It was just another day on the job for claimant when she put on her raincoat and boots, pulled out her sprayer, and spent the day getting splattered with hog manure, afterbirth and hog waste material. In 2002 she felt sick and fatigued and was hospitalized, went into a coma, and was treated for Legionnaire’s Disease.
The Court of Appeals recently affirmed an award of the Commission, Navis v Premium Standard Farms, 2013 Mo WCLR Lexis 128; that provided claimant 50% PPD against the employer and total disability against the Second Injury Fund. The employee contends she had scarring in her lungs despite her recovery from pneumonia. Premium Standard Farms, Davis v Treasurer of the State of MO, WD 76756 (May 20, 2014). The Commission reversed an award of open medical against the employer and concluded that claimant’s ongoing respiratory symptoms flowed from her pre-existing COPD.
The employer argued the commission should have believed its expert as a basis for reversible error. The court declined to disturb a credibility finding from the Commission. The employer offered two experts who provided conflicting conclusions: claimant never had Legionnaire’s disease and if she had it she certainly didn’t get it here. The ALJ found the employer’s expert did not have sufficient facts regarding the level of chlorination or heat in the water to conclude no reasonable likelihood of exposure at work. The ALJ noted: “She certainly would not have that extreme exposure outside of work.”
The Commission concluded the SIF was liable for prior COPD despite the Fund’s reliance on claimant’s denial of prior symptoms because SIF liability did not require difficulties from pre-existing conditions but flowed from the potential that the condition might combine with a work-related condition. The ALJ noted: “She wishes to have her total disability assessed against the employer alone. I do not know if the claimant is mistaken or if she is not being truthful and afraid she would not receive compensation due to the current financial condition of the Second Injury Fund.”
Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug’s Mo. Workers’ Comp Alerts.
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