Georgianna Diener v. Schreiber Foods, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-148878

Employee: Georgianna Diener

Employer: Schreiber Foods, Inc.

Insurer: Zurich American

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 corrected award and decision of the administrative law judge dated August 16, 2011, and awards no compensation in the above-captioned case.

The corrected award and decision of Administrative Law Judge Margaret Ellis Holden, issued August 16, 2011, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 25^{\text {th }}$ day of May 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

John J. Hickey, Member

Attest:

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed and employee should be awarded past medical expenses and future medical care, temporary total disability benefits and permanent total disability benefits.

Facts

Employee worked for employer as a plant worker making and processing cheese from September 2000 until March 2007. As part of employee's duties in the casting department, she was required to consume the cheese every half hour in order to fill out a quality control form indicating criteria such as color, texture, and taste.

Employee testified that the plant had several prior incidents of unsanitary conditions. Employees were sometimes sent home after the facility failed tests conducted by the United States Department of Agriculture.

In late 2004, employee began experiencing symptoms of chronic diarrhea, cramping, and bloating. A culture of her stool was performed by Freeman Hospital and it revealed that she had a bacterial infection of Hafnia.

Quality Assurance Advisors for employer testified that employer does not specifically test for the presence of Hafnia in its facility.

Employee resumed her job with employer, but continued to have severe intestinal problems that involved uncontrolled bowel movements. Employee treated with numerous health care providers for this condition. Ultimately, she saw a gynecologist in St. Louis, Missouri who informed her that her condition involved a gastrointestinal condition. Employee then began treating with Dr. Weinstock, a board certified gastroenterologist in St. Louis, Missouri.

Dr. Weinstock opined that employee acquired a rare bacterial infection called Hafnia from her work in the cheese plant. Dr. Weinstock further opined that this Hafnia infection caused her to develop "post-infection irritable bowel syndrome, which is a motility disturbance of the small intestine, which results in overgrowth of her normal bacteria, and complications of diarrhea, bleeding and abdominal discomfort, and it also caused Crohn's disease." Dr. Weinstock concluded that employee has been unable to work since at least October 27, 2006.

Mr. Swearingen performed a vocational rehabilitation evaluation of employee and concluded that "[g]iven the nature and extent of her symptoms, [employee] could not perform work tasks as normally expected to be able to maintain competitive employment. [Employee] is totally disabled as a consequence of her chronic illness and its symptoms."

Improve: Georgianna Diener

- 2 -

Dr. Weinstock, employee's treating physician, credibly testified that employee was exposed to Hafnia in the workplace and that her exposure to the same was a substantial factor in causing her gastroenterological condition.

The administrative law judge dismissed the testimony of Dr. Weinstock in favor of the testimony of Dr. Burmeister. I find that this was in error. Dr. Weinstock was employee's treating physician and is board certified in gastroenterology. Dr. Burmeister, on the other hand, was hired solely for the purpose of testifying for this claim. Dr. Burmeister unequivocally denied any connection between Hafnia and dairy products. However, as provided by employee, there is a wealth of scientific/medical literature recognizing the connection between Hafnia and dairy products and the illnesses it causes humans. For the foregoing reasons, I find the opinions of Dr. Weinstock more credible than those of Dr. Burmeister.

Section 287.067.1 RSMo defines an occupational disease as:

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.

In examining occupational diseases, the courts have stated that the determinative inquiry involves two considerations: "(1) whether there was an exposure to the disease which was greater than or different from that which affects the public generally, and (2) whether there was a recognizable link between the disease and some distinctive feature of the employee's job which is common to all jobs of that sort." Hayes v. Hudson Foods, Inc., 818 S.W.2d 296, 300 (Mo. App. 1991), overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003).

Employee worked at a cheese processing plant that had a history of numerous sanitary violations. Employee's job duties included tasting the cheese to test for qualitative control criteria. In late 2004, employee began experiencing numerous gastroenterological problems. Employee's treating physician testified within a reasonable degree of medical certainty that employee was exposed to Hafnia while working for employer and that this exposure caused her gastroenterological condition.

Based upon the foregoing, I find that employee's exposure to Hafnia was greater while working for employer than that which affects the public generally and that there is a recognizable link between her gastroenterological condition and her tasting of the cheese in the processing plant. In sum, I find Dr. Weinstock's opinions credible and find that employee was exposed to Hafnia while working for employer and that this exposure caused her gastroenterological condition, or occupational disease.

Injury No.: 04-148878

Employee: Georgianna Diener

- 3 -

**Conclusion**

In light of the foregoing, I find that employee should be awarded past medical expenses and future medical care, temporary total disability benefits, and permanent total disability benefits. As such, I would reverse the award of the administrative law judge and award employee the same.

Therefore, I respectfully dissent from the decision of the majority of the Commission.

John J. Hickey, Member

Employee: Georgianna Diener

Injury No. 04-148878

Dependents: N/A

Employer: Schreiber Foods, Inc.

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

Insurer: Zurich American

Hearing Date: $\quad 5 / 11 / 10$

Checked by: MEH

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: N/A
5. State location where accident occurred or occupational disease was contracted: ALLEGED JASPER 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? 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: N/A
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: N/A
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: NONE
16. Value necessary medical aid paid to date by employer/insurer? NONE

1. Value necessary medical aid not furnished by employer/insurer? NONE
2. Employee's average weekly wages: $\ 599.87
3. Weekly compensation rate: $\$ 399.91 / 354.05$
4. Method wages computation: BY AGREEMENT

1. Amount of compensation payable:

Unpaid medical expenses: NONE

0 weeks of temporary total disability (or temporary partial disability)

0 weeks of permanent partial disability from Employer

0 weeks of disfigurement from Employer

Permanent total disability benefits from Employer beginning N/A, for Claimant's lifetime

1. Second Injury Fund liability: Yes No X Open

0 weeks of permanent partial disability from Second Injury Fund

Uninsured medical/death benefits: N/A

Permanent total disability benefits from Second Injury Fund:

weekly differential (0) payable by SIF for O weeks, beginning N/A

and, thereafter, for Claimant's lifetime

TOTAL: SEE AWARD

1. Future requirements awarded: NONE

Said payments to begin N/A and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

JOSEPH WALSH

Employee: Georgianna Diener

Injury No. 04-148878

Dependents: N/A

Employer: Schreiber Foods, Inc.

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

Insurer: Zurich American

Hearing Date: 5/11/10

Checked by: MEH

The parties appeared before the undersigned administrative law judge on May 11, 2010, for a final hearing. The claimant appeared in person represented by Joseph Walsh. The employer and insurer appeared represented by Patricia Musick and Josh Decker. The Second Injury Fund appeared represented by Christina Hammers. Memorandums of law were filed by June 10, 2020.

The parties stipulated to the following facts. On or about November 4, 2004, Schreiber Foods, Inc., was an employer operating subject to the Missouri Workers' Compensation Law. The employer's liability was fully insured by Zurich American. On the alleged injury date of November 4, 2004, Georgianna Diener was an employee of the employer. The claimant was working subject to the Missouri Workers' Compensation Law. The employment disease occurred in Jasper County, Missouri. The claimant notified the employer of her injury as required by Section 287.420 RSMo. The claimant's claim for compensation was filed within the time prescribed by Section 287.430 RSMo. At the time of the alleged occupational disease the claimant's average weekly wage was $\ 599.87, which is sufficient to allow a compensation rate of $\ 399.91 for temporary total disability compensation, and a compensation rate of $\ 354.05 for permanent partial disability compensation. No temporary disability benefits have been paid to

the claimant. The employer and insurer have pai