Wednesday, January 18, 2017

No "equal exposure" defense in occupational disease cases.

Lankford v Newton County
SD 34269 (Mo. App. 2017)
(Jan 17, 2017)

The court of appeals affirmed an award of total disability and death benefits to an investigator who died from complications of a lung biopsy.

Claimant had undergone a biopsy to evaluate his lung, he sustained a stroke after the surgery, and resulted in severe problems regarding the use of his arms, his ability to walk, talk and breathe.  He was unable to return to work due to his symptoms.  The surgery removed 1/2 of his right lung, which was ultimately found not to be cancerous.Claimant died from complications of pneumonia and COPD. 

He was diagnosed with COPD several years earlier as a result of ammonia exposure from investigating a meth lab.  He smoked frequently The claimant's expert identified an MIA infection on biopsy. 

The court describes claimant took frequent smoke breaks on the roof of the court house, that he would discuss business on the roof with co-workers, and went to the roof because it was quiet and helped him "think about" his cases.  Claimant alleges he developed pneumonia and recurrent bronchitis symptoms a result of exposure to fungus in pigeon droppings on the roof. 

Claimant's expert concluded a biopsy identified a fungus and a bacteria which he felt most likely flowed from exposure to pigeon droppings, that the lobectomy was necessary to treat the infections, and the stroke was a natural and probable consequence of treatment and the hemiparesis and cognitive dysfunction rendered him unemployable.  He agreed that claimant's smoking habits were also contributing causes to his death. 

The employer's expert agreed that claimant's diagnosis of MIA, a bacterial infection, supported the need for the biopsy.   An infectious disease specialist indicated claimant could have contracted MIA from occupational or non-occupational exposure and could not conclude it was more likely work related.  An internist concluded the prevailing factor in his MIA was smoking. 

The ALJ awarded total disability benefits on March 2015and found claimant's expert more persuasive that claimant developed MIA from exposure to pigeon droppings and that his subsequent need for surgery, and complications from the biopsy , all flowed from investigating that condition.  The employer was ordered to pay back benefits of $167,811 and ongoing benefits for his surviving wife.

The employer raised a defense that the Commission erred when it reached the legal conclusion that the  claimant had no burden to show he had a greater exposure at work than exposure away from work applying the "equal exposure" defense  in 287.020.3(2).  The court affirmed this was not a required element to prove an occupational disease.

Proof of an accident is governed by 287.020. 

Proof of an occupational disease is set forth in 287.067.1&2. 

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.  (emphasis added)

2. An injury 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.
Section 287.020.2 provides additional element for accident:

(2) An injury shall be deemed to arise out of and in the course of the employment only if:
(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and (b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life. (3) An injury resulting directly or indirectly from idiopathic causes is not compensable. (4) A cardiovascular, pulmonary, respiratory, or other disease, or cerebrovascular accident or myocardial infarction suffered by a worker is an injury only if the accident is the prevailing factor in causing the resulting medical condition.

The court of appeals found  strict construction does not include the equal exposure defense for occupational disease. The court noted that 2005 amendments to 287.067 removed the cross reference to 287.020 and the phrase "An occupational disease is compensable if it is clearly work related and meets the requirements of an injury which is compensable as provided in subsections 2 and 3 of section 287.020"  State ex rel KCP & L Greater Mo Operations Co v Cook, 353 S.W3d 14 (Mo. App. 2011), Amesquita v. Gilster-Mary Lee Corp, 408 S.W.3d 293 (Mo.App. E.D. 2013).

The court found the commission correctly found different elements of proof to establish an accident and to establish an occupational disease.

The commission found evidence that the bacterial infection MIA was not an ordinary disease of life to which the general public is exposed outside of employment.   The commission noted defense experts did not dispute the assertion that pigeon droppings might be possible source of infection, although one expert felt the prevailing factor was smoking (10x a day) or that prevalence in the community made the condition an ordinary disease of life.

The equal exposure defense is problematic even in accident cases.  It is unclear that the employer would have necessarily prevailed if the case was remanded for the Commission to apply to equal exposure analysis.   Most interpretations in accident  cases have been very fact specific regarding the exact risk factor involved in the accident and whether it had equal exposure away from work which renders the defense weak to meaningless in most scenarios.  This interpretation has been based on "strict construction." 

The testimony  anticipated an equal exposure argument. The surviving wife testified she personally observed bird poop, she not only visited the roof a lot but "120 times" and that she recalled "each time" the pigeon droppings were "fresh and dry."   It is unclear there was any evidence that claimant had been exposed to pigeons, or rooftops, or bird droppings in a non-employment capacity.

The occupational disease statute allows the "ordinary disease of life" defense compared to the "general public." .  The court did not interpret that provision  but affirmed the award based on a prior  determination of credibility.

The employer argued its experts were more credible and may have developed the legal defense of equal exposure the first time on appeal to the commission.


Head v Harley-Davidson
2017 MOWCLR  Lexis (Feb. 1, 2017)

Head  specifically references Lankford that occupational disease does not require consideration of the "unequal exposure" element in an accident claim.

The commission affirmed a temporary award for treatment of the shoulder.  The employer relied upon an opinion from its medical director based on a records review that claimant's impingement or cuff problems were better explained by age than any work exposure.   The ALJ found the claimant's expert more persuasive who had personal experience viewing work activities.  The temporary award and appeal was over a referral to a shoulder surgeon for further assessment.

The parties stipulated that the only issue was whether claimant sustained an occupational disease. .  The ALJ found claimant had an "accident."  The Commission ultimately made an additional finding that claimant also sustained an "occupational disease" consistent with the stipulated disputes. 

Claimant described both a single event and repetitive duties as the basis for her claim.  The Commission found expert opinion that alternately supported an accident claim did not preclude reliance on expert opinion that repetitive trauma also could cause an occupational disease.