMONY OF CLAIMANT

Claimant testified that she was born on July 19, 1941 and was 65 years old. She had a ninth grade education and lived in Cameron, Missouri. She was hired by Employer on April 22, 2004. She was terminated by Employer in September or October 2004. She was paid on the first and 15th days each month. She worked in Employer's laundry second shift, from 3:00 p.m. until 11:30 p.m. Five employees worked on the day shift. When she was first hired, she had no helper. Later, Jackie Wheeler came. Claimant had a weekend off every other weekend.

Claimant said her work environment was pretty warm, and was warmer than $70^{\circ}$ at times. The laundry was located in the basement. It had washers, dryers, and hoppers. Claimant picked up, sorted, folded, and hung clothes. She cleaned halls and swept floors. She laundered all personals, linens, pads, sheets, blankets, personal clothing, mops, rags, travel bibs, sweat suits, and bed pads. She laundered sheets and diapers that were soiled with human feces. She rinsed out the diapers.

When Claimant was first hired, she picked up dirty linens from each unit and threw them down a chute. She took bags, sorted items, and put them in hoppers, weighed them, and put them in the washing machines. There were four wings in the building-A through D. Laundry was red bagged if it contained blood. Laundry was wheeled to a chute and dropped to the floor below.

Nurses threw laundry at the end of a shift if they had time. Claimant wore gloves when she picked up laundry. She put on a gown and a mask, and kept her gloves on when she worked downstairs. She opened the bags and put the contents in hoppers. If the clothing had feces, she rinsed it before she put it in the hopper. Items in the hoppers were then put into the washing machines. There were four washing machines. Some of the items handled had urine on them. Claimant perspired down her face during work. Perspiration sometimes got on her lips. She wore protective clothing while loading items into the washers. She did not wear a hair net. Carts were used to move items to the laundry. At the end of the shift, she swept and mopped bathrooms, the laundry room, and the sorting room. She wiped down the washers and hoppers with bleach and water. She wore her protective clothing when she did cleaning. She used one gown per shift. She wore disposable paper masks. She used latex gloves in the laundry. There were some fans in the sorting room and the drying room in the basement. It was very hot in those areas. The director of nursing brought in a large fan in August or September.

Claimant weighed laundry before putting it into the washer. S

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