Premium Standard Farms, Inc. v. Treasurer of the State

430 S.W.3d 351, 2014 WL 2054292, 2014 Mo. App. LEXIS 576
CourtMissouri Court of Appeals
DecidedMay 20, 2014
DocketNos. WD 76756, WD 76766
StatusPublished

This text of 430 S.W.3d 351 (Premium Standard Farms, Inc. v. Treasurer of the State) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Premium Standard Farms, Inc. v. Treasurer of the State, 430 S.W.3d 351, 2014 WL 2054292, 2014 Mo. App. LEXIS 576 (Mo. Ct. App. 2014).

Opinion

ANTHONY REX GABBERT, Judge.

Premium Standard Farms, Inc. (the “Employer”) and the Second Injury Fund (the “Fund”) appeal the Labor and Industrial Relations Commission’s (the “Commission”) decision awarding workers’ compensation to Marilea Navis (the “Employee”). The Employer and the Fund each raise one point on appeal. The Employer argues that the Commission erred in holding that the Employee’s work at the Employer’s facilities was a substantial factor in her contracting Legionnaire’s Disease because there was insufficient competent evidence on the record to support such a finding. The Fund argues that the Commission erred in finding it is liable for permanent and total disability benefits because the Employee was permanently and totally disabled by the last accident alone. We affirm.

Factual Background

The Employee began working for the Employer in December 1996. She started working as a farrower and was responsible for taking care of the sows and piglets. In February 2002, the Employee was demoted to the job of power washer. This job consisted of power spraying the walls, ceilings, pens, rooms, and concrete hallways of the various barns with hot water coming from a pressure washing hose and wand. The Employee’s only duties were to power wash the four barns during her eight hour shift. No power washing was done on the weekends. At the end of her shift on Friday, the Employee would put the hose and power spray nozzle away and would start again on Monday using the same hose and nozzle. The water supply used for power washing was hot water supplied [353]*353by a “Hotsy” unit that came from a room located at the end of the barns near the breeding barn. The water supply to the Hotsy room came from pipes that contained water from a surface pond. This water was filtered and sodium hypochlorite added to it.

The Employee’s last day of work was April 28, 2002. At that time, she complained of being fatigued and sick. The Employee was later diagnosed with Legionnaire’s Disease, which is a type of pneumonia contracted by the inhalation or aspiration of water particles contaminated with Legionella bacteria. The Employee was transferred to a hospital in Des Moines, Iowa. While there, the Employee was in a coma for two weeks and spent six weeks unconscious. As a result of her pneumonia, the Employee has shortness of breath and no stamina. Since her illness, the Employee has only worked at a local restaurant washing dishes for three hours a night for two or three nights a week. The Employee, however, did not have to wash the pots and pans and the owner •helped her with the lifting and allowed her to take breaks any time she needed.

The Employee brought a workers’ compensation claim against the Employer and the Fund, claiming that she acquired the Legionella bacteria while working for the Employer and is now permanently and totally disabled. On May 14, 2012, the Employee’s claim was heard before an ad-mistrative law judge (ALJ).

The Employee testified that, while performing her job, she had problems with water and mist spraying back onto her. When she sprayed the barns, the hog manure and afterbirth would splatter on her and she would be covered by the hog waste material. There were also puddles of leftover water that she sprayed into, as well as puddles of hog urine and manure. The Employee also testified that she had been a heavy smoker and drinker prior to her injury but quit drinking in 2002 and quit smoking in 2011. Additionally, the Employee denied being aware of any prior breathing problems before her illness.

Dr. Beller testified as a medical expert for the Employee. Dr. Beller examined the Employee on July 1, 2008. Dr. Beller found that the Employee had a pre-exist-ing condition of chronic obstructive pulmonary disease (COPD). He also found that the Employee had scarring in her lower lungs caused by her pneumonia. Dr. Bel-ler testified that the pneumonia was due to Legionella bacteria that the Employee was exposed to power washing the Employer’s hog barns. He further testified that the Employee would need future medical treatment to cure and relieve her of her work-related condition.

Mary Titterington, a vocational rehabilitation counselor, also testified for the Employee. She testified that there is no expectation that the Employee could perform any job as it is customarily performed in the open labor market. She further testified that she is not a candidate for vocational training.

The Employer presented several medical experts. One of the medical experts was Dr. David McKinsey, who did not personally examine the Employee. After reviewing her records, he determined that the Employee had Legionnaire’s Disease but concluded that she was not exposed to the Legionella bacteria while working for the Employer. Dr. McKinsey testified that Legionella bacteria could not survive in the water that the Employee was exposed to because the water had been heated, filtered, and chlorinated. Dr. McKin-sey admitted that he had no evidence of the time, temperature, or flushing components in April 2002 when the Employee became sick.

[354]*354Another medical expert for the Employer was Dr. Harold Barkman, Jr., who personally examined the Employee. He testified that he found that the Employee had COPD as well as an old case of pneumonia. He also testified that he was unable to establish any relationship between her employment and her pneumonia. Furthermore, it was Dr. Barkman’s belief that the Employee never had Legionnaire’s Disease.

The Employer also had Brian Paulsen and Dr. Allan Schmidt testify. Paulsen is the Employer’s Director of Environment, Health, and Safety. He testified about the facilities, including where the water came from and how it was treated. Lastly, Dr. Allan Schmidt, a clinical psychologist, testified that the Employee had no prior psychological issues that would be a hinderance to her employment or her ability to receive employment.

The ALJ determined that the Employee was exposed to Legionella bacteria while operating a power washer for the Employer. This exposure was the cause of her pneumonia which scarred her lungs. The ALJ ordered the Employer to pay the Employee $63,357.43 and ordered the Fund to pay the Employee $290.25 per week commencing 200 weeks after September 6, 2002, continuing weekly for the remainder of the Employee’s lifetime. The ALJ also awarded the Employee future medical treatment as was reasonable and necessary. The Employer and the Fund appealed to the Commission, which affirmed the workers’ compensation award but reversed the awarding of future medical treatment.1 Both the Employer and the Fund appeal.

Standard of Review

Section 287.495.1, RSMo 2000, provides that when reviewing a final decision of the Commission, this Court shall only review questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following reasons and no other: (1) That the Commission acted without or in excess of its powers; (2) That the award was procured by fraud; (3) That the facts found by the Commission do not support the award; and (4) That there was not sufficient competent evidence in the record to warrant the making of the award. Spencer v. Sac Osage Elec. Co-op., Inc., 302 S.W.3d 792, 799 (Mo.App.2010).

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430 S.W.3d 351, 2014 WL 2054292, 2014 Mo. App. LEXIS 576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/premium-standard-farms-inc-v-treasurer-of-the-state-moctapp-2014.