Terry Lankford v. Newton County

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.
2. An injury or death 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-to-day living shall not be compensable.

Applying the plain language of the foregoing statutory provisions (which we must strictly construe by virtue of $\S 287.800 .1 RSMo) we cannot impose the "unequal exposure" requirement found in \S 287.020 .3$ to this claim, because the foregoing language contains no such requirement. We note that the legislature amended $\S 287.067 .2$ in 2005 to remove language requiring that an occupational disease "meet the requirements of an injury which is compensable as provided in subsections 2 and 3 of section 287.020," as well as language providing that "[a]n occupational disease is not compensable merely because work was a triggering or precipitating factor." The obvious intent and effect of this amendment is clear: in evaluating claims of injury by occupational disease, we must no longer refer to the criteria for a compensable injury by accident under $\S \S 287.020 .2$ and 287.020.3.

Accordingly, we conclude that the recent cases discussing the "unequal exposure" requirement under § 287.020.3, e.g., Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504 (Mo. 2012), and Miller v. Mo. Highway \& Transp. Comm'n, 287 S.W.3d 671 (Mo. 2009), are not applicable to this claim alleging an injury by occupational disease. Instead, following the 2005 amendments to Chapter 287, it is sufficient for employee to demonstrate that the disease he suffered is not an "ordinary disease of life to which the general public is exposed outside of the employment."

By all accounts, the Mycobacterium avium complex (MAC) in employee's lungs was not an "ordinary disease of life." Rather, the medical experts agree it is an extremely rare disease that is typically only seen in individuals with compromised immune systems. As a result, we conclude that employee's MAC qualifies as an "occupational disease" under the law, and is compensable if employee is able to prove the other requisite elements, namely, that the disease (1) had its origin in a risk connected with the employment; (2) flowed from that

source as a rational consequence; and (3) that employee's occupational exposure was the prevailing factor in causing both the resulting medical condition and disability.

We have carefully reviewed the medical opinions relevant to these factual issues, and we commend the parties for their insightful and thorough briefing. We believe this is a close case. Having said that, we are of the opinion that the administrative law judge capably sorted through the conflicting expert medical testimony, and we discern no need to disturb his well-reasoned analysis. For this reason, we will defer to his findings.

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Robert House, issued March 3, 2015, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We approve and affirm the administrative law judge's allowance of attorney's fee 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 10th day of December 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

DISSENTING OPINION FILED

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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Infections, employee's claim fails. This is because, even if Dr. Parmet is believed, employee's lung infections simply did not have their "origin in a risk connected with the employment" as required under § 287.067.1 RSMo. The relevant risk here is exposure to pigeons and pigeon droppings, one that bears no connection whatsoever to employee's actual work duties as an investigator. The only reason employee was ever exposed to pigeons or pigeon droppings was because of his wholly voluntary and personal choice-against all medical advice even as his COPD worsened-to smoke, on employer's roof, the cigarettes that would eventually kill him. Because there is no work connection, the alleged occupational disease is not compensable.

Assuming arguendo that some work connection can be manufactured from the evidence that employee's coworkers sometimes followed him onto the roof to discuss work issues, I am convinced that the claim alternatively fails on the issue of medical causation. Dr. Parmet readily admitted that he has no background whatsoever with the MAI bacteria that allegedly caused employee's lung infection. He has never treated it. He has never studied it. Instead, to support his testimony in this case, he read one and a half pages from the Control of Communicable Disease manual discussing the Cryptococcus neoformans bacterium-an organism to which employee does not even allege he was exposed. This is the expert the administrative law judge, and now the majority of this Commission, have credited.

Employer, on the other hand, advances testimony from Dr. Paul Jost and Dr. Hunter Hofmann, board-certified experts in infectious and pulmonary diseases, respectively. Dr. Jost explained that MAI bacteria are so prevalent in the world at large that establishing any probability of exposure from a particular source is impossible. Dr. Hofmann found that employee's cigarette smoking and related COPD, rather than any alleged exposure to disease causing pathogens on employer's roof, was the root cause of the lung infection for which employee underwent surgery in 2007. Dr. Hofmann pointed out that MAI bacteria are commonly found in the cigarettes that employee smoked daily. Finally, Drs. Jost and Hofmann agreed with the treating physician Dr. Eden Esguerra that employee did not actually suffer an infection related to Cryptococcus Laurentii, and that this organism likely appeared in the lung biopsy owing to contamination in the laboratory. Instead, the MAI bacterium was the sole causative pathogen.

Faced with this incontrovertible evidence from better-qualified specialists that his initial opinion incorrectly identified Cryptococcus Laurentii as playing some role in employee's lung infection and need for surgery in 2007, Dr. Parmet was forced to revisit the facts. However, rather than acknowledge that his initial opinions lack any value, Dr. Parmet asserted his opinions were "unchanged," even as he silently amended them to identify the MAI bacteria as the sole causative pathogen. See Transcript, page 218. Upon what evidence did Dr. Parmet rely in reaching this new, amended opinion? The same Control of Communicable Disease manual discussing the Cryptococcus neoformans bacterium. Transcript, page 114. In other words: no evidence whatsoever.

Worse, Dr. Parmet premised his (demonstrably unfounded) opinion on the (indisputably false) assumption that the roof where employee enjoyed his smoke breaks was partially

Injury No. 07-131974

Employee: Terry Lankford, deceased

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covered: it was not. Dr. Parmet agreed that rain would otherwise wash away the pigeon droppings, preventing growth of the MAI bacteria. So, not only is Dr. Parmet's opinion rendered without the necessary medical foundation, but it also relies on incorrect facts. To characterize such an opinion as mere conjecture or speculation would be, in my view, unduly generous. Because it relies on incorrect facts, Dr. Parmet's ultimate opinion cannot be considered competent and substantial evidence upon which to support an award of lifetime benefits in favor of employee's widow for employee's death resulting from a lifetime of chronic cigarette smoking.

To be clear, I have utmost sympathy for Ms. Lankford, and I wish to express my sincere condolences for her loss. However, I simply cannot join in the majority's choice to turn these sad events into a compensable workers' compensation case. I would credit the opinions from