GARY FONTAINE, Applicant

COUNTY OF BROWN, Employer

COUNTY OF BROWN, Insurer

The self-insured employer, County of Brown, submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on January 3, 2007. The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue are whether or not the applicant contracted histoplasmosis arising out of and in the course of his employment with the employer, and if so, what are the nature and extent of disability and liability for medical expense.

The commission has carefully reviewed the entire record in this matter and hereby affirms in part and reverses in part the administrative law judge's Findings and Interlocutory Order. The commission makes the following:

On or about May 14, 2003, the applicant came down with a fever, chills, body aches, shortness of breath and a nonproductive cough. He was ultimately diagnosed with pulmonary histoplasmosis, for which Dr. Sarah Luloff treated him. Dr. Luloff released him for full-time work without restriction in January 2004, but assessed 10 percent permanent partial disability which she attributed to "fatigue" on her WKC-16-B dated July 14, 2006. Dr. Luloff also checked the direct causation and occupational disease causation boxes on her WKC-16-B, noting on that form that the applicant was exposed to "significant soil inhalations and decayed vegetation." In a letter to applicant's attorney dated July 15, 2004, Dr. Luloff wrote:

"Stumping was likely the source of his exposure to histoplasmosis, as it would have led to a very high inoculum of fungal spores. He did go turkey hunting earlier that spring and described no disruption of soil on that excursion. Temporally, the stumping would have occurred at the right time to cause his symptoms of histoplasmosis to present one to two weeks later."

In a clinic note dated June 11, 2003, Dr. Luloff wrote:

"The timeframe of one to two weeks, and the severity of his pulmonary symptoms, certainly makes it possible that this was his source for exposure. This potentially could have exposed him to a high inoculum of fungus."

Timothy Hoppe credibly testified that subsequent to the stumping work he was also diagnosed with histoplasmosis, although he did not experience the symptoms that the applicant did. The applicant went turkey hunting on or about April 25, 2003, and Hoppe went turkey hunting on or about May 2, 2003. Both men shot and killed a turkey during their respective hunting trips. The applicant picked up his dead turkey by the feet and threw it into the back of a pickup truck. The turkey was taken to the applicant's uncle's garage where the uncle dipped it into a barrel of water and then hung it from a garage rafter. Thereafter, the applicant and several other individuals plucked the feathers off of it, and the applicant and his uncle field dressed it before washing it and placing it into a freezer.

At the employer's request, Dr. David Wagner reviewed the applicant's medical records and submitted a report dated January 14, 2004. He concurred with the diagnosis of histoplasmosis, but opined that he could not state to a reasonable degree of medical probability that the work exposure was the source of that disease. When asked whether it was possible to tell whether the turkey hunting or the stump grinding activity was the source of the histoplasmosis, Dr. Wagner noted that there were no soil samples to directly rule out either as a possible cause, but in his opinion the turkey hunting would be the "more likely" cause. Dr. Wagner indicated that the chart notes he possessed ended as of August 2003, and therefore he could not comment on healing or future treatment necessity.

The administrative law judge accepted Dr. Luloff's opinion, and in an interlocutory order awarded the claimed temporary total disability as well as 10 percent permanent partial disability and medical expenses. The employer petitioned and argues: (1) that no evidence was presented establishing that the histoplasma fungus was present in the soil or tree stumps on which the applicant was working on May 1, 2003; (2) Dr. Luloff's opinion is ambivalent and based on speculation; and (3) the 10 percent PPD rating is unsupported by any physical limitations or other credible explanation.

What is the standard for determining causation in cases involving germ-borne disease? A 1927 Supreme Court Case, Pfister & Vogel L. Co. v. Industrial Comm., 194 Wis. 131, 133-34, 215 N.W. 815 (1927), provides language that remains good law today:

"It is often impossible to find the source from which a germ causing disease has come. The germ leaves no trail that can be followed. Proof often does not pass beyond the stage of possibilities or probabilities, because no one can testify positively to the source from which the germ came, as can be done in the case of physical facts which may be observed and concerning which witnesses can acquire positive knowledge. Under such circumstances, the Industrial Commission or the court can base its findings upon a preponderance of probabilities or of the inferences that may be drawn from established facts. Vilter Mfg. Co. v. Industrial Comm., 192 Wis. 362, 365, 366, 212 N.W. 641.

Clarification of the Pfister & Vogel decision was provided in Gmeiner v. Industrial Commission, 248 Wis. 1, 4, 20 N.W.2d 543 (1945):

The term "preponderance of probabilities" is doubtless not a wholly accurate one. Indeed, it is literally impossible to have a preponderance of probabilities. All that the court meant by the use of the term was that in a given situation the inferences are strong enough to point to a fact as a probability and not a speculative possibility. So stated, it is merely another way of saying that the inferences are in such shape as to constitute substantial evidence to sustain the findings of the commission.

In these cases, the commission is left to determine where the line between probability and speculation will be drawn, and it must be drawn on a case-by-case basis. The case at hand presents a difficult set of circumstances. The histoplasmosis could have come from the work exposure, the turkey hunt, or elsewhere. The hearing evidence indicates the fungus itself is present in most soil in the central United States, and that turkeys can be carriers. There was no showing of any particular concentration of the fungus at the park in question, but the work involved substantial exposure to soil that probably did contain the histoplasma fungus. Hoppe, who worked alongside the applicant, was also medically shown to have been exposed to the fungus. While both Hoppe and the applicant went turkey hunting, they went on separate trips. It is inferred to be less probable that both were exposed to the fungus from separate hunting trips, than that both were exposed from working together to remove the stumps. Additionally, as the administrative law judge noted, the evidence reveals that the fungus is spread through contact with airborne spores. The applicant credibly testified that the turkey he shot was dead by the time he reached it, and that his uncle dipped the turkey in a barrel of water before its feathers were plucked. The evidence reveals that wetting surfaces is useful in preventing spread of the spores.

While Dr. Luloff's clinic note of June 11, 2003, does contain qualifying language regarding the issue of causation, her WKC-16-B of August 24, 2006, is straightforward and attributes causation to the work exposure. Dr. Wagner's opinion contained qualifying language of its own. He indicated: "I cannot state to a reasonable degree of medical probability," that the work exposure was causative of the applicant's histoplasmosis. He also indicated that there were no temporally-related soil samples that could be used to "rule in or rule out" causation associated with either the turkey hunting or the stump grinding activities.

Based on all the evidence of record, the commission finds that the applicant was exposed to the histoplasma fungus while at work on May 1, 2003, and that this exposure resulted in his contraction of histoplasmosis.

The applicant's histoplasmosis caused temporary total disability from May 14, 2003 to January 12, 2004, a period of 34.5 weeks, which at the applicable rate of $567.79 per week totals $19,588.75. Evidence of record indicates that the applicant may have received nonindustrial disability benefits from the employer during the period of temporary total disability, and pursuant to Wis. Stat. § 102.30(7), this would result in offset of the nonindustrial benefits against the temporary total disability award. This decision will order payment of the full amount of temporary total disability, with the contingency that such payment is subject to offset by the nonindustrial disability amounts.

Dr. Lulloff's assessment of 10 percent permanent partial disability is supported only by her one-word description of "fatigue" written in box number 16 of her July 2006 WKC-16-B. This is not a credible basis upon which to base such a substantial award of permanent disability. At the same time, Dr. Wagner failed to give any rating of permanent disability, presumably because of his position on causation and because he did not have updated medical records. Given this medical evidence, the commission concludes that at this point it would be speculative to make any finding concerning the issue of permanent disability. The commission will therefore set aside the administrative law judge's finding of 10 percent permanent partial disability and remand the matter to the department solely with respect to the issue of permanent disability. The parties shall be given the opportunity for a new hearing to address only that issue, and thereafter the department shall issue a new order concerning it.

The parties agree that the reasonably required medical expenses enumerated in Applicant's Exhibit B have all been paid, except for $241.70 in reimbursement due the applicant. Jurisdiction will be reserved with respect to the possibility of additional medical treatment and disability attributable to the effects of the work-related histoplasmosis.

NOW, THEREFORE, this

The administrative law judge's finding regarding permanent partial disability is set aside, and opportunity for a new hearing is granted with respect to the issue of permanent disability. After such additional hearing, or after stipulated submission of evidence by the parties without a hearing, the department shall issue a new order addressing the issue of permanent disability.

Jurisdiction is reserved with respect to the issue of permanent disability, and with respect to the issues of additional medical expense and/or disability attributable to the effects of the work-related histoplasmosis.

Dated and mailed June 27, 2007
fontaga . wpr : 185 : 8   ND § 3.42

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The reversal of the administrative law judge's finding regarding permanent partial disability was based on the lack of credible and substantial medical evidence from any party concerning that issue. No credibility impressions of the witnesses at the hearing entered into the reversal of this finding.

 

cc:
Attorney Steven J. Snedeker
Attorney Kenneth R. Baumgart

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