Marilea Navis v. Premium Standard Farms, Inc.

(Modifying Award and Decision of Administrative Law Judge)

Injury No.: 02-158878

Employee: Marilea Navis

Employer: Premium Standard Farms, Inc.

Insurer: Travelers Indemnity Company of America

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. We have reviewed the evidence, read the parties' briefs, heard the parties' arguments, and considered the whole record. Pursuant to $\S 286.090$ RSMo, we modify the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The administrative law judge concluded employee is entitled to future medical treatment, ordering employer to provide employee with future medical treatment as may be reasonable and necessary to cure and relieve the condition caused by her occupational disease.

We disagree that employer is liable for future medical treatment. Section 287.140.1 RSMo provides, in relevant part, as follows:

In addition to all other compensation, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.

On the topic of future medical treatment, employee advanced testimony from Dr. Beller, who opined that employee will require regular follow-up care in the future, including periodic pulmonary evaluation, chest x-rays, and pulmonary function tests. Dr. Beller opined that employee may also benefit from inhaled bronchodilator medications. On cross-examination, Dr. Beller conceded that employee's pneumonia resolved, and opined that some of the treatment employee will need in the future is related to employee's preexisting chronic obstructive pulmonary disorder (COPD), rather than the effects of the work injury. Dr. Beller opined that 50 % of the treatment employee needs will probably be related to the COPD, while the other 50 % will be related to the effects of the work injury.

Employer, on the other hand, presented testimony from Dr. Barkman, who opined that employee will not require future medication or follow-up for the pneumonia, which has

resolved. Dr. Barkman recommended some future treatment, but opined that this is needed for employee's COPD.

After careful consideration, we find more persuasive the opinion of Dr. Barkman on this issue. We adopt his opinion (and so find) that employee does not have a need for future medical treatment as a result of her work injury, and that any future treatment employee will require is related to her COPD. Given our findings, we conclude that employee failed to establish a reasonable probability that she has a need for future medical treatment that flows from the work injury. Accordingly, we conclude that employer is not required under $\S 287.140$ to provide future medical treatment.

We modify the award of the administrative law judge as to the issue of future medical treatment. The employer is not obligated to provide future medical treatment.

The award and decision of Chief Administrative Law Judge Nelson G. Allen, issued August 27, 2012 is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fees herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\qquad 18 ^{\text {TH }}$ day of July 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

DISSENTING OPINION FILED

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Marilea Navis

Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I am convinced the decision of the administrative law judge awarding benefits to employee was in error, and should be reversed.

Employee alleges she was exposed to pulmonary disease while power washing animal stalls, pens, and pits in employer's hog farm. On April 30, 2002, employee was admitted to the Wayne County Hospital with complaints of worsened respiratory functioning. A chest xray revealed substantial pneumonia in both lungs. Owing to the seriousness of employee's condition, treating doctors sent her via helicopter to Mercy Hospital in Des Moines, Iowa, where employee was placed on a ventilator and given a breathing tube. Treating doctors diagnosed Legionnaires' disease. Employee contends that she contracted Legionnaires' disease while performing her power washing duties for employer.

Employer presented testimony from its director of environmental health and safety, Brian Paulsen. Mr. Paulsen explained that the water source utilized for power washing goes through three separate disinfection safeguards. First, the water is chlorinated using an automatic hypochlorination process that kills bacteria present in the water. Then, the water is filtered to remove any residual contaminants. Finally, the water is heated to a temperature sufficient to effectively kill any bacteria still remaining. Mr. Paulsen identified the results of water sample testing performed subsequent to employee's getting sick in April 2002. Those test results demonstrate that no Legionella bacteria were present in the water source used for power washing.

Employer presented the expert medical testimony of Dr. David McKinsey, an infectious disease specialist. Dr. McKinsey opined that no causal link can be drawn between employee's work for employer and her development of Legionnaires' disease. Dr. McKinsey explained that if Legionella pneumophila, the causative agent of the disease, were present in the workplace, it would be expected to cause multiple individuals to develop an infection. (As confirmed by Mr. Paulsen, no other employees had contracted Legionnaires' disease from 2001 to the present.) Dr. McKinsey found it notable that the samples of water taken from the workplace were negative for Legionella. Dr. McKinsey explained that even if there had been a negligible potential risk of occupational exposure to Legionella from using high pressure hoses, the risk was mitigated by the process of heating the purified water to a temperature greater than 160 degrees Fahrenheit.

Employer also presented testimony from Dr. Barkman, a pulmonary specialist, who explained that there were multiple factors unrelated to employee's work that put her at risk for suffering pulmonary injury in the form of pneumonia, namely her history of smoking and alcohol abuse. (Employee smoked two packs of cigarettes per day for about 20 years, and at the time of the alleged work injury, she was drinking between 6 and 10 beers daily.) Dr. Barkman opined that employee suffered a community-acquired pneumonia in April 2002, and that her work was not a substantial factor in causing it. Dr. Barkman explained that employee's primary problem is her preexisting chronic obstructive pulmonary disease, and that the pneumonia resolved and had little effect on her underlying chronic condition.

I find the testimony and opinions from Dr. McKinsey and Dr. Barkman in this matter to be credible and more persuasive than those provided by employee's expert, Dr. Beller. Unlike Dr. McKinsey, Dr. Beller (who is not an infectious disease specialist) did not review any information relating to methods by which employer disinfects the water used for power washing. Dr. Beller also relied on incorrect facts contained in correspondence from employee's counsel, including the assertion (disproven by the testimony from Mr. Paulsen) that many employees got sick while working for employer, as well as a completely false account of the process in which water arrived at the hoses employee used for power washing. Specifically, employee's counsel told Dr. Beller that the water came from a holding tank supplied by a pond which consisted of "ground water percolating through or over fields fertilized by manure lagoon sludge." See Transcript, pages 414-15, 469. As demonstrated by the testimony from Mr. Paulsen, none of this is true. Because Dr. Beller relied on false information supplied by employee's counsel, his testimony cannot support an award in favor of the employee.

The versions of $\S \S 287.067 .2$ and 287.020.2 RSMo applicable to this claim require an employee claiming injury by occupational disease to prove that work was a substantial factor in causing the injury. Given my findings regarding the expert medical testimony, I conclude employee failed to meet her burden of proof. I conclude that employee's work for employer was not a substantial factor in causing employee to suffer pneumonia or Legionnaires' disease. Because I am convinced employee failed to prove that she suffered injury by occupational disease, I would deny employee's claim against both the employer and the Second Injury Fund.

Because the majority has determined otherwise, I respectfully dissent.

James G. Avery, Jr., Member

Employee: Marilea Navis

Injury No. 02-158878

Employer: Premium Standard Farms Inc.

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

Insurer: Travelers Indemnity Company of America

Hearing Date: May 14, 2012 Checked by: NGA

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: April 29, 2002.
5. State location where accident occurred or occupational disease was contracted: Mercer 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 was operating a power washer cleaning hog pens and was exposed to Legionella bacteria.
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: Lungs and body as a whole.
2. Nature and extent of any permanent disability: 50 percent body as a whole combining with a pre-existing disability of 50 percent body as a whole to render the claimant permanently, totally disabled.
3. Compensation paid to-date for temporary disability: None.
4. Value necessary medical aid paid to date by employer/insurer? None.
5. Value necessary medical aid not furnished by employer/insurer? None requested.
6. Employee's average weekly wages: $\ 435.37.
7. Weekly compensation rate: $\ 290.25.
8. Method wages computation: By stipulation.

1. Amount of compensation payable:

18 2/7 weeks of temporary total disability x $\$ 290.25=

200 weeks of permanent partial disability from Employer x \$ \$ 290.25=

TOTAL: \ 63,357.43

1. Second Injury Fund liability:

$\ 290.25 per week beginning 200 weeks after September 6, 2002 and weekly thereafter for claimant's lifetime.

1. Future requirements awarded: The employer is hereby ordered and directed to provide the claimant with such future medical paid as may be reasonable and necessary to cure and relieve the condition caused by her occupational disease.

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