Johnson v. Peco Foods, Inc.
| Decision Date | 27 April 2022 |
| Docket Number | CV-21-481 |
| Court | Arkansas Court of Appeals |
| Parties | JEFFREY JOHNSON APPELLANT v. PECO FOODS, INC.; OCCUSURE CLAIMS SERVICES, LLC; AND DEATH & PERMANENT TOTAL DISABILITY TRUST FUND APPELLEES |
APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO G805984]
Laura Beth York, for appellant.
Gill Ragon Owen, P.A., by: Jason A. Lee, for separate appellee Peco Foods, Inc.
Appellant Jeffrey Johnson suffered a cardiac injury when he was twenty-nine years old. He pursued workers'-compensation benefits, contending that he sustained a compensable injury in the course and scope of his employment with appellee Peco Foods, Inc. ("Peco"). An administrative law judge (ALJ) determined that his injury was compensable and awarded benefits.[1] The full Arkansas Workers' Compensation Commission, however, reversed the order of the ALJ. Johnson timely appealed to this court, where he contends that the Commission erred in determining that his injury was not compensable. We reverse and remand.
I. Background
In May 2018, Johnson began working for Peco, a poultry producer. During his new-employee orientation, a company representative advised him that most employees "would come down with a virus" due to working in a poultry-processing environment but that the virus "would pass in a week."
Johnson was placed in the "Live Hang" department at Peco where his job duties were to grab live chickens by their feet and hang them upside down. He described the working conditions in the poultry plant as "horrible." He explained that there were chicken feces all over the floor and all over the workers on the line. Johnson would frequently be "flogged" by the chickens with their wings, pecked with their beaks, and scratched with their spurs. His only safety equipment consisted of a beard net, a set of gloves, and safety glasses. Johnson was repeatedly scratched on his arms, and according to Johnson, "the pee, the poop . . . just . . . soaked in through the sores" and cuts and scratches on his arms.
Soon after starting working at Peco, Johnson began experiencing health complications. He developed rashes on his arms, chest and stomach, which he repeatedly reported to the company nurse. She gave him Desitin, a diaper-rash cream, to apply to his rash, but the rash did not resolve. Instead, he developed other symptoms, including nausea, vomiting, diarrhea, and hot-and-cold temperature swings. He reported these new symptoms to the nurse as well but was offered no medical treatment other than the diaper-rash cream. Johnson's symptoms did not abate but "just kept getting worse and worse and worse."
When his symptoms did not improve, Johnson was allowed to move to a different department called "Evest." In this department, the chickens were defeathered and decapitated, and Johnson's duties included pulling the heads off of birds that had not been properly decapitated. Once again, the only safety equipment he was given consisted of a beard net, safety glasses, and gloves.
Johnson worked both the Live Hang and Evest departments for several weeks, but his symptoms stayed the same.[2] He continued to report his medical problems to the nurse, and she continued to offer diaper-rash cream as the only treatment. While other workers also experienced similar symptoms (rashes, nausea, vomiting, and diarrhea), they got better; Johnson did not. Despite the severity of his symptoms, he never went to the emergency room or other doctor because his supervisor told him that he would be fired on the spot if he did.
On July 8, 2018, two months after he started working at Peco, Johnson was found unresponsive and cyanotic. He was rushed to the hospital, admitted to intensive care, and treated for cardiopulmonary arrest and acute hypoxemic respiratory failure.
II. Medical Evidence During his hospitalization, Johnson received treatment from Dr. Wilber. Dr. Wilber noted that the cause of Johnson's cardiomyopathy was "unclear at this point." Dr. Wilber did, however, enter progress notes reflecting that Johnson worked at a chicken plant, positing, and "possible viral syndrome causing a viral cardiomyopathy." In a July 14 progress note regarding Johnson's cardiomyopathy, Dr. Wilber stated: In addition to Dr. Wilber, Johnson was treated by Dr. Godfrey during his hospitalization. Dr. Godfrey discussed with Johnson and his family "the possibility of a viral etiology with cardiomyopathy and subsequent cardiopulmonary arrest."
After his hospitalization, Johnson was treated by other physicians. Dr. Tedder, a cardiologist, noted that while Johnson had a family history of heart disease, Johnson himself did not have any prior cardiac history. In the "history of present illness," Dr. Tedder further noted that Johnson "had some type of virus 2 weeks prior to this event, that he contracted while at work on a chicken farm" and that "he had a viral type illness with a rash on his arms about 2 to 3 weeks prior to the event and could have developed a viral cardiomyopathy."
Johnson also began seeing Dr. Osborne as his primary-care physician after he was released from the hospital. In her assessment following his first visit, Dr. Osborne noted that Johnson "had been working in a chicken house and it was believed that he had suffered a viral cardiomyopathy." In both the "Active Problems" and "Past Medical History" portions of her office note, Dr. Osborne listed "systemic viral illness." Although she noted a family history of congestive heart failure, coronary artery disease, and myocardial infarction, she also wrote that Johnson was "thought to have suffered from viral cardiomyopathy from working in chicken plant." In fact, on November 5, 2019, Dr. Osborne wrote a letter in which she stated that she treated Johnson after his July 8, 2018 on-the-job injury for "viral cardiomyopathy resulting in cardiopulmonary arrest twice." She further stated, within a reasonable degree of medical certainty, that "the viral illness [Johnson] contracted at work caused the cascade of medical problems afterwards."
In response to Dr. Osborne's opinion, Peco submitted a letter from Dr. Michael Gelfand, an infectious-disease and internal-medicine specialist from Memphis. Dr. Gelfand stated that he never examined Johnson but had reviewed Johnson's medical records and his deposition. Dr. Gelfand concluded and opined that, among other things, he was unaware of any infection likely to be acquired from exposure to chickens that was expected to cause cardiomyopathy; in addition, Dr. Gelfand noted that there was no medical evidence of an infectious etiology to Johnson's illness and that no viral studies had been done.
III. Proceedings Before the Commission
Johnson filed a claim for workers'-compensation benefits. Peco contested his claim, and the matter proceeded to a hearing before an ALJ. At the hearing, Johnson was the only witness to testify regarding the working conditions, his exposure to live chickens, and his symptoms resulting from his exposure to live chickens. The ALJ, observing that Peco did not call any witnesses to refute Johnson's testimony, permitted a negative inference to be drawn from the absence of such testimony. Thus, the ALJ found Johnson's testimony to be credible and undisputed and rejected Peco's argument that Johnson failed to prove he was infected with a virus, citing the medical histories that were replete with references to Johnson's "symptoms of the virus [he] suffered . . . while employed by Peco Foods."
Concerning the medical evidence, the ALJ rejected the opinion of Dr. Gelfand. In so doing, the ALJ noted that Dr. Gelfand had neither met nor treated Johnson. In addition, the ALJ commented that although Dr. Gelfand mentioned that his practice is in infectious diseases, a review of the articles and presentations in his CV did not "reveal any specific work with patients with exposure to chickens nor does he point to any such experience or to any specific medical records to support his conclusions."
On the other hand, the ALJ deemed Dr. Osborne's opinion to be reliable, noting that Dr. Osborne had been treating Johnson and coordinating his medical care from July 2018 to the time of the hearing. Because Johnson showed no signs of cardiac illness prior to his employment at Peco and his exposure to live chickens, and given Dr. Osborne's opinion that Johnson suffered a viral illness at work that caused his "cascade of medical problems," the ALJ concluded that the preponderance of the evidence demonstrated a causal connection between the work incident and the disabling injury and determined that Johnson had proved that he suffered a compensable injury.
Peco appealed to the full Commission, which reversed the opinion of the ALJ. First, the Commission found that Johnson had failed to prove that he sustained an injury caused by a specific incident, identifiable by time and place of occurrence, during the course of his employment as required by Arkansas Code Annotated section 11-9-102(4)(A)(i) (Repl. 2012). Second, the Commission determined that Johnson had failed to prove that his heart injury was caused by "some unusual and unpredicted incident" that was the major cause of the physical harm. See Ark. Code Ann. § 11-9-114(b) (Repl. 2012).
Next the Commission found that Johnson had failed to prove causation. Although the Commission acknowledged Dr. Osborne's opinion that Johnson's cardiac illness was caused by a viral infection linked to his exposure to chickens, it rejected her opinion in favor of...
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