Woman’s colon removed after job cleaning linens at nursing home
By: Allison Retka
A Missouri appeals court overruled both an administrative law judge and the Labor and Industrial Relations Commission to award workers. compensation to a nursing home worker.
The worker, Barbara Vickers, claims she contracted a bacterial disease while laundering dirty linens at the Missouri Veterans Home in Cameron.
Vickers filed her workers’ compensation claim in late 2004, before significant legislative changes to the state’s worker’s compensation law.
For this reason, the Missouri Court of Appeals Western District’s decision in Vickers v. Missouri Department of Public Safety (WD69233) might not extend to claims filed after the 2005 changes, said Mark J. Murphy, the Liberty attorney for Vickers.
Still, the Western District leaned heavily on the old statute to rule Vickers adequately established a probability that she contracted the bacterial infection from her work at the state-run facility.
“The disease here is not an ordinary disease of life to which the general public is exposed outside of employment, as contemplated by Section 287.067,” the Western District ruled in an opinion written by Judge Harold L. Lowenstein.
Vickers had worked for the veteran’s nursing home less than five months when she saw a doctor for a sinus infection. After taking antibiotics prescribed by the doctor, she fell violently ill and went to the emergency room for treatment.
Doctors told Vickers she had contracted clostridium difficile, known as “C diff,” a bacterial infection that can lie dormant for months or years. Individuals can carry C diff for years without showing symptoms. In most cases, the use of antibiotics triggers a C diff infection.
After being diagnosed with C diff, Vickers immediately underwent surgery, in which surgeons removed all but 6 to 8 inches of her colon. She uses a colostomy bag and is disabled, Murphy said.
When Vickers’ claim went before an administrative law judge, the appeals court noted the judge incorrectly stated that she worked in only one unit of the nursing home and proved no evidence that any C diff patients were housed in the unit.
The Judge denied Vickers’ compensation claim, as did the Labor and Industrial Relations Commissions, although the commission noted that Vickers worked in all four units of the nursing home. Even given that fact, Vickers’ didn’t do enough to prove she was exposed to the bacteria at work, the commission decided.
Murphy said it wasn’t easy to prove a causal connection between Vickers’ condition and an occupational disease.
“There’s clearly no smoking gun, no videotape of her ingesting the bacteria,” he said.
But an infectious disease expert testified that Vickers’ constant exposure to the bodily fluids of multiple patients infected with C diff put her at a much higher risk than other individuals, Murphy said.
The Western District agreed, saying the record established Vickers was exposed to C diff while on the job.
Kristi L. Pittman, a former assistant attorney general who represented the state nursing facility before the appeal, declined to comment on the decision because she is no longer the with the Attorney General’s Office. Pittman is an associate with Withers, Brant, Igoe & Mullennix in Kansas City.
The 2005 changes to Missouri’s workers. compensation law directed judges to apply “strict construction” to statutes when considering claims for occupational disease. State appellate courts are still working to interpret the statute and build up caselaw on the new measure.
“There has to be a statutory framework in place for people like Ms. Vickers who are constantly putting themselves in high-risk situations,” Murphy said, “I don’t think that’s too much to ask. All she did every day was do her job.”
MISSOURI LAWYERS WEEKLY, Volume 23, Number 18