The parties presented evidence at a hearing on January 9, 2015. Claimant (Mrs. Lankford) appeared in person and with her attorney, John Wise. Employer/Insurer appeared with its attorney, Alex Wulff. The Second Injury Fund appeared through its attorney, Saundra McDowell. The parties presented five issues for determination:
- Whether Mr. Lankford sustained an occupational disease arising out of and in the course of employment with Employer;
- Medical causation;
- The nature and extent of permanent disability attributable to Mr. Lankford's occupational disease, with Claimant alleging that Mr. Lankford was permanently and totally disabled;
- Schoemehl dependency;
- Whether the Second Injury Fund has any liability and the extent of that liability.
Claimant (Mrs. Lankford's) attorney, John Wise, also seeks an attorney's fee of 25\%.
Terry Lankford (Employee) died on June 15, 2012, at the age of 63. Mr. Lankford was born on March 5, 1949. The Certificate of Death reflects that Mr. Lankford died from causes unrelated to his occupational injury. That document reflects that he passed away from pneumonia and COPD. The order substituting as Claimant Mr. Lankford's surviving spouse, Carol Lankford, was signed by Administrative Law Judge Karen Fisher on September 6, 2012.
Both Mr. and Mrs. Lankford testified by deposition. Mr. Lankford graduated from high school and briefly attended college. He also served in the United States Army from 1967 to 1969. His last employment was with Newton County. Mr. Lankford was employed by Newton County for over 21 years. He spent the last 10 years of his employment with Newton County working as an investigator for the prosecutor's office. As an investigator, he interviewed victims and witnesses and located evidence for the prosecutors.
During his employment with the prosecutor's office, he took frequent smoke breaks on the roof of the Newton County Courthouse, the place of his employment. He took 10 smoke breaks per day, and would remain on the roof for 5 to 10 minutes at a time during such smoke breaks. While taking such smoke breaks, he would discuss his job activities with prosecutors, other investigators, and deputies and detectives. Those individuals would "run some questions" by Mr. Lankford.
Mrs. Lankford testified that she had opportunities to visit Mr. Lankford during his smoke breaks on the rooftop. She would visit him during such smoke breaks about once a month. She described the condition of the roof as being covered by pigeon droppings. She observed his co-workers going out to the rooftop during smoke breaks to discuss Mr. Lankford's job activities with him. She also testified that Mr. Lankford was not exposed to such a large number of pigeons in a concentrated area, or pigeon droppings, in his activities outside of work as he was during his employment with Newton County.
Dr. Parmet also described the history Mr. Lankford provided to him. Mr. Lankford described smoking breaks on the roof of the courthouse; he described "extensive amounts of pigeons and pigeons nesting there." He also described it as an "occasional site of confidential conversations with other individuals including his supervisor."
Mrs. Lankford married Mr. Lankford on June 5, 1970. A copy of their marriage certificate was admitted into evidence as an exhibit. She confirmed that Mr. Lankford passed away from causes unrelated to his occupational injury. Mrs. Lankford was married to Mr. Lankford continuously from June 5, 1970, to June 15, 2012, the date of his death. She confirmed that she was married to him on the date of his occupational injury, December 14, 2007.
Mr. and Mrs. Lankford and she had two children, who were not dependent on Mr. Lankford for support at the time of his occupational injury. Mrs. Lankford testified that no one, other than her, was dependent on Mr. Lankford for support as of December 14, 2007, the date of his death, or any time between such dates.
In December 2007, Mr. Lankford underwent a CT scan of the chest, which disclosed a mass on the right upper lobe of his lung. Mr. Lankford underwent a lobectomy on December 21, 2007. While recovering from that surgery, he suffered a stroke. Mr. Lankford did not work anywhere following the stroke in December 2007.
Dr. Allen Parmet, a physician board-certified in occupational medicine and aeronautic medicine, testified by way of deposition. Dr. Parmet examined Mr. Lankford on August 7, 2008. Dr. Parmet explained that, following the lobectomy procedure, the mass removed from Mr. Lankford's lung was biopsied. Those tests disclosed 2 infectious agents: a fungus called Cryptococcus laurentii ("Crypto") and a bacteria, mycobacterium avium intracellularae ("MAI").
Dr. Parmet opined that the Crypto and MAI arose from Mr. Lankford's repeated and periodic exposure to pigeon droppings during his employment with Newton County. Dr. Parmet concluded that Mr. Lankford's occupational activities with Newton County were the prevailing factor in causing the Crypto and MAI. The lobectomy was necessary to treat those conditions and the surgical complication, i.e., the stroke, was a direct consequence of treatment Mr. Lankford received for the two infections.
Dr. Parmet opined that Mr. Lankford had reached maximum medical improvement as of the time of his examination and concluded that Mr. Lankford was permanently totally disabled.
Q. Did you form an opinion as to whether Mr. Lankford has any permanent disability as a result of the Crypto, M. avium, and the resulting stroke?
A. Yes.
Q. And what is that opinion?
A. Unfortunately, he's - he's permanently and totally disabled. This is due to the effects of the stroke since he's got hemiparesis, he's got contractures, and he's got cognitive dysfunction. This is not something that you could take a person and readily put them back to work under any circumstances.
Q. And, Dr. Parmet, he - you say that the permanent total disability arises solely because of the stroke which you think was a direct result of the Crypto and M. Avium and the treatment he received for that, and that's independent of all the prior problems he had before this?
A. Correct.
All of Dr. Parmet's opinions were given within a reasonable degree of medical certainty.
Mr. Lankford was also examined by Dr. Paul Jost, on January 6, 2010. Dr. Jost is a physician board certified in internal medicine and infectious disease. Dr. Jost concluded that Mr. Lankford did not suffer from Crypto but suffered from MAI. Dr. Jost did not think that the MAI was caused by Mr. Lankford's exposure to pigeon droppings during his employment at Newton County. Dr. Jost testified
that the MAI "organism is so prevalent in the environment that he could have picked it up on numerous possible occasions and to tie it to one specific location at this time would basically be impossible". However, on cross-examination, Dr. Jost agreed that Mr. Lankford could have been exposed to the risk of contracting MAI as a result of his employment with Newton County. He also opined that he could not rule out Mr. Lankford's work as a source of Mr. Lankford's exposure to MAI. All of Dr. Jost's opinions were given within a reasonable degree of medical certainty.
Dr. Hunter Hofmann conducted a record review and issued 2 reports concerning Mr. Lankford. Those reports were admitted into evidence. Dr. Hofmann's curriculum vitae reflects that he is a physician practicing in Columbia, Missouri, and is board certified in internal medicine.
Dr. Hofmann, like Dr. Jost, concluded that Mr. Lankford did not suffer from Crypto but rather suffered from MAI, only. Dr. Hofmann opined that Mr. Lankford's cigarette smoking was the primary cause of his pulmonary conditions, including his contraction of MAI. However, in his report, Dr. Hofmann noted it was "also possible that he was exposed with his habit of taking smoking breaks." He also concluded that the MAI was the diagnosis that resulted in the lobectomy Mr. Lankford underwent in December 2007.
In addition to his deposition testimony, Dr. Parmet authored a report of June 11, 2014, which was submitted into evidence. Dr. Parmet issued that report after reviewing additional materials, including the reports of Dr. Hofmann and Dr. Jost and the deposition of Dr. Jost. Dr. Parmet noted the opinions of Dr. Jost and Dr. Hofmann that Mr. Lankford did not suffer from Crypto. However, he noted as did those doctors, that the MAI infection "clearly was present". "The subsequent complications . . . of Mr. Lankford stems from the evaluation of the fungal infection and biopsy, which resulted in the complication". Dr. Parmet concluded that "while smoking is certainly the initial cause of his chronic obstructive pulmonary disease which potentiated the infection, my opinion remains that Mr. Lankford's occupational exposure at the Newton County Courthouse was the most likely cause of his MAI infection and therefore ultimately rendered him Permanently and Totally Disabled and led to his death. Clearly, his pre-existing pulmonary conditions and other pre-existing problems were contributing factors and hastened his demise."
The first issues to address are whether Mr. Lankford sustained an occupational disease arising out of and during the course of his employment with Employer, and whether his occupational disease was caused by such exposure. It is uncontradicted that Mr. Lankford was exposed to pigeons and pigeon droppings during the course of his employment. He took smoke breaks, ten times a day, on the roof of
the Newton County Courthouse. Both Mr. and Mrs. Lankford described that site as one with numerous pigeons and pigeon droppings. Also, during his smoke breaks, Mr. Lankford discussed with coemployees work activities. His supervisors, the prosecutors, would also discuss cases with him during such smoke breaks. He so testified in his deposition, and also provided a similar history to Dr. Parmet. Mrs. Lankford also described observing Mr. Lankford's supervisors discussing work issues with him during the smoke breaks on the roof of the courthouse. That uncontradicted evidence clearly establishes that Mr. Lankford's exposure to the pigeons and pigeon droppings arose out of and in the course of his employment with Employer.
There is some disagreement among the medical experts as to what medical conditions Mr. Lankford contracted. Dr. Parmet opined that Mr. Lankford had contracted both Crypto and MAI. However, Dr. Jost and Dr. Hofmann opined that Mr. Lankford did not suffer from Crypto. However, both doctors agreed that Mr. Lankford suffered from MAI. Moreover, the experts agreed that the lobectomy, which Mr. Lankford underwent in December 2007, was necessary to treat the MAI. As opined by Dr. Parmet, Mr. Lankford suffered a disabling stroke as a result of that surgical procedure.
Dr. Parmet opined that the MAI from which Mr. Lankford suffered arose from his exposure to pigeon droppings during the course of his employment with Employer. Dr. Parmet opined that such exposure was the prevailing factor in causing the MAI. Although Dr. Jost and Dr. Hofmann essentially testified that they could not pinpoint the site of Mr. Lankford's exposure to MAI, they acknowledged that it was possible that he had contracted such condition because of his employment at Employer. They both testified that it was possible he was exposed to the risk of contracting MAI during his employment with Employer.
Dr. Jost and Dr. Hofmann placed great emphasis on Mr. Lankford's longstanding history of chronic obstructive pulmonary disease ("COPD"). Dr. Parmet also discussed that condition. However, as noted above, the doctors agreed that the condition for which Mr. Lankford underwent a lobectomy in December 2007 was the MAI and not COPD.
Moreover, Mrs. Lankford testified that Mr. Lankford was not exposed to pigeons or pigeon droppings outside of work to the extent he was so exposed during his employment with Newton County. A claimant does not have the burden of proof in an occupational disease case such as this to pinpoint the specific exposure. Smith v. Capital Region Medical Center, 412 S.W. 3rd 252 (Mo. App. 2013). The totality of the evidence clearly establishes a probability that Mr. Lankford's occupational activities at Employer caused the MAI. It is clear that he experienced a greater risk of exposure to contracting MAI
during his employment with Employer than in his non-work activities. I find Dr. Parmet's opinion regarding exposure and causation to be more persuasive than the opinions of Dr. Jost and Dr. Hofmann.
With respect to the issue of the nature and extent of Mr. Lankford's disability, it is clear that he was rendered permanently totally disabled as a result of contracting the occupational disease. All doctors discussed the stroke that Mr. Lankford suffered as a consequence of undergoing the lobectomy. Dr. Parmet testified, without impeachment or contradiction, that the sequelae of that stroke, alone, rendered Mr. Lankford permanently totally disabled. As such, I find and conclude that Mr. Lankford is permanently totally disabled solely as a result of his occupational disease contracted during the course of his employment with Employer. I also note that the parties stipulated that Mr. Lankford reached maximum medical improvement with respect to that occupational disease as of August 7, 2008.
Consequently, I find and conclude that Mr. Lankford contracted an occupational disease, MAI, as a result of his exposure to pigeon droppings during the course and scope of his employment with Employer and that such exposure was the prevailing factor in causing both his condition and disability that ultimately led to his stroke which rendered him permanently and totally disabled.
Pursuant to Schoemehl v. Treasure of Missouri, 217 S.W. 3rd 900 (Mo. banc 2008) employee's right to compensation for both accrued and unaccrued permanent total disability benefits survives to his dependent (Carol Lankford). Although the holding in Schoemehl subsequently was abrogated by statutory amendment, such amendment is not effective in this case. Gervich v. Condaire, Inc., 370 S.W. 3rd 617 (Mo. banc 2012).
Employee's right to Workers' Compensation benefits vested when he contracted the occupational disease at issue in this case. Mr. Lankford was married to Mrs. Lankford from that date through the date of Mr. Lankford's death, June 15, 2012. There is no evidence that Mr. Lankford had any other dependent on the date of his injury or during any other relevant time frame. When Mrs. Lankford was substituted as a party, she stepped into the shoes of Mr. Lankford. Given that Mr. Lankford's Workers' Compensation Claim was pending when Schoemehl was decided, the 2008 statutory amendment abrogating Schoemehl does not apply to Ms. Lankford. Pursuant to Gervich, Mrs. Lankford is entitled to assume her late husband's place as the Employee/Claimant for the purpose of receiving continuing permanent total disability benefits pursuant to Schoemehl. See also Spradling v. Treasurer of the State of Missouri, 415 S.W. 3rd 126 (Mo. App. 2013).
The parties have stipulated that Mr. Lankford reached maximum medical improvement as of August 7, 2008. The period of past permanent total disability benefits, from August 8, 2008, through the date of hearing, represents 334 weeks. Based on the stipulated rate for permanent total disability benefits, $\ 502.43, past benefits to the date of hearing correspond to a lump sum of $\ 167,811.62. As a result, I order Employer/Insurer to pay Claimant said amount.
I also order The Employer/Insurer to pay ongoing permanent total disability benefits to Claimant, Carol Lankford, in the weekly amount of $\ 502.43 from the day following the hearing (January 10, 2015) for the remainder of her life, subject to review and modification as provided by law.
Given that I have found the Employer/Insurer liable for permanent total disability, I find no liability on the part of the Second Injury Fund in this matter.
I allow Claimant's attorney, John Wise, an attorneys fee of 25 percent of all amounts awarded herein as a reasonable fee for necessary legal work performed on behalf of Claimant which fee shall constitute a lien upon this award..
Made by: $\qquad$
Robert House
Administrative Law Judge
Division of Workers' Compensation
Signed 2/25/15