Edward McNamee v. K. York Electric, Inc.

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease: May 2, 2003.
5. State location where accident occurred or occupational disease was contracted: Laclede County, 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? Yes.
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 cut his finger while performing electrical work and the cut became infected.
12. Did accident or occupational disease cause death? Yes. Date of death? 5/17/2003.
13. Part(s) of body injured by accident or occupational disease: Left ring finger/death.
14. Nature and extent of any permanent disability: Death.
15. Compensation paid to-date for temporary disability: 0 .
16. Value of necessary medical aid paid to date by employer/insurer? $\ 127.00.
17. Value necessary medical aid not furnished by employer/insurer? $\ 90,915.34.
18. Employee's average weekly wages: $\ 675.70
19. Weekly compensation rate: $\ 450.47.
20. Method wages computation: By agreement.

COMPENSATION PAYABLE

Employee: Edward McNamee (Deceased) Injury No. 03-043156 Dependents: Denise McNamee (Widow) Employer: K. York Electric, Inc. Additional Party: Treasurer of Missouri, as custodian of the Second Injury Fund

Before the DIVISION OF WORKERS' COMPENSATION Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri Medical Fee Disputes: Lake Regional Hospital, MFD 300907; University of Missouri Hospitals and Clinics, MFD 301182; University Physicians. MFD 301236. Insurer: Federated Mutual Insurance Co. Hearing Date: March 30, 2007 Checked by: VRM/meb

The undersigned Administrative Law Judge conducted a Final Hearing in Lebanon, Missouri, on March 30, 2007. Attorney Deborah A. Malkmus represented Denise McNamee, the widow and sole dependent of the deceased employee, Edward McNamee (Claimant). Susan Turner represented K. York Electric, Inc., and its insurer, Federated Mutual Insurance Co. (Employer). Assistant Attorney General Andrew Lyskowski appeared on behalf of the Treasurer of the State of Missouri, as custodian of the Second Injury Fund.

Employer's motion to leave open the record to submit an additional deposition was denied on the record. To elaborate, the motion was denied for the following reasons:

The Claim for Compensation was filed on August 20, 2003. On September 13, 2006, the Division of Workers' Compensation received Claimant's request for Final Hearing. Employer filed no timely objection to the request for hearing. Consistent with the Division's practice, this matter was set for hearing within 120 days.

The original hearing date of January 8, 2007, was continued upon the agreement of the parties due to the serious illness of Employer's counsel. A new hearing date was set for February 14, 2007. That hearing date was continued upon agreement of the parties due to the illness of Claimant's counsel. The hearing was again reset and notice was forwarded for March 30, 2007.

On March 30, 2007, Employer's counsel for the first time advised the Administrative Law Judge that a deposition of a physician was scheduled, but not yet taken. Employer's counsel requested that the record be left open for the submission of the deposition. Counsel for both Claimant and the Second Injury Fund objected, suggesting that the deposition could spur the need for yet additional discovery.

All parties had sufficient notice of the hearing and ample time to prepare. The death had occurred more than three years ago. The request for hearing had been made six months earlier. Two continuances already had been granted. The third request for continuance was not made until the date of hearing, after all discovery was to have been completed. Employer did have at least one expert opinion to submit into evidence. Thus, mindful of the Division's desire to expeditiously resolve pending cases, recognizing the objection of the opposing parties, finding no extraordinary circumstances to further delay resolution of the case, and finding no undue prejudice to the Employer, the undersigned Administrative Law Judge denied the request to leave open the record for additional evidence.

The parties stipulated that Edward McNamee was an employee of K. York Electric, Inc., on or about May 2, 2003. K. York Electric, Inc., was an employer subject to the Missouri Workers' Compensation Law and was fully insured by Federated Mutual Insurance Company. Employee's average weekly wage at the time of the alleged accident was $\ 675.70 per week, yielding a rate of $\ 450.47 for both Temporary Total Disability and Death benefits. Employer does not contest notice or statute of limitations. Except for one medical bill, no benefits have been paid. Parties agree that venue in Lebanon, Missouri, was proper.

1. Did Employee Edward McNamee sustain an accident and injury arising out of and in the course and scope of his employment with K. York Electric, Inc., on May 2, 2003?
2. Is the condition for which benefits are being sought medically and causally related to Employee's employment of K. York Electric, Inc.?
3. Is Employer liable for medical expenses in the amount of $\ 90,915.34 ?
4. Is Employer liable for death benefits?

The following exhibits were offered on behalf of Claimant and admitted:

A. Marriage License

the job.

On Friday, May 2, 2003, while working at Brown Beverage, Mr. McNamee cut his left ring finger. On the way home from work that evening, Mr. McNamee mentioned the cut to his wife. Claimant said her husband told her that he nicked his finger on a nail. Claimant observed the cut on her husband's finger. Mr. York, the employer's chief executive, said there were no nails or wood on the project as the beer distributorship was housed in a steel and masonry building. I find credible Claimant's testimony that her husband told her he cut his finger at work and that she personally observed the cut.

Over the weekend, Mr. McNamee worked on his dock at his lake home. While he did not appear ill over the weekend, subsequent medical records document that "within hours" of the cut, the employee began evidencing signs of infection, such as swelling and burning (Claimant's Ex. K).

This is consistent with Claimant's testimony that her husband mentioned the cut on the way home from work; and treated his cut finger with warm water, Neosporin topical antibiotic, and bandages over the weekend.

Mr. McNamee returned to work on Monday, May 5, 2003, and made no complaints. On Tuesday, May 6, 2003, he again returned to work, but by the afternoon Mr. McNamee became very ill and advised both his wife and the employer by telephone that he needed to see a doctor. Claimant tearfully testified that her husband told her his hand was so swollen that he had to remove his wedding ring from the cut finger. Mr. McNamee also was vomiting and suffered diarrhea.

Due to the time of day, Mr. York suggested the name of a physician in Crocker, Missouri, who saw patients after normal business hours. Mr. McNamee went to Crocker to see the physician. That evening, however, the doctor failed to appear, possibly due to severe storms in the area. Mr. McNamee was unable to obtain treatment that day. He took some aspirin and went to bed.

The following day—Wednesday May 7, 2003—Mr. McNamee was too ill to work. Mr. York suggested to Mr. McNamee that he seek medical treatment at the Dixon Family Clinic because it was nearby. Mr. York thought Mr. McNamee had "the flu." Mr. York did not learn that Mr. McNamee was claiming he had been hurt at work until Mr. McNamee was in the hospital. Mr. York testified, however, that Mr. McNamee was an honest and trustworthy individual.

The Dixon Family Clinic reported that Mr. McNamee's chief complaint was "Cut finger Friday." The Clinic treated the employee with antibiotics and told him to return if his condition did not improve. Mr. York paid for the medical treatment at the Dixon Family Clinic. At 4:00 p.m., Mr. McNamee went to the Lake Regional Health Systems emergency room where he was admitted to the intensive care unit. Claimant said her husband told the emergency room physicians that he had cut his finger at work on Friday.

Numerous medical record entries of Lake Regional Health Systems substantiate Claimant's contention that her husband had cut himself at work on Friday May 2, 2003. For instance, the emergency physician record states:

"Nicked ring finger on metal at work - yellow." (Exhibit K). An infectious disease consultation report states that Mr. McNamee "sustained a cut on his ring finger of his left hand....last Friday, which was 05/02/2003." (Exhibit K). The discharge summary states, "He said that he was working and got a little abrasion; it became secondarily infected." (Exhibit K).

Mr. McNamee's condition continued to deteriorate after his admission and treatment at Lake Regional Health Systems. He experienced kidney and respiratory failure. By the weekend, Mr. McNamee was transferred by ambulance to the University Hospital and Clinics in Columbia, Missouri. There are multiple references in the records of the University Hospital of a cut injury occurring at work. Mr. McNamee died May 17, 2003. The death certificate states the cause of death was overwhelming sepsis, acute cellulitis, and incised wound of the hand.

Claimant said she updated the employer on a daily basis regarding her husband's condition. Mr. York visited Mr. McNamee in the hospital. But, one week after Mr. McNamee's death, the workers' compensation insurer informed Claimant that it was denying liability.

Claimant believed her husband was a relatively healthy individual prior to this incident. She conceded that he was overweight and had been diagnosed with pulmonary fibrosis, but she said he had no limitations. While she thought her husband had quit smoking, Mr. McNamee's employer said Mr. McNamee continued to smoke at work. Although he suffered some shortness of breath, Mr. McNamee took care of the boats and docks and performed most of the maintenance at his home. In performing this work at home, he would suffer nicks and cuts just as he did in his employment from time to time. Mr. McNamee successfully worked as an electrician for many years leading up to this injury in May 2003. He was working with no restrictions and he missed no work due to any preexisting condition.

Candace Hair was the office manager for K. York Electric, Inc. She completed the Report of Injury after speaking with Mr. McNamee on Thursday May 8, 2003, while he was at Lake Regional Hospital. Ms. Hair testified that she included on the Report of Injury what Mr. McNamee had told her regarding his nicked finger. The Report of Injury states that the injury occurred on May 2, 2003, and Employer was notified of the injury on May 6, 2003. Two versions of the Report of Injury were completed, but it appears that only one was filed with the Division of Workers' Compensation - Exhibit G. That version states that the area in which Mr. McNamee was working was "very dusty and dirty." I find it insignificant whether the work area was dirty or clean. The doctors indicated that the offending bacteria could be found on the skin and mucosa.

Two medical experts testified. They both indicated that the cut on the employee's left hand was a substantial factor leading to the development of cellulitis, sepsis, and multiple organ failure resulting in Mr. McNamee's death.

Dr. Shelby Kopp, testifying on behalf of Employer, opined that the reasonable cause of the employee's

sepsis was the growth of a large amount of methicillin resistant staph epidermis, a staphylococcus epidermis organism that is resistant to the drug methicillin, as noted on the May 10, 2003, lab results at Lake Regional Hospital. This organism was most likely on the employee's skin or could be in a dirty work environment. Dr. Kopp said the employee could have been equally exposed to the claimed abrasion or simple laceration, outside of and unrelated to his employment, just in everyday living. Dr. Kopp did not believe Mr. McNamee's work as an electrician put him at

greater risk of being exposed to the organisms that caused the sepsis than anywhere else. As Dr. Kopp explained, "He happened to be at work, okay, but I do not believe that work is a substantial cause of his death." (Ex. 1, p. 41). Dr. Kopp, however, wrote in his report as follows:

1. Were the abrasion and cellulitis substantial factors the cause of Mr. McNamme's [sic] death? Yes. I do believe that the skin disruption which allowed a pathogenic organism to enter the body resulting in infection and unfortunately was uncontrollable, is a substantial factor causing Mr. McNamme's [sic] death.

(Exhibit 1, Deposition Ex. A).

Claimant's expert witness, Dr. Shane Bennoch, opined that the laceration and subsequent infection of the finger was a substantial factor in the employee's death. He agreed that this was an unusual case in that the infection spread more rapidly than one might expect. Dr. Bennoch said the only reasonable explanation is that the offending bacteria were extremely aggressive and it all started from the infection in Mr. McNamee's finger. Dr. Bennoch noted that the employee previously had been taking no medication. He believed the pulmonary fibrosis had little, if anything, to do with the employee's death.

Related medical records and medical bills were admitted. Dr. Bennoch testified that the medical treatment of Mr. McNamee was reasonable and necessary treatment and that the medical bills incurred were reasonable and customary. Claimant seeks $\ 90,915.34 for the payment of medical bills and reimbursement for $\ 1,630.06 for her husband's cremation. Claimant admits that Employer paid the bill from the Dixon Family Clinic in the amount of $\ 127.00.

The instant case arises under the workers' compensation law in effect prior to August 28, 2005. See Lawson v. Ford Motor Co., 217 S.W.3d 345 (Mo. App. E.D. 2007) (holding that relevant portions of the 2005 amendments to Workers' Compensation Law are prospective). Thus, to succeed on her claim for compensation, Claimant must demonstrate that her husband sustained an injury by accident and his resulting death is clearly work related. To establish that the death was clearly work related, Claimant must show that work was "a substantial factor" in the cause of the employee's medical condition. § 287.020.2, RSMo 2000.

A "causative factor may be substantial even if not the primary or most significant factor. There is no brightline test or minimum percentage . . . defining 'substantial factor.'" Cahall v. Cahall, 963 S.W.2d 368-371 (Mo. App. E.D. 1998) overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W. 3d 220 (Mo. banc 2003). While an injury is not compensable merely because work is a triggering or precipitating factor, a work-related accident can be both a triggering event and a substantial factor. Loven v. Greene County, 94 S.W.3d 475, 478 (Mo. App. S.D. 2003). Moreover, in determining whether an injury and resulting death are compensable, doubts are to be resolved in favor the injured employee. Custer v. Hartford Insurance Co., 174 S.W.3d 602 (Mo. App. W.D. 2005).

Claimant has demonstrated through her credible testimony, as substantiated through the medical records and the report of injury, that her husband sustained a laceration to his left ring finger while working for Employer at Brown Beverage on Friday May 2, 2003. The expert witnesses agree that the laceration was a substantial factor in the employee's death. It was the laceration of the finger, occurring at work, which allowed the offending bacteria to enter the employee's body and eventually lead to the employee's death. Irrespective of whether the employee could have cut himself in a non-work environment, based on the law at the time of the injury, Claimant sustained her burden of demonstrating that her husband's injury and subsequent death occurred as a result of an accident at work. The death was clearly work related.

Employer argues that the instant case is not compensable because the term "injury" shall in no case be construed to include any contagious or infectious disease contracted during the course of employment, citing § 287.020.3(3). That provision states as follows:

The terms "injury" and "personal injuries" shall mean violence to the physical structure of the body and to the personal property which is used to make up the physical structure of the body, such as artificial dentures, artificial limbs, glass eyes, eyeglasses, and other prostheses which are placed in or on the body and such disease or infection as naturally results therefrom. These terms shall in no case except as specifically provided in this chapter be construed to include occupational disease in any form, nor shall they be construed to include any contagious or infectious disease contracted during the course of employment, nor shall they include death due to natural causes occurring while the worker is at work (Emphasis added).

This is not an occupational disease case. Mr. McNamee sustained an injury by accident at work. The explicit language in § 287.020.3(3), RSMo, provides that the original injury and the "infection as naturally results therefrom" is compensable.

Based on the precedent established in Bennett v. Columbia Health Care, 134 S.W.3d 84 (Mo. App. W.D. 2004), and Drewes v. Trans World Airlines, 984 S.W.2d 512, 514 (Mo. banc 1999), I must conclude that the employee's death arose out of and in the course of employment. In Bennett, for example, the employee's knee gave out when she was walking up a flight of stairs at work. Although the injury could have occurred during

normal activity outside of the workplace, the appellate court ruled that because the employee was performing tasks integral to her job, her injury was compensable and related to her employment. Likewise in the instant case, even though the employee could have cut his finger while performing some task at home and could have been exposed to the same type of bacteria, the fact remains he cut himself at work while performing electrical work essential to his job. No matter the source and location of the pathogen, the evidence was clear that the cut occurred in the workplace while performing job duties. This cut was the only known source permitting the pathogen to enter the employee's bloodstream.

Mr. McNamee died because aggressive bacteria entered his bloodstream through the cut he sustained at work. The death was not idiopathic.

Finally, Claimant has established that the injury occurred at a designated work location, during regular work hours, performing assigned job duties. Therefore, Claimant has met the statutory burden of proving that this injury occurred within the course and scope of employment.

The employee's death is not attributed to any unique, individual, or preexisting condition, but rather the aggressive nature of the bacteria which entered his bloodstream. The pathogen that entered the body is resistant to methicillin antibiotics. Medical records document the history of the injury. Both medical experts testified that the cut on the employee's left hand was a substantial factor leading to the employee's death. Dr. Bennoch agreed that the laceration and subsequent infection of the finger was a substantial factor in the employee's death. Dr. Kopp said he believed that the skin disruption which allowed a pathogenic organism to enter the body resulting in infection was a substantial factor in Mr. McNamee's death. Although both experts agreed that death was an unusual result from a minor injury, it is agreed that infections and cellulitis are known medical complications arising from lacerations. Cellulitis can lead to sepsis and sepsis can lead to multi organ failure (Exhibit 1; pages 41-42). Medical causation is established.

I reject any suggestion that the employee's death is not compensable because the employee suffered from pulmonary fibrosis. Dr. Bennoch, whose opinion I find credible, rejected any contention that the pulmonary fibrosis was a significant factor in employee's death.

The evidence meets the standard set forth in Martin v. Mid-America Farm Lines, Inc., 789 S.W.2d 105 (Mo Banc 1989), to prove the reasonableness and necessity of the bills incurred for the treatment of Mr. McNamee's injury. Three direct pay medical fee disputes were filed in this case by the following medical care providers: Lake Regional Hospital, MFD 300907; University of Missouri Hospitals and Clinics, MFD 301182; and University Physicians, MFD 301236. Although given notice, none of the three providers appeared at the final hearing. No award is made directly to the providers. The award is made to Claimant.

Pursuant to § 287.240(1), RSMo, Claimant is entitled to reimbursement of reasonable Funeral Expenses not to exceed $\ 5,000. Claimant is entitled to payment of the bill from Parker Funeral Service and Crematory for the cremation of Edward McNamee.

To obtain benefits from the Second Injury Fund, the employee must have a preexisting disability of such seriousness as to constitute a hindrance or obstacle to employment or reemployment. Leutzinger v. Treasurer of Missouri, 895 S.W.2d 592, 593 (Mo. App. E.D. 1995). Dr. Bennoch said the pulmonary fibrosis was not a significant factor in the employee's death. The employee was working without restrictions at the time of the work injury. There is no evidence that he was limited in any fashion in performing his job duties. There is no Second Injury Fund liability.

1) I award Claimant Funeral Expenses in the amount of $\ 1,630.06.

2) I award Claimant $\ 90,788.34 for the payment of Medical Expenses. The amount Employer paid to the Dixon Family Clinic has been subtracted from the amount claimed.

3) I award Claimant one and $4 / 7 weeks of Temporary Total Disability, totaling \ 707.88 for the period of May 7, 2003, through the date of the employee's death on May 17, 2003.

4) I award Claimant, as the sole dependent of Edward McNamee, 201 and $5 / 7 weeks of past due Death Benefits, totaling \ 90,866.23, for the period of May 18, 2003, through the date of hearing on March 30, 2007.

5) I award Claimant Death Benefits at the stipulated rate of $\ 450.47 per week beginning March 31, 2007, and continuing as prescribed by $\S 287.240$, RSMo.

6) Deborah A. Malkmus, Claimant's Attorney, shall have a lien in the amount of 25 percent of all amounts awarded, for necessary and reasonable legal services provided to Claimant.

Date: June 28, 2007

Made by: /s/ Victorine R. Mahon

Victorine R. Mahon

Chief Administrative Law Judge

Division of Workers' Compensation

A true copy: Attest:

/s/ Lucas Boling

Lucas Boling

Acting Director

Division of Workers' Compensation