Tammy Edgerton v. Matherly Oil Company d/b/a Pump N Pantry

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 00-179008

Employee: Tammy Edgerton

Employer: Matherly Oil Company d/b/a Pump N Pantry

Insurer: Federated Mutual Insurance

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 § 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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated June 3, 2016, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Victorine R. Mahon, issued June 3, 2016, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $14^{\text {th }}$ day of February 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

1. Nature and extent of any permanent disability: None.
2. Compensation paid to-date for temporary disability: None.
3. Value of necessary medical aid paid to date by employer/insurer? None.
4. Value necessary medical aid not furnished by employer/insurer? None.
5. Employee's average weekly wages: $\ 154.50.
6. Weekly compensation rate: $\ 103.00.
7. Method wages computation: By Stipulation.

1. Amount of compensation payable: None.
2. Second Injury Fund liability: None.

TOTAL: $\ 0.

1. Future requirements awarded: None.

The parties appeared before the undersigned Administrative Law Judge for a Final Hearing in the claim filed by Tammy Edgerton, who appeared in person and with her attorney, John Newman. Employer Matherly Oil Company d/b/a/ Pump N Pantry, and its insurer, Federal Mutual Insurance, appeared by their attorney, Karen Johnson. Assistant Attorney General Cara Harris appeared on behalf of the Treasurer of the State of Missouri as the Custodian of the Second Injury Fund. The hearing commenced on March 16, 2016, and was continued to April 6, 2016, to allow the Missouri Department of Social Services, Missouri HealthNet to submit evidence regarding its Medicaid lien. That entity appeared by Attorney Ollie Green. The parties agreed to the following facts and identified the following issues:

1. Claimant alleges an injury occurring in Houston, Texas County, Missouri, making jurisdiction appropriate in Missouri. The parties agreed to venue in Springfield, Greene County, Missouri.
2. At all times relevant, Matherly Oil Company d/b/a Pump N Pantry, was subject to the Missouri Workers’ Compensation Act and was a fully insured entity with Federated Mutual Insurance.
3. At all times relevant, Claimant was an employee of Matherly Oil Company d/b/a Pump N Pantry.
4. Notice was provided and the Claim for compensation was filed timely.
5. Claimant has reached maximum medical improvement, although the parties disagree as to the date of maximum medical improvement.
6. Claimant’s average weekly wage was $\ 154.40, yielding a compensation rate of $\ 103.00.
7. Employer/Insurer made no payments for medical care nor provided temporary benefits. Employee specifically stated that she was seeking no past medical bills.

1. Did Claimant sustain an accident or occupational disease?
2. Did the accident of occupational disease arise out of and in the course of employment?
3. Was the alleged injury medically and causally related to the work for Employer?
4. What, if any, is the nature and extent of any permanent disability?
5. If disability is awarded, what is the date of maximum medical improvement? Claimant alleges a date of October 13, 2000 and Employer/Insurer allege a date of July 9, 2004.
6. Is Claimant owed any temporary total disability?
7. What, if any, is the liability of the Second Injury Fund?
8. Is Claimant entitled to future medical treatment?
9. Is Missouri HealthNet entitled to payment of its Medicaid lien in the amount of \$28,699.76?
10. Is Claimant's attorney entitled to an Attorney's Lien of 25 percent?

Claimant offered the following exhibits which were admitted:

1. Medical records
2. Deposition of Dr. David Volarich
3. Deposition of Philip Eldred
4. Deposition of Tammy Edgerton dated May 17, 2005
5. Deposition of Tammy Edgerton dated November 10, 2015

Employer/Insurer offered the following exhibits which were admitted:

A. Deposition of Thomas Hyers

B. Deposition of James England

C. Medical records from Texas County Memorial Hospital

D. Medical records from Ozarks Medical Center

E. Medical records from Phelps County Regional Medical Center

The Missouri Department of Social Services, Missouri HealthNet offered the following exhibit which was admitted:

I. Notice of Amended Lien for Missouri HealthNet payments dated March 23, 2016.

Tammy Louise Edgerton (Claimant), age 57 years, currently resides in Licking, Missouri, with her son and her daughter-in-law. Claimant graduated from Rolla High School in 1977. She became a respiratory therapist in 1980, and worked at Phelps County Hospital for four to five years. She would administer breathing treatments, EKGs, EEGs, PFT tests and run ventilators. She then worked for Texas County Memorial Hospital as a respiratory therapist in Houston, Missouri for approximately five years. When her husband at the time moved to Virginia, Claimant followed him and obtained a job as a respiratory therapist at the Woodstock Shenandoah Hospital. She maintained that position for more than four years.

Eventually, Claimant returned to Missouri. She was unable to find work immediately and accepted employment as a cook at the Rolla High School cafeteria. After about a year, she returned to work as a respiratory therapist at the Ozarks Medical Center in West Plains, where she remained employed for seven years. During this time she also obtained a two-year associate degree and passed state and federal boards to become certified in respiratory therapy. Her duties at the West Plains facility were much the same as previously described except that she also gave methalyne tests for asthma.

Claimant eventually quit work to care for her ailing parents. Her mother had end-stage renal failure and her father had undergone a triple heart by-pass. After her mother passed away, Claimant continued to care for her father for another five months, who then remarried. She then became a caregiver for her father-in-law.

While taking her father-in-law to Columbia, Missouri for some medical care, Claimant was hurt in a automobile accident near Freeburg, Missouri. She suffered whiplash injury and a bulging disc. Claimant said the pain from the injury and range of motion deficits never resolved. Still, Claimant continued to care for her father-in-law until he died in 1997.

Claimant said she was burned out from having worked as a respiratory therapist and from the stress of caring for her relatives for five years. She eventually returned to work in September 2000, accepting a cashier position with Pump N Pantry. In addition to running the cash register, Claimant was responsible for stocking a cooler and cleaning the counter and restrooms. It was this latter duty that gave rise to the instant claim.

She was employed at Pump N Pantry for only three days. Claimant understood, from another worker, Amy, that a certain cleanser was eating the finish from the bathroom fixtures, and she should not use the product. On September 5, 2000, however, a supervisor directed Claimant to use that particular cleaning product. While cleaning a second bathroom, Claimant contends that her lungs became tight, which she attributes to the cleaning product. Claimant does not know the name of the cleaning product. She does not have a picture of the label, nor any other identifying information as to its ingredients or their concentration. She only knows that it was a cleaner. Despite the alleged accident, Claimant did not seek immediate medical attention. She continued her shift and went to the emergency room for treatment the following day.

Records from Texas County Memorial Hospital verify that Claimant was admitted on September 7, 2000 and discharged the following day on September 8, 2000. She gave a history of have been "exposed to several cleaning chemicals in her new job." (Exhibit C). But she also gave a history of having cold symptoms the previous week with head congestion, fever chills, nonproductive cough and possibly some

wheezes. She further gave a history of having to walk one mile on September 6, 2000, because she had run out of gasoline and subsequently experienced a moderate to severe shortness of breath with wheezing. An x-ray report dated September 7, 2000 indicated moderate bronchitis.

Claimant remained in the hospital overnight and was discharged September 8, 2000. She was given several medications and treatments during her short stay at the Texas County Memorial Hospital. She was in an improved condition and not wheezing at all when she was discharged. In the discharge summary, the treating physician noted:

Patient had previously worked as an RT for approximately 23 years and reports that during that time she had had occasion to test herself with spirometry and states that she had noted lots of small airway obstruction.

(Exhibit C). This differs from comments Claimant had made to other physicians, in which she contended that she had no prior respiratory condition.

The treating physician, Dr. Linda Youngren, gave Claimant one day off work but released Claimant to work thereafter. Claimant, however, never returned to work at the Pump N Pantry.

On September 11, 2000, which was four days after her discharge from the Texas County Memorial Hospital, Claimant was admitted to the Ozarks Medical Center with a history of severe wheezing, dyspnea, and respiratory distress after being exposed to cigarette smoke. She reported a history of one episode of pneumonia and a diagnosis two years prior of croup. At the time of her discharge, Dr. A.N. Reddy believed Claimant had suffered acute bronchial restriction which was "probably on the basis of acute viral infection with bronchitis and bronchospasm" (Exhibit D). Claimant's chest x-ray was normal. Claimant contends she had to stay in the hospital two weeks, although medical records indicate her stay was only five days long. While she admits she was better after her discharge from the hospital, she avers that she was very weak, unable to do much, and relied on the kids to tend to her care. Dr. Reddy's discharge summary, however, indicates that Claimant's bronchospasm and respiratory distress was "much improved," and hypokalemia was resolved. The discharge diagnoses includes acute bronchitis and chronic rhinitis and sinusitis. During a follow-up with Dr. Reddy on October 13, 2000, both Claimant's lung examination and spirometry test results were normal.

Claimant testified that she returned several times to Ozarks Medical Center and that she had been in the hospital ten times within the first year. She has problems breathing particularly in the spring and fall due to allergies. She said avers that she never had any breathing problems before the exposure of the cleaning agent in September 2000.

In January 2001, about four months after the alleged bathroom incident at Pump N Pantry, Claimant went to work for Casey's making pizza. She was employed there three days when someone sprayed an oven cleaner. Claimant reacted to the oven cleaning and sought treatment to the Phelps County Regional Medical Center. Records from Phelps County Regional Medical Center reflect an emergency room visit on January 25, 2001. Upon admission, Claimant gave a history of having developed asthma in September of 2000 but did not know the etiology of her asthma (Exhibit E). She complained of an exacerbation after being exposed to cleaning chemicals at a new job in the last several days, and the use o cleaning chemicals at a different job. She was discharged with a diagnosis of acute extrinsic asthma with bronchospasm and hyperglycemia secondary to steroids.

She did not return to work for Casey's following this event. She had not filed a Claim for Compensation against Casey's. Claimant now uses breathing treatments as needed approximately six to eight times per week, Advair two times per day, an inhaler two times per day, A Combovent inhaler as well as Singulair, and uses oxygen at night. She has problems with her voice as it will come and go. She has a handicap parking sticker. She avers that she only can walk around her house to her recliner before being out of breath. She admits that her symptoms are triggered by pollen, cigarette smoke, perfume, aerosol cleaners, diesel fuels, humidity, and cold weather. Despite these triggering substances, Claimant uses a wood burning stove to heat her home even though doctors have advised her against this. She does see a doctor regularly. Prior to working at Pump N Pantry, she used to bowl, do crafts and play bingo. She no longer engages in these activities due to the presence of cigarette smoke or perfumes in the facilities.

Claimant presented the deposition testimony and report of Dr. David Volarich who had examined Ms. Edgerton on July 9, 2004. His deposition was taken on February 14, 2006. Dr. Volarich is an osteopathic physician board certified in occupational preventative medicine, as an independent medical examiner, in nuclear medicine, and nuclear cardiology.

Dr. Volarich opined that Claimant's exposure to "an industrial-strength ammonia-based tub and title [sic] cleaner" was the substantial contributing factor causing reactive airway disease, resulting in a 50 percent permanent partial disability to the body as a whole (Exhibit 2, p. 6-7). Dr. Volarich said his rating accounted for Claimant's recurrent shortness of breath, difficulties with strenuous activities and her need for extensive amounts of daily medication to control her wheezing. He found that Claimant was at maximum medical improvement and rated Claimant as having a 50 percent permanent partial disability to the body as a whole.

Dr. Volarich found that Claimant had a preexisting cervical condition that Claimant sustained in a motor vehicle accident in the late 1990s. He noted a decreased range of motion from those injuries, including a 60 percent loss of motion in flexion, 17 percent loss in extension, 56 percent loss in right lateral flexion, 12 percent loss in left lateral flexion, 75 percent loss in right rotation, and 72 percent loss in left rotation. Her worst pain was when she extended her neck. He rated this preexisting condition as a 20 percent permanent partial disability to the body as a whole.

With respect to physical restrictions, Dr. Volarich said Claimant should continue on her medication regimen, avoid weather extremes and sudden temperature changes, and avoid any odors, fumes, dust, or chemicals that could trigger a bronchospasm. As for Claimant's neck, Dr. Volarich that Claimant limit any bending, twisting, lifting, pushing, pulling, carrying, and climbing. She should not handle any weight greater than 20-25 pounds, handle weight only occasionally, avoid overhead handling of weight, and avoid remaining in a fixed position for more than an hour and that included standing and sitting.

Dr. Volarich recommended a vocational assessment and, if the vocational assessment was unable to identify a job for which she was suited, it was his opinion that Ms. Edgerton was permanently and totally disabled because of the work injury of September 2000 in combination with her preexisting medical condition. In any event, Dr. Volarich indicated that the combination of the primary and preexisting disabilities combined synergistically and a loading factor should be added.

Dr. Thomas Hyers, a physician who is board certified in internal medicine and pulmonary medicine, examined Ms. Edgerton on April 19, 2010. He took a history from Claimant that she was cleaning bathroom sinks in a convenience store when she developed a tight feeling in her chest and began to cough and wheeze after about five minutes of exposure. She denied any prior history of any pulmonary problems and indicated that she was a non-smoker. She related that currently she still has breathing problems that are periodically worse and for which she takes a number of medications, including: Combivent, Advair, a nebulizer, Metformin, Prilosec, Singular, Xanax, Vicodin and Meloxicam. He opined that Claimant exhibited a great deal of anxiety that contributed to her condition. She admitted to having several triggers that could provoke respiratory symptoms, including cologne, cleaning agents, perfumes, smoke, and the time of the year, particularly spring and fall months.

During his examination, Dr. Hyers noted that Claimant lungs were clear. Other than some swollen mucus membranes in the nose, her exam was normal. He also performed pulmonary function tests that revealed mild airway obstruction and mild asthma as well as rhinitis and chronic sinusitis. Dr. Hyers explained that asthma is a disease of periodic and intermittent airways obstruction. It appears in adults and children and can be aggravated by a number of non-specific triggers, such as fumes, smoke, dust, and cold weather. Asthma tends to run in families. Dr. Hyers testified that when asthma appears in adults, the most common trigger is a viral respiratory infection.

Dr. Hyers did not believe the alleged work event in September of 2000 was a substantial factor in the development of the rhinitis, sinusitis, or the asthma. He could not state with any degree of medical certainty that the September 2000 exposure at work could even be considered an aggravation of Claimant's respiratory problems. He believed the alleged exposure was temporary in nature, and resulted in no permanent condition. His opinion relied, in part, on the examination and testing performed by Dr. Reddy a month following the alleged exposure, the results of which were normal. Dr. Hyers believed Claimant was at maximum medical improvement with regard to any alleged occurrence or exposure to a cleaning product at Pump N Pantry. He agreed that Claimant needed ongoing treatment for her asthma, but he did not believe this treatment was needed as a result of the exposure at Pump N Pantry in 2000. He did not believe the alleged occurrence in September of 2000 contributed in any way to Claimant's permanent disability. As Dr. Hyers stated:

A. Well, first of all, the fact that she had normal findings at that time indicates to me that whatever problems she may have had earlier in September with the exposure had resolved and that's characteristic of asthma. The symptoms and the abnormalities come and go. Also, that would support my opinion that if she did have any transient aggravation of her respiratory symptoms, in September 2000, it had cleared up by the time Dr. Reddy saw her on October $13^{\text {th }}$, 2000 .

(Exhibit A, p. 19).

Vocational evaluator Phillip Eldred testified on Claimant's behalf. He evaluated Ms. Edgerton on April 20, 2006. He was deposed on May 10, 2012. Mr. Eldred opined that Claimant was neither employable nor placeable in the open labor market based up on the exposure of September 6, 2000.

Employer/Insurer submitted the deposition testimony and report of James England. He evaluated Claimant on August 20, 2012. He was deposed on April 30, 2013. Assuming only Dr. Volarich's restrictions, Mr. England believed there was the potential for Claimant to work in a temperature controlled clean air environment. Mr. England opined, however, that someone who was having the degree of problems Ms. Edgerton described would not be able to successfully compete or sustain gainful employment.

Mr. England addressed Ms. Edgerton's prior cervical condition. He said the condition constituted a disability of such seriousness as to constitute a hindrance or obstacle to employment or obtaining reemployment. He agreed with Dr. Volarich's opinion that Ms. Edgerton would be permanently and total disabled as a result of both the breathing issues and the prior neck condition.

Having considered the whole record, and given his testing and more relevant expertise, I find the testimony of Dr. Hyers to be more persuasive than that of Dr. Volarich. While I find Claimant to be generally credible, there are discrepancies in her testimonies which differ with some of the medical records. Given the number of years that passed since the date of the alleged accident, to the extent the records differ with Claimant's testimonies, I accept the medical records as more accurate.

A claimant in a workers' compensation action bears the burden of proving all essential elements of her Claim. Hebree v. Treasurer, 435 S.W.3d 165(Mo. App. S.D. 2014). This includes the burden of demonstrating a causal connection between the accident and the injury. Lingo v. Midwest Block \& Brick, 307 S.W.3d 233, 236 (Mo. App.W.D. 2010). In a case of alleged chemical exposure, "Missouri law does not require a finding of which specific chemical caused the occupational disease in question in order to recover under the Workers' Compensation Act." Kent v. Goodyear Tire \& Rubber Co., 147 S.W.3d 865, 869 (Mo. App. W.D. 2004). To prove causation, however, Claimant demonstrate "a recognizable link between the disease and some distinctive feature of the job which is common to all jobs of that sort." Id. This case pales in comparison to cases such as Moreland v. Eagle Picher Techs., LLC, 362 S.W.3d 491, 504-06 (Mo. App. S.D. 2012), wherein the Commission found a recognizable link between multiple myeloma and some distinctive features of the employee's job, which included exposure to benzene and other toxic chemicals in a manufacturing process over a period of 10 years.

Here, Claimant contends that she developed reactive airway disease as a result of a brief, one-time exposure to a cleanser that she cannot name, much less identify its chemical composition or any concentrations. We know only that another worker told Claimant that the cleanser purportedly was eating some finish off of the bathroom fixtures. Although Dr. Volarich stated in his opinion that Claimant was exposed to an industrial strength, ammonia-based cleanser, his opinion is based on mere supposition. There is absolutely no evidence as to what, if any, chemicals were in the cleanser. We do not know whether the cleaner actually was eating off the finish, or whether the problem was with the fixtures themselves. Even if we could presume there was a chemical in the cleanser, we do not know whether it was toxic and we certainly do not know whether it contained ammonia.

Dr. Volarich's causation opinion also is not persuasive in this case because he did not fully consider that Claimant had continued working for several hours after her alleged chemical exposure, telling no one at her place of employment during the remainder of her shift that she was experiencing any type of breathing difficulty. She also gave a history to the emergency room the day after the alleged injury, that she had walked a mile the preceding day after running out of gas and then had onset subsequently of moderate to severe shortness of breath with wheezing. Such medical documentation fails to substantiate that it was the cleanser that was a substantial factor in causing or contributing to Claimant's respiratory condition.

Moreover, knowing only that Claimant was exposed some type of cleanser on a single occasion hardly establishes that Claimant's exposure to a respiratory disease was greater or different from that which affected the general public. To the contrary, the evidence and her own testimony indicate that her breathing condition is triggered by a number of exposures in her everyday life, even to this day, more than 15 years after the alleged work event. She testified that she can have an attack after being exposed to a number of irritants such as pollen, cigarette smoke, perfume, as well as aerosol cleaners. Yet, knowing that smoke is an irritant, Claimant admitted she burns wood to heat her home. Dr. Hyers also testified that asthma is a disease of periodic and intermittent airways obstruction. It appears in adults and children and can be aggravated by a number of non-specific triggers, such as fumes, smoke, dust, and cold weather.

Dr. Hyers, who has the greater relevant expertise - as a board certified pulmonologist for 32 years - based his opinion, not only on Claimant's subjective complaints and a review of medical records, but also performed pulmonary function studies. Dr. Volarich did no such testing. Contrary to the opinion of Dr. Volarich, Dr. Hyers diagnosed Claimant with "mild asthma" and "rhinitis." He testified that when asthma appears in adults, the most common trigger is a viral respiratory infection, and there is ample evidence in the record that Claimant had suffered from such infections. As the records from the September 7, 2000 admission indicate, Ms. Edgerton had been experiencing cold symptoms with wheezing the previous week, and had been diagnosed with bronchitis, a viral respiratory infection.

On September 11, 2000, when Claimant was seen at Ozarks Medical Center, the diagnosis again was "Acute bronchitis" based on x-ray, with all other scans and test results being normal. But as Dr. Hyers testified, when Claimant saw Dr. Reddy on October 13, 2000, all testing was normal. Dr. Hyers found it significant that the lung exam and spirometry tests were normal. As Dr. Hyers explained, whatever problems Claimant may have had in September, they had resolved, which is characteristic of asthma. Claimant's subjective presentation of being very symptomatic did not match up with the objective testing.

Therefore, given the lack of specificity as to the cleaning product and its ingredients, the testimony that Claimant has continued exposure to irritants in her nonemployment everyday life, and based on Dr. Hyer's expertise, I conclude that Claimant has failed in her burden of proof. I conclude there was no accident, no injury arising out of and in the course of employment, and no medical causation between Claimant's medical condition and her job duties. Having found no liability on the part of Employer/Insurer, the Second Injury Fund also has no liability. All other issues are moot.

Compensation is denied.

Given by: /s/ Victorine R. Mahon

Victorine R. Mahon

Administrative Law Judge

Missouri Division of Workers' Compensation