Tia Galloway v. Petit Jean Poultry, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-107292

Employee: Tia Galloway

Employer: Petit Jean Poultry, Inc. (Settled)

Insurer: Liberty Mutual Insurance Company (Settled)

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence 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 the Missouri Workers' Compensation Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated January 5, 2010, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Victorine R. Mahon, issued January 5, 2010, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $29^{\text {th }}$ day of July 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Issued by the Missouri Division of Workers’ Compensation

Employee: Tia Galloway

Employee: Tia Galloway

Injury No. 06-107292

Dependents: N/A

Employer: Petit Jean Poultry, Inc. (settled)

Address: 2000 W. 1st Street, M. 10th Street, MIL-STEVE, MO 63101

www.epitjeanpoultry.com

Additional Party: Treasurer of Missouri, as custodian of the Second Injury Fund

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Insurer: Liberty Mutual Insurance Co. (settled)

Hearing Date: November 12, 2009

Checked by: VRM/db

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 June 28, 2006.
5. State location where accident occurred or occupational disease was contracted: Buffalo, Dallas 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: Claimant alleged she contracted MRSA in the left breast as a result of her exposure to cold water while working at the poultry processing plant.
12. Did accident or occupational disease cause death? No. Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: Alleged left breast and an aggravation of preexisting psychological conditions.
2. Nature and extent of any permanent disability: Settled with employer and its insurer.
3. Compensation paid to-date for temporary disability: Not applicable.
4. Value of necessary medical aid paid to date by employer/insurer? Not Applicable.
5. Value necessary medical aid not furnished by employer/insurer? Not Applicable.
6. Employee's average weekly wages: $\ 331.97.
7. Weekly compensation rate: $\ 221.31 (PPD and PTD).
8. Method of wage computation: By agreement.

1. Amount of compensation payable: Primary claim is settled.
2. Second Injury Fund liability: None.

TOTAL: None.

Issued by the Missouri Division of Workers’ Compensation

Employee: Tia Galloway

Employee: Tia Galloway

Injury No. 06-107292

Dependents: N/A

Employer: Petit Jean Poultry, Inc. (settled)

Address: 200107, 1100 W. 7th Street, MORNING, MO 63101

www.petitjeanpoultry.com

Additional Party: Treasurer of Missouri, as custodian of the Second Injury Fund

Insurer: Liberty Mutual Insurance Co. (settled)

Hearing Date: November 12, 2009

Checked by: VRM/db

The undersigned Administrative Law Judge conducted a final hearing in this case in Springfield, Missouri on November 12, 2009. The claim against the Employer Petit Jean Poultry, Inc., and its insurer, Liberty Mutual Insurance Company, settled immediately prior to the hearing. The record was left open for 30 days. On November 24, 2009, Claimant submitted the signed stipulation between Claimant and the Employer/Insurer, which was made a part of the record as exhibit "FFF." Those parties settled the primary claim for 45 percent of the body as a whole. The hearing was held to determine any liability of the Second Injury Fund. Attorney Randy Alberhasky represented Tia Galloway (Employee and Claimant). Assistant Attorney General Cara Harris represented the Second Injury Fund.

The parties stipulate that Tia Galloway was a covered employee of Employer Petit Jean Poultry, Inc., a fully insured entity, which was subject to the Missouri Workers’ Compensation Law on June 28, 2006. The parties agree there is no issue with respect to venue, jurisdiction, notice, or statute of limitations. Employee’s average weekly wage was $\ 331.97, yielding a Permanent Partial Disability and Permanent Total Disability rate of $\ 221.31.

1. Is Claimant's injury medically and causally related to the work she performed for Petit Jean Poultry, Inc.?
2. Did Claimant's alleged injury arise out of and in the course of her employment?
3. If the preceding questions are answered in the affirmative, does the Second Injury Fund have liability for Permanent Total Disability or enhanced Permanent Partial Disability?

The following exhibits, offered by Claimant, were admitted:

A. Bolivar Family Care Center, 58 pages, certified 6/6/2007

B. Bolivar Family Care Center, 102 pages, certified 1/28/2008

C. Bolivar Family Care Center, 104 pages, certified 10/30/2009

D. Citizens Memorial Hospital, 245 pages, certified 7/9/2007

E. Citizens Memorial Hospital, 222 pages, certified 10/9/2007

F. Citizens Memorial Hospital, 42 pages, certified 1/22/2008

G. Oxford Healthcare, 74 pages, medical records and bills, certified 8/13/2007

H. Pain Management Clinic, 7 pages, certified 2/5/2008

I. Parkview Surgeons, 20 pages, certified 10/2/2007

J. Parkview Surgeons, 4 pages, certified 1/25/2008

K. Pomme De Terre Wellness Clinic, 10 pages, certified 1/28/2008

L. St. John's Clinic, Infectious Disease, 52 pages, certified 7/9/2007

M. St. John's Clinic, Plastic Surgery, 71 pages, certified 7/9/2007

N. St. John's Clinic, General \& Specialty Surgery, 18 pages, certified 7/10/2007

O. St. John's Clinic, SGC, Dr. Corsolini, 3 pages, certified 8/5/2008

P. St. John's Health Center, 726 pages, certified 7/19/2007

Q. St. John's Health Center, 575 pages

R. St. John's Physical Therapy, 19 pages, certified 8/14/2008

S. Bolivar Family Care Center, 122 pages, certified 11/2/2009

T. Citizens Memorial Hospital, 30 pages, certified 3/30/2007

U. St. John's Clinics, 17 pages, certified 5/11/2007

V. St. John's Clinics, 4 pages, certified 7/9/2007

W. St. John's Clinics, 4 pages, certified 9/29/2008

X. St. John's Health Center, 65 pages, certified 5/1/2007

Y. St. John's Health Center, 6 pages, certified 7/9/2007

Z. St. John's Health Center, 2 pages, certified 9/18/2008

AA. Pain Management, 2 pages, certified 7/19/2007

BB. Parkview Surgeons, 4 pages, certified 10/15/2008

CC. Pomme de Terre Clinic, 3 pages, certified 10/2/2008

DD. Woods Pharmacy. 2 pages, certified 7/12/2007

EE. Woods Pharmacy, 4 pages, certified 9/8/2008

FF. Dr. Franks, certified 6/13/2008

GG. Claim, October 20, 2006

HH. Claim, June 14, 2007

II. Amended Claim, January 16, 2008

JJ. Answer, Employer/Insurer, December 5, 2006

KK. Answer, Second Injury Fund, June 29, 2007

LL. Answer, Employer/Insurer, July 6, 2007

MM. Answer, Second Injury Fund, January 30, 2008

NN. Answer, Employer/Insurer, February 1, 2008

BBB. Pictures (7)

CCC. Marjory Moore, Safety Counsel, including Exhibits 1-4

DDD. Dr. Norbert Belz, including Exhibits 1-3

EEE. Resume of Dr. Franks

FFF. Contract of Settlement

The following exhibit, offered by the Second Injury Fund, was admitted:

I. Deposition of Dr. Parmet

Tia Galloway, Claimant, is 37 years old. She is married and raises six children. She also bore a child while she was a teenager whom she gave up for adoption. Claimant had a tumultuous childhood, being a victim of abuse and sexual assault. She has had an extensive history of mental illness, including schizophrenia and bi-polar disorder, for which she was hospitalized for several months. She left treatment against medical advice. According to one of Claimant's experts, Dr. Norbert Belz, Claimant's pre-existing mental condition was severe and included self-mutilation. Through it all, she managed to graduate from high school. She has no post-secondary education.

Claimant held a job at Shoney's Restaurant, but experienced problems working with others. She also worked in a day care and in customer service for AT\&T from 1994-1995 before

marrying David Galloway. He served in the armed forces, during which time Claimant did not work. Claimant indicated that she had suffered anxiety at being left alone while her husband was training in the military.

After David Galloway's military discharge, Claimant and her spouse engaged in illegal drug activity which led to their imprisonment. While in prison, Claimant received substance abuse and psychological counseling. She was placed on medications which helped stabilize her mental condition.

Upon the couple's release from prison, Claimant obtained a job in a group home for mentally challenged individuals. Claimant's spouse came to live with her, but Claimant eventually quit that job to obtain other employment that would allow her to reunite with her children. She found a job working at Pennington Seed through an employment agency.

The job at the seed company was very repetitive in nature. David Galloway testified that Claimant often called him during the day, apparently seeking reassurance. Once a month, she would have to take a day off from work to travel to Kansas City to have her psychiatric medications monitored and adjusted. The seed company job ended in 2004, however, when she was injured at work. A drug test was administered during treatment. Claimant was not thereafter allowed to return to work. Claimant indicated that she preferred to stay at home in the summer months anyway.

In 2005, Claimant went to work for the Petit Jean poultry plant. The job was highly repetitive in nature; she worked on a line sorting and cutting chicken parts. Claimant expressed some anxiety about the job, and again called her husband frequently for reassurance. But, she eventually was successful in her position.

The plant was quite cold in order to keep the chicken from spoiling. Claimant worked on one of several processing lines. Claimant wore her own clothes to work, but she was required to put on an apron, gloves, and a plastic smock over her clothing. This protective clothing, however, did not prevent Claimant from becoming wet. The processing line was chest high. Claimant was splashed with water as she grabbed the chicken to pull it toward her. Within a couple of hours of her 8 -hour shift, Claimant said she would be soaked through her clothing, despite the protective smock and apron. Even when she could change gloves and smocks at break time her t-shirt and undergarment were wet. At the end of her shift, Claimant changed all of her clothes except her bra. She would then travel home. She showered after she arrived home.

Claimant testified that in June 2006, she felt a knot on her breast. Her husband thought it was a pimple, but Claimant said it did not feel like that. She applied heat and ice, but when the knot began to grow she showed it to a co-worker who had had breast cancer. The co-worker indicated that the area did not resemble cancer, and suggested that Claimant see the company nurse. The plant nurse immediately referred Claimant to a physician. Claimant then saw Drew Shoemaker, M.D.

Regarding the onset of Claimant's condition, Drew Shoemaker, M.D., made the following notation on June 29, 2006:

This is a 33-year-old, African-American female who presented [at] the office yesterday with complaint of having had some pain in her left breast which had been going on for approximately the last day or so. She states she has had numerous small lesions on her breasts and she had picked those but she has had those get a little bit infected in the past but those had easily transiently gotten better. Yesterday, she presented with her breast being more tender than usual. She was given a gram an Ancef last evening and Augmentin 875 po bid. She has taken both of those. She presents today with her breast simply not improved at all.

(Exibit Q). Dr. Shoemaker referred Claimant to the hospital.

At Citizens Memorial Hospital in Bolivar, Dr. Linda Milholen noted on June 29, 2006:

This lady is a 31-year-old African-American female who presented to Dr. Shoemaker's office the day prior to admission with pain in the left breast. This had been going on, the history on the History and Physical, says about a day or so. It has actually been going on for 10 days. She says she had numerous small lesions on her breasts. She has picked them and they "got infected."

(Exhibit D). Dr. Milholen said Claimant's left breast "is erthematous and discolored with pururic lesions inferolaterally. These are purplish in color. There is no particular heat or erythema." (Exhibit D). Dr. Milholen believed Claimant suffered from cellulitis, possibly associated with toxic shock syndrome, with strep as the etiology.

Dr. William Donnell also reported on June 29, 2006 that Claimant's condition was unstable. He noted that Claimant was at risk for septic shock and renal failure.

Claimant thereafter was transported by air to St. John's Medical Center in Springfield, Missouri. The St. John's medical transfer record notes that Claimant had a three day history of not feeling well "and longer history of cellulitis to left breast." (Exhibit Q)

Claimant saw a number of physicians upon her arrival at St. John's Medical Center in Springfield. The admitting physician, Dr. Robert P. Saylor, ordered an ultrasound, which was performed on June 30, 2006. The ultrasound, read by Dr. Kathleen Gafarian, noted severe swelling and warmth in the left breast. There was an "oval area which had a very deep purple hue to the skin and extended over predominantly the lateral aspect of the left breast from the 2 to 5 o'clock location." Dr. Gafarian suggested that Claimant had "liquefactive necrosis of tissue." Dr. Gafarian "strongly recommended" a surgical and/or infectious disease consultation (Exhibit Q).

Dr. Saylor referred Claimant to Dr. John Bumberry. Dr. Bumberry reported on June 30, 2006, that he could see "no obvious drainage or source for this cellulitis or infection." He reported "No bulla, pustules or drainage appreciated." (Exhibit Q). He believed that Claimant suffered from necrotizing fasciitis and he recommended emergent mastectomy.

Claimant then was referred to Dr. Eric J. Fulnecky, who likewise diagnosed necrotizing fasciitis of the left breast requiring mastectomy. Regarding the onset of Claimant's symptoms, Dr. Fulnecky reported:

Per the husband's report the patient had developed small area of redness on her left breast that she had been scratching in the days leading up to the swelling in her breast. This apparently progressed and was noted both in Bolivar and here on admission and has now advanced significantly in size.

(Exhibit L). Claimant's left breast was then removed. She eventually was diagnosed with community acquired MRSA (Methicillin-resistent Staphylococcus aureus).

Claimant does not recall being flown on a helicopter to the hospital in Springfield. Her last memory prior to the mastectomy was on June 28, 2006, when she showed a red bump on her breast to a friend because she was concerned it might be cancer. Claimant required numerous surgeries to reconstruct her breast following the MRSA infection. She never returned to employment.

Claimant's mental health deteriorated after the MRSA infection. She now has increased anxiety with fear of germs. Her fear of public situations was aggravated. She now spends her days at home, takes the children to and from school and visits her husband at work during the day. She keeps her bedroom extremely clean and has a fear of becoming sick again.

Dr. Nobert Belz stated that for MRSA to occur there must be a susceptible host with a skin disruption and the presence of the bacteria antibiotic resistant Staphlyococcus aureaus. Dr. Belz believed the MRSA bacteria could have been present anywhere. Dr. Belz believed Claimant was a susceptible host because she developed a skin condition known as Chilblains or pareno, due to her work.

Chilblains may occur in a cold and damp atmosphere. Dr. Belz stated that the condition causes vassal constriction in the vessels that feed the skin, causing skin ischemia and the development of blisters, vesicles, and papules (red bumps). When Claimant scratches these blisters, it was a "perfect setup for infection" such as MRSA. Dr. Belz believed that Claimant's work made her a susceptible host because of the cold, wet water and occlusive dressing she wore daily over her breasts caused the Chilblains. Although Claimant had some other risk factors because of her large breast size and prior reduction surgery, it was not significant.

Dr. Belz admitted that initially he was skeptical that Claimant's MRSA infection could be related to her employment, but he determined it was work-related because of the occlusive dressing she was required to wear at work:

If we take an apron and a wet cloth and put that - talking about the apron she has on, which is cloth and then like a plastic over it, so it's waterproof. If you take a wet wash cloth and then take that apron like that, over that and wrap it, it becomes an occlusive dressing. So, what she's done, she's formed an occlusive dressing on her breasts. Pendulous breasts, number one. Breasts that have already been surgerized, number two. So her lymphatic - it's not going to be what it is in a normal breast. And she has this occlusive dressing and a cold, damp environment, and she had developed what is called Chilblains, C-h-i-l-b-l-a-i-n-s. And otherwise known as pareno, p-a-r-e-n-o. And this is a situation where the cold and damp causes vasal constriction in the vessels that feed the skin, the dermis, in particular. And these will vasal constrict and then at times vasal dilate. But, particularly, vasal constriction, it will cause skin ischemia. The epidermis becomes ischemic. The dermis becomes ischemia. And you'll actually develop little blisters, vesicles, papules, which are bumps, red bumps. And this will

become parene, that is, it'll itch. And this did itch. And she would scratch this area.

In summary, Dr. Belz believes Tia Galloway's work exposure to cold water caused her to develop Chilblains and then ischemia, which resulted in blisters, vesicles, or papules, which itched. This itching caused scratching. The scratching disrupted the skin and allowed the MRSA to enter Claimant's body. Dr. Belz stated that but for her employment at Petit Jean she would not have developed MRSA.

Dr. Belz further indicated that Claimant's prior psychiatric condition was sufficiently severe to be a hindrance or obstacle to employment. He rated Claimant has having a 50 percent Permanent Partial Disability due to the preexisting psychological condition. He believed Claimant reached maximum medical improvement for the primary injury on December 12, 2007. He said the prior and last disability combined in excess of the simple sum. He did not believe Claimant was capable of work in the open labor market. He opined that Claimant's Permanent Total Disability is the result of the combination of her prior and work-related psychological disabilities, not because of the disability from the MRSA exposure by itself.

Dr. Allen Parmet evaluated Claimant at the request of Employer. His deposition (Exhibit I) was entered into evidence on behalf of the Second Injury Fund. He agreed with the diagnosis of the treating physicians and that of Dr. Belz that Claimant developed MRSA in her left breast. He did not agree that Claimant contracted MRSA as a result of her job at Petit Jean.

Dr. Parmet researched and found no history of animal to human transmission of MRSA. He was aware of nothing showing that chicken in the United States had ever been found to have MRSA. Dr. Parmet testified that 50 percent of all breast infections in the United States are due to MRSA, and it is the cause in even a larger percentage overseas. Dr. Parmet testified that anything, even a small as a scratch, pimple, or infected hair can be the source for a MRSA

infection to develop. He said community acquired MRSA infections are now "extremely common" (Exhibit I, p. 17). He noted that it was common for athletic teams to have breakouts of MRSA. "So there's physical activities causing these vigorous injures, damaging the skin and allowing bacteria to enter." (Exhibit I, p. 17-18).

Dr. Parmet disagreed with Dr. Belz that Claimant had developed Chilblains from her employment at Petit Jean, and that such condition provided the porthole through which the MRSA pathogen entered Claimant's body. Dr. Parmet said Chilblains, which he personally had experienced in the past, requires a minimum of 48 to 72 hours of cold and wet conditions before the skin will break down sufficiently to allow the entry of bacteria. He believed Claimant's job duties were insufficient to allow for the development of Chilblains. He believed Claimant may have become infected through some sort of disruption on the surface layer of the skin by a scratch or abrasion, or through a furuncle (infected hair follicle) which penetrates deeply into the skin. ${ }^{1}$

Dr. Parmet assigned a one to two percent Permanent Partial Disability to the body as a whole as a result of the MRSA infection. Dr. Parmet also felt that all of her psychological dysfunction predated the MRSA exposure.

Dr. Ken Wesley Franks, a clinical psychologist, examined Claimant on June 13, 2008. He testified live at the hearing. He opined that Claimant has borderline intelligence and no signs of malingering. He said Claimant had pervasive cognitive problems. While he could not state whether that impairment predated or was caused by the MRSA exposure and associated

[^0]

[^0]: ${ }^{1}$ In her brief, Claimant extensively cites the cross examination of Dr. Parmet regarding a statement in his report wherein he purportedly indicated that if the Claimant was continuously soaked "this would have provided a source of skin infection." (Ex. I, Depo. p. 37). Employer's counsel objected because Claimant's counsel failed to read the entire sentence and thus, misconstrued and misstated the physician's report. Such objection is well taken. Moreover, Dr. Parmet's opinion is sufficiently clear in his deposition.

problems, he agreed that there was evidence suggesting that Claimant suffered a traumatic brain injury during her hospitalization for MRSA and related disease process. He concluded that Claimant suffered from Post Traumatic Stress Disorder that had been caused or aggravated by the MRSA exposure, with Chronic Cognitive Disorder. Predating the work injury, she suffered from disabilities relating to Bipolar II Disorder, Episodic Depression with moderate psychotic features and personality disorder. He assigned to her a total psychological impairment rating of 40 percent, with 15 percent attributable to the MRSA exposure and the remaining 25 percent predating the work injury.

This claim arises under the amendments to the Workers' Compensation Law that became effective August 28, 2005. The provisions applicable to this claim include the following:

Section 287.020.3(5) RSMo Cum Supp. 2005, defines the term injury:

(5) 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 to replace the physical structure 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 the employment, nor shall they include death due to natural causes occurring while the worker is at work.

Occupational disease is defined in §287.067 RSMo Cum Supp. 2005, as

follows:

1. In this chapter the term "occupational disease" is hereby defined to mean, unless a different meaning is clearly indicated by the context, an identifiable disease arising with or without human fault out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the diseases

follow as an incident of an occupational disease as defined in this section. The disease need not to have been foreseen or expected but after its contraction it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.

1. An injury by occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-today living shall not be compensable.
2. Any employee who is exposed to and contracts any contagious or communicable disease arising out of and in the course of his or her employment shall be eligible for benefits under this chapter as an occupational disease.

The term "prevailing factor," as used in the above statute, and as defined in

§ 287.030.3(1) RSMo Cum Supp. 2005, is the "primary factor in relation to any other factor, causing both the resulting medical condition and disability." Claimant bears the burden of proving that her last employment at Petit Jean Poultry in June 2006 was the primary factor in relation to any other factor in causing both the resulting medical condition and disability that became the MRSA infection which developed on her left breast. Employee must do so with medical evidence. Jacobs v. City of Jefferson, 991 S.W.2d 693, 698 (Mo. App. W.D. 1999) (overruled in part on other grounds).

Section 287.800 RSMo Cum Supp. 2005, also now requires that the Workers' Compensation Law be construed "strictly" and the evidence be weighed impartially, without giving any party the benefit of doubt.

Claimant contends she sustained an injury or developed occupationally-induced Chilblains because of her exposure to cold and wet conditions at work and occlusive dressing, which in turn caused her to develop ischemia, which resulted in blisters or papules or a similar

skin condition, causing Claimant to scratch and self-inoculate herself with bacteria which happened to be MRSA. I agree with Claimant that she need not prove that the MRSA was actually contracted from the chickens or some other source at work. I also agree that the cold, wet environment was a risk to which she was not exposed outside of work. But based on all of the medical records near or at the time of Claimant's initial medical treatment and hospitalization, in conjunction with the opinion of Dr. Parmet, I conclude that Claimant did not develop Chilblains at work. Without the development of Chilblains, the MRSA, which both doctors agree is ubiquitous, could have entered Claimant's body in any number of ways.

Dr. Parmet did not agree with Dr. Belz that Claimant developed Chilblains as a result of her work at Petit Jean and that such condition resulted in ischemia. Dr. Parmet personally had experienced Chilblains. His opinion is credible that Chilblains (breaking down of the skin) does not occur from cold, wet conditions unless someone is exposed to those conditions for at least 48 hours, and usually 72 hours. Here, Claimant may have been wet during a significant portion of her work shift, but she removed her bra and showered shortly after her eight hour shift. Dr. Parmet did not believe Chilblains would occur under such conditions. He did not believe that Employee's work at Petit Jean Poultry made her a susceptible host to acquiring the MRSA infection. Dr. Parmet believed the MRSA could have entered Claimant's body through a furuncle or infected hair follicle.

Dr. Parmet's opinion as to how Claimant may have contracted MRSA appears logical, particularly given Dr. Parmet's testimony that community acquired MRSA is common, and the number of breast lesions in the United States that are due to MRSA.

Moreover, not one medical record entry made at the time of Claimant's initial treatment and hospitalization indicates that Claimant presented with what appeared to be Chilblains. None

of the records from Dr. Shoemaker, Citizens Memorial Hospital, Dr. Saylor, Dr. Gafarian, Dr. Bumberry, or Dr. Fulnecky, made any suggestion that Claimant had Chilblains. If Claimant's lesions resulted from Chilblains, certainly one of the many treating physicians would have suggested such condition as a source for infection. In fact, Dr. Bumberry wrote that he could not find an obvious source for the infection.

Based on the medical records, and the logical explanation given by Dr. Parmet, I reject Dr. Belz's opinion. I conclude, based on all of the evidence in the record, weighing such evidence impartially, and without giving any party the benefit of the doubt, that Claimant's work was not the primary or prevailing factor in the condition and disability that became a MRSA infection in Claimant's left breast. I conclude that the Claimant's condition is not medically causally related to her work at Petit Jean. I further conclude that Claimant's condition and disability did not arise out of and within the course of her employment with Petit Jean.

The Second Injury Fund has no liability. The fact that Claimant reached a compromise settlement with her Employer for her workers' compensation claim is not binding on the Second Injury Fund and makes no difference in the outcome of this claim. Totten v. Treasurer of the State of Missouri, 116 S.W.2d 624 (Mo. App. E.D. 2003).

The claim against the Second Injury Fund is denied. Because these conclusions are dispositive, I do not decide the remaining issues.

Date: January 5, 2010

Made by: /s/ Victorine R. Mahon

Victorine R. Mahon

Administrative Law Judge

Division of Workers' Compensation

Issued by the Division of Workers' Compensation

Employee: Tia Galloway

Injury No.06-107292

A true copy: Attest:

/s/ Naomi Pearson

Naomi Pearson

Division of Workers' Compensation