Vicki Schaefer v. Lincoln County

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 13-067961**

**Employee:** Vicki Schaefer

**Employer:** Lincoln County

**Insurer:** Missouri Association of Counties

**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 September 14, 2018, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Margaret Landolt, issued September 14, 2018, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this **19th** day of July 2019.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**Robert W. Cornfio, Chairman**

**Reid K. Forrester, Member**

**Curtis E. Chick, Jr., Member**

Attest:

**Pamela M. Kufmann, LNK**

Secretary

Employee: Vicki Schaefer

Injury No: 13-067961

Dependents: N/A

Employer: Lincoln County

Additional Party: Second Injury Fund

Insurer: Missouri Association of Counties

Hearing Date: June 19, 2018

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDL

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: alleged July 7, 2013
5. State location where accident occurred or occupational disease was contracted: Troy, 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? N/A
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: Employee was exposed to Lysol spray.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: alleged body as a whole - lungs
14. Nature and extent of any permanent disability: 0
15. Compensation paid to-date for temporary disability: 0
16. Value necessary medical aid paid to date by employer/insurer? 0

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Vicki Schaefer

Injury No.: 13-067961

1. Value necessary medical aid not furnished by employer/insurer? $1,3038.39

1. Employee's average weekly wages: Unknown

1. Weekly compensation rate: $319.32/$319.32

1. Method wages computation: By stipulation

**COMPENSATION PAYABLE**

1. Amount of compensation payable: 0

1. Second Injury Fund liability:

**TOTAL:** 0

1. Future requirements awarded: None

Said payments to begin 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:

Revised Form 31 (3/97)

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Employee: Vicki Schaefer

Dependents: N/A

Employer: Lincoln County

Additional Party: Second Injury Fund

Insurer: Missouri Association of Counties

Injury No.: 13-067961

Before the

Division of Workers' Compensation

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Checked by: MDL

A hearing was held on June 19, 2018, at the Division of Workers' Compensation in the city of St. Louis, Missouri. Vicki Schaefer ("Claimant") was represented by Mr. Rex Bradley. Lincoln County ("Employer") and its insurer, Missouri Association of Counties, was represented by Ms. Dana Hibbs. The Second Injury Fund ("SIF") was represented by Assistant Attorney General Da-Niel Cunningham. Mr. Bradley requested a fee of 25% of Claimant's award.

The parties stipulated that on or about July 7, 2013, Claimant was an employee of Employer; venue is proper in St. Charles County, Missouri; the claim was timely filed; the appropriate rate of compensation is $319.32 for both Permanent Total Disability ("PTD") and Permanent Partial Disability ("PPD") benefits; and Employer paid no TTD benefits and $1,990 in medical benefits. Although the parties stipulated that venue is proper in St. Charles County, Missouri, they agreed to have the hearing conducted at the Division of Workers' Compensation office in St. Louis, Missouri.

The issues to be decided by hearing are whether Claimant sustained an accidental injury arising out of and in the course of employment; whether Claimant provided sufficient notice of the injury; medical causation; what is the nature and extent of permanent partial disability sustained by Claimant; whether Claimant is permanently and totally disabled; and liability of the SIF.

Only evidence necessary to support this award will be summarized.

Claimant is a 58-year-old woman with a long-standing history of asthma, who was hired by Employer as a corrections officer in 2007. On August 20, 2008, Claimant had a pulmonary function test which showed a mild obstructive ventilatory defect without significant response to bronchodilators. On February 9, 2012, Claimant was referred to Dr. Alicia King when she developed wheezing after a colonoscopy. Claimant complained of a productive cough and had audible wheezing. Dr. King referred Claimant to the emergency room, but Claimant declined due to work. Dr. King diagnosed asthma with acute exacerbation and instructed Claimant to go to the emergency room if her symptoms worsened.

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When Claimant saw Dr. King on February 14, 2012, she reported her breathing was worse after completing a course of Prednisone. She continued to have audible wheezing which decreased after nebulizer treatment. She again declined admission to the hospital. Dr. King diagnosed asthma with acute exacerbation. According to Dr. King, Claimant had an appointment with Dr. Stephen Lillard, a board certified pulmonologist, later that day, and she deferred to him on further steroid use. Claimant was advised to go to the hospital if her breathing worsened prior to her appointment with Dr. Lillard.

Claimant saw Dr. Stephen Lillard for the first time on February 12, 2012. According to his records, this was the first time Claimant had seen a pulmonologist. The history indicated Claimant had a life-long history of asthma, but had not been limited by it because she was an athlete doing a 10K and more. The records stated: "The patient at this time and over the four years has not been able to do much and in that time frame has been working at the prison exposed to the prisoners. She says they have kinds of infections and that is what she feels is contributing to her poor control of her asthma."

Claimant described her cough as "horrible" and noted no improvement with antibiotics, Prednisone, and a Dulera inhaler. Claimant said her aerobic exercise was limited by a right knee injury. Dr. Lillard noted a diffuse wheeze during her physical examination and her initial inspiratory effort resulted in a harsh coughing fit. His diagnosis was acute asthma exacerbation with history of recurring and worsening exercise limitation over the last several years. He recommended complete pulmonary function tests once her condition stabilized.

Claimant's February 28, 2012 chest x-ray did not show any evidence of acute cardiopulmonary disease, and there was no significant change noted since the x-ray on January 25, 2012. At the February 28, 2012 office visit, Claimant had a slight cough, but her physical examination was improved. Dr. Lillard's diagnoses were resolving acute tracheobronchitis with bronchospasm and probable underlying asthma.

When Claimant saw Dr. Lillard again on April 13, 2012, he again noted her history of lifelong asthma and seasonal flares. Claimant denied any coughing or shortness of breath but complained of wheezing when "really rushing." She said she avoided aerobic exercise due to knee issues, and did not report any shortness of breath with her weightlifting program.

Claimant saw Dr. King for respiratory issues again on December 20, 2012. She presented with complaints of continual cough and wheezing. She reported worsening wheezing after being exposed to mace a few days before. Dr. King's diagnosis was acute asthma exacerbation and acute sinusitis.

PRIMARY INJURY

Claimant testified she was working in the control center or "bubble" of the Lincoln County jail on July 7, 2013. She left the control center to use the employee restroom. While inside the restroom, Claimant heard a spraying noise and smelled an odor similar to a Lysol-like cleaning agent coming from outside the restroom door. Claimant testified the spray resulted in her suffering a major asthma attack and upon exiting the bathroom, she saw Sergeant John Daniels walking away with what appeared to be a can of Lysol. Claimant testified she reported the incident to Sgt. Daniels, and he was supposed to write an incident report.

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Claimant was out of the bubble for about 15 minutes after the incident and then went back to work. During that time, Claimant was coughing and attempting to get her coughing under control. Claimant finished her shift on July 7, 2013 and worked the next day as well. She did not seek medical treatment for this incident until July 11, 2013 when she saw Dr. Mojid in the Lincoln County Sheriff's Office Medical Department. Claimant testified she gave the nurse at the medical department a description of the incident and told her about the Lysol exposure and her symptoms.

The medical department's records indicate Claimant had a history of asthma and was having problems with shortness of breath, wheezing and dry cough. Dr. Mojid prescribed Vantin and a Medrol Dose Pak.

Claimant testified she has had asthma since birth, but her asthma was under control before July 7, 2013 and that it did not stop her from or living a normal life. Claimant testified before July 7, 2013, she ran every single day, 12 miles a day, and lifted weights three days a week. Claimant testified since July 7, 2013, she is no longer able to run marathons or engage in the same workout routine. She avoids going outside when it is humid, when her husband mows the yard, or when crops down the road have been sprayed. Claimant testified she is unable to use certain cleaning products. Claimant testified she spends most of her time at home watching television because of her breathing issues. She estimated she can only walk around 100 feet before she has to stop. She does not think she can hold a job because she has difficulty carrying on a conversation.

Ms. Brittany Watt testified she was a corrections office trainee at the Lincoln County Sheriff's Department on July 7, 2013. She described the size of the employee restroom as approximately three feet by five feet. On July 7, 2013 she was working at the booking desk. She observed Sgt. Daniels spray Lysol around the door of the employee restroom and in the hallway for approximately 20-30 seconds. Ms. Watt testified Claimant came out of the restroom coughing.

Thomas Jackson is a Deputy with the Lincoln County Sheriff's Office. In November 2013, he was working as a Detective for the Sheriff's Office and was asked to conduct surveillance on Ms. Schaefer. He observed and documented Claimant's location and activities between November 20, 2013 and December 5, 2013. He prepared a memorandum describing what he observed. He observed Claimant power walking and jogging on a trail near her home and patronizing Good Times Bar and Grill. Deputy Jackson described the interior of Good Times Bar and Grill as "smoky." He observed Claimant sitting at the bar and conversing with other patrons. He also spoke with Claimant while inside Good Times Bar and Grill. Deputy Jackson testified Claimant did not have any difficulty speaking with him or with other patrons. And he did not observe her use an inhaler while she was running or have any breathing difficulties during his surveillance.

Mr. Richard Vallie is a Field Investigator who conducted surveillance of Claimant for Intertel on May 15-16, 2015. Mr. Vallie also completed an Investigative Report outlining his observation of Claimant's activities.

On May 15, 2015, Mr. Vallie obtained video surveillance of Claimant walking into and out of a medical office building and thereafter followed her and her husband to Mustang Sally's,

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a bar in Troy, Missouri. He described Mustang Sally's as a "typical smoke-filled bar." Mr. Vallie observed a patron smoking no more than one table over from Claimant. He observed and secured video footage of Claimant inside Mustang Sally's for approximately forty-five minutes and exiting the bar. He testified Claimant did not have any difficulty breathing or talking during this period. On May 16, 2015, he observed Claimant inside Mustang Sally's again between 12:39 p.m. and 8:18 p.m. Mr. Vallie testified the bar remained smoky and Claimant showed no signs of difficulty moving and conversing with other patrons, some of whom were smoking.

Mr. Kenneth Schaefer, Claimant's husband, testified on her behalf. They have been married for eighteen years. He testified their relationship changed after July 7, 2013. He testified Claimant can no longer run or walk long distances, do housework, or hold a job.

Mr. Schaefer said they went to Mustang Sally's for the food and not to drink. He acknowledged there was smoke present in the establishment and estimated they left the bar around twenty to thirty times out of all the visits they made because of heavy smoke. When they did stay to eat, there was only light smoke and they sat at the end of the bar because it was open to the outside. He testified there were "smoke eaters" that filtered out the smoke and the front door to the facility was typically open as well.

EXPERT OPINIONS

Dr. Lillard prepared reports and testified on behalf of Claimant. In his September 3, 2014 letter to Claimant's attorney, Dr. Lillard stated pursuant to Claimant's history, her irritable cough and wheeze started after exposure to a significant dose of Lysol spray. Dr. Lillard indicated Claimant was seen at the ER after her work incident. Claimant denied having any prior issues with persistent cough.

In his September 3, 2014 correspondence, he compared Claimant's September 26, 2013 pulmonary function test to her March 11, 2014 spirometry. He opined she had a significant loss of lung function for a nonsmoker with no other significant exposure history and said her injury was secondary to the Lysol exposure. Dr. Lillard further opined she would be unable to hold down a job that would involve any exertional or conversational activities because of her ongoing cough. He provided an AMA impairment rating of 50% of the whole person pre-existing, and 50% of the whole person, as a result of the Lysol exposure and said she was 100% disabled.

Dr. Thomas Hyers, a board certified pulmonologist, examined Claimant, prepared four reports, and testified on behalf of Employer. Dr. Hyers reviewed Claimant's pulmonary function tests from August 20, 2008, and February 14, 2012, and opined Claimant had moderately severe airways obstruction prior to July 7, 2013. He testified Claimant sustained an exacerbation or aggravation of her asthma as a result of the July 7, 2013, exposure but that she had returned to baseline by September 26, 2013. Any symptoms thereafter were attributable to her ongoing chronic asthma. He based this opinion on his review and comparison of her pre and post-exposure pulmonary function tests.

Dr. Hyers opined Claimant could continue working. He rated her pre-existing PPD at 25% of due to her chronic asthma, and no PPD related to the work-place incident of July 7, 2013.

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Based upon a comprehensive review of the evidence, my observations of the witnesses at hearing, and the application of Missouri law, I find:

Under Section 287.020.2, an accident is "an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor."

Section 287.020.3 defines injury as an injury which has arisen out of and in the course of employment. Per Section 287.020.3(2), "an injury shall be deemed to arise out of the and in the course of employment only if it is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury."

A pulmonary or respiratory disease is an injury only if the accident is the prevailing factor in causing the resulting medical condition. Section 287.020.3(4). The prevailing factor is defined as the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Section 287.020.3(1).

In a workers' compensation case, Claimant carries the burden of proving all essential elements of her claim. *Fischer v. Archdiocese of St. Louis*, 793 S.W.2d 195, 198 (Mo. App. 1990), *overruled in part on other grounds by Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220, 230 (Mo. banc 2003). The injured worker must establish a causal connection between the accident and the claimed injuries. *Fischer*, 793 S.W.2d at 198.

In cases involving medical causation, which is not within the common knowledge or experience, the Claimant must present medical or scientific evidence showing the cause and effect relationship between the complained-of condition and the asserted cause. *McGrath v. Satellite Sprinkler Systems, Inc.*, 877 S.W.2d 704, 708 (Mo. App. 1994), *overruled in part on other grounds by Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220 (Mo. banc 2003). Where there are conflicting medical opinions, the fact finder may reject all or part of one party's expert testimony which it does not consider credible and accept as true the contrary testimony given by the other litigant's expert. *George v. Shop 'N Save Warehouse Foods, Inc.*, 855 S.W.2d 460, 462 (Mo. App. 1993).

Claimant was exposed to Lysol or Lysol-type fumes while in the employee restroom on July 7, 2013. The uncontroverted evidence shows that Sgt. Daniels sprayed the substance while standing outside of the restroom in the control area while Claimant was in the restroom with the door closed. Claimant sustained an asthma attack but was able to finish her shift and did not seek any medical treatment until July 11, 2017, four days later.

When Claimant was evaluated by Dr. Mojid on July 11, 2013, her primary complaints were shortness of breath, wheezing and dry cough. Claimant previously experienced these symptoms due to her asthma. She was prescribed a short course of steroids and an inhaler. Claimant had taken Prednisone and used inhalers prior to this incident. She did not receive any further medical treatment until she saw Dr. Lillard on August 19, 2013, and she continued working during this time.

Claimant has a long history of asthma and her treatment records from 2012 show that her asthma was not always controlled. Dr. King referred Claimant to the emergency room twice in

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February 2012, but Claimant declined each time. When Claimant saw Dr. Lillard on February 14, 2012, she described her asthma as poorly controlled. Claimant was not forthcoming about her asthma symptoms before July 7, 2013. She testified it did not interfere with her life. The medical records suggest otherwise. In addition, she testified at trial that she was able to run without difficulty before July 7, 2013, when the medical records indicate she had given up running because of a prior knee injury.

Dr. Hyers concluded Claimant suffered from chronic asthma that pre-dated the July 7, 2013, exposure. Her asthmatic condition was exacerbated by the inhalation incident but her condition returned to baseline as of September 26, 2013, based on his review of the spirometry test results of that date, and comparison of those results to her 2008 and 2012 spirometry test results. He attributed any ongoing symptoms after September 26, 2013, to her pre-existing chronic asthma. Dr. Hyers concluded Claimant's asthma was not made permanently worse by the July 7, 2013 exposure.

I find Dr. Hyer's opinions more persuasive than Dr. Lillard's. Dr. Hyers opinions are consistent with the objective medical evidence, which established Claimant had pre-existing asthma and that her asthma was not made permanently worse by the inhalation incident. Claimant's testimony is not credible or persuasive. Because Dr. Lillard relies on Claimant's untrustworthy statements, his opinion lacks foundation, and is not credible. Claimant failed to meet her burden of proving that her current condition is a consequence of the July 7, 2013 work event. The July 7, 2013 accident was not the prevailing factor in causing her current medical condition or resulting disability.

PERMANENT DISABILITY

Claimant testified at trial that she can no longer run, go outside when the humidity is high, or after her husband has mowed the lawn. She estimates she cannot walk more than a 100 feet before she develops breathing issues. She believes she is unable to hold a job because she cannot carry on a conversation and because activities cause her to have shortness of breath. I do not find Claimant's testimony with respect to her limitations to be credible, and it is contradicted by the testimony of other witnesses, as well as the surveillance films. Claimant entered a smoky bar where she sat, socialized, ate, and drank without any apparent discomfort or sign of distress.

Dr. Lillard testified Claimant would be unable to hold a job because of her "unremitting ongoing cough and intermittent wheeze." He provided a disability rating of 50% of the body due to the July 7, 2013 Lysol exposure.

This testimony is refuted by the video surveillance obtained by Deputy Jackson and Richard Vallie and their observations of her. Deputy Jackson's observations are consistent with those of investigator Richard Vallie. Deputy Jackson observed Claimant power walking, jogging, and patronizing a smoky bar on two separate occasions. During his two days of surveillance in May 2015, Mr. Vallie observed Claimant on two occasions at Mustang Sally's, a bar that allows smoking. On day two of his surveillance, Mr. Vallie observed Claimant inside of Mustang Sally's for over seven hours. The surveillance video he obtained showed Claimant talking, laughing, and walking without issue. Mr. Vallie also testified Claimant had no apparent breathing problems over the course of his two days of surveillance.

Claimant testified in person on July 19, 2018. She did not cough or wheeze during the entirety of the proceedings which lasted several hours.

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CONCLUSION

Claimant failed to meet her burden of proof that the July 7, 2013 incident is the

prevailing factor in causing her current condition. Because she did not sustain a permanent

injury, or any permanent disability, her claims for compensation against the Employer and the

SIF are denied and the remaining issues are moot.

I certify that on 9-14-18,

I delivered a copy of the foregoing award

to the parties to the case. A complete

record of the method of delivery and date

of service upon each party is retained with

the executed award in the Division's case file.

By *ap*

Made by: *margaret D. Landolt*

MARGARET D. LANDOLT

Administrative Law Judge

Division of Workers' Compensation

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