STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

JAYSON A MILLER, Applicant

VILLAGE OF SOMERSET, Employer

WAUSAU UNDERWRITERS INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1996016100

A hearing was held before an administrative law judge (ALJ) for the Division of Worker's Compensation in the Department of Workforce Development in this case on March 16, 1998. The threshold issue in dispute before the ALJ was whether the applicant was an employe of the employer. If the applicant were determined to be an employe, further issues in dispute before the ALJ included the amount of applicant's wage for compensation purposes; whether the applicant sustained an injury arising out of his employment with the employer while performing services incidental to or growing out of that employment; the nature and extent of disability from any such injury; and liability for medical expenses. Deciding these issues substantially in favor of the applicant, the ALJ awarded approximately 10 weeks of temporary total disability and medical expenses.

The employer and insurer (collectively, the respondent) filed a petition for commission review. In its petition and accompanying briefs, the respondent challenges only the ALJ's finding that the applicant sustained a work-related parasitic infection arising out of his employment with the respondent employer. The commission concludes, therefore, that the respondent now concedes jurisdictional facts (specifically, the existence of an employe-employer relationship), and an average weekly wage of $200.

The issues in dispute before the commission, then, are whether the applicant sustained an injury arising out of his employment with the employer while performing services growing out of and incidental to that employment; the nature and extent of such an injury if proven; and liability for medical expenses.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant was convicted of a municipal traffic offense. At the time of the conviction, the applicant was not employed. He agreed to community service in lieu of his forfeiture. The municipal judge told him he could report to the employer's maintenance department as one option for community service. The applicant chose to do so.

On February 15, 1996, then, the applicant was assigned work in the employer's sewerage department cleaning sewage treatment equipment. Specifically, he was told to clean a "R.V." which he described as a large, round tank full of screens that separates garbage from sewage. The R.V. was covered with human waste.

The applicant began spraying the screens. Because he had to stand relatively close to the tank to do this, the water splashed back on him. At some point he asked the head of the sewerage department for protective clothes and goggles, as he was splashing human waste on his body and in his eyes. The head of the sewer department denied his request, and told him to clean the screens without protective clothing.

By the time the applicant finished spraying the screens he was covered with water and human waste. Indeed, as the applicant sprayed off the R.V. screens, water from the back-splash went in his mouth at one point. The applicant was allowed to go home after finishing only about five hours of work spraying the R.V. screens. The applicant's account of the working conditions is not contested.

The applicant began feeling ill, with stomach cramps, diarrhea and vomiting that evening. He reported to a hospital emergency room in Minnesota at 11:00 p.m. The note for the February 15 emergency room visit reports symptoms of abdominal pain, diarrhea and vomiting since 6:30 p.m. that day. The doctor's note reports that the applicant had eaten four-day-old sausage and gravy earlier that day. The emergency room report states that the applicant's son (who also ate the sausage and gravy) was not sick, and reports that the applicant had worked outside cleaning off sewer equipment earlier that day.

The applicant was given various medications by intramuscular injection and intravenously. He vomited once more while at the hospital. He eventually was released at 2:30 a.m. The note of the treating doctor, Merle Hillman, M.D., indicates the applicant's problem may have been due to food poisoning from the sausage and gravy.

The applicant returned to the hospital emergency room at 3:15 p.m. on February 16 and again saw Dr. Hillman. He complained of continuing diarrhea which did not respond to Imodium. He was no longer nauseous or vomiting, however. A stool sample showed an increased number of white cells, which led the doctor to wonder about infectious diarrhea due to Salmonella, Shigella or Campylobacter. Dr. Hillman ordered a stool culture.

The culture returned positive for Giardia lamblia, a parasitic intestinal infection. A colleague of Dr. Hillman's (Gerald Peterson, M.D.) prescribed additional medication to treat it on February 20, 1996. Dr. Hillman also prescribed Flagyl on or about March 2, 1996, and referred the applicant to Phil Disraeli, M.D.

On March 6, 1996, Dr. Disraeli noted continuing frequent diarrhea stools, which prevented the applicant from working. On or about April 1, Dr. Disraeli noted that the applicant's tests for Giardia antigen and fecal leukocytes were negative, meaning the parasite was no longer present, but the diarrhea and cramps continued. Exhibit 1, IME report page 9. Dr. Disraeli eventually released the applicant from work until May 1, 1996.

At the time of his illness, the applicant was living with his two year-old son. The applicant's son, who was toilet- trained by the time of the applicant's illness, was in day care. The applicant also testified the gravy and sausage were in fact only two or three days old, and that his mother and young son also ate it on February 15 without ill effect.

Both parties submit expert medical opinion on the issue of the relationship between the applicant's work exposure and his condition, and the extent of disability from that condition.

Treating doctor Hillman, as noted above, opined the applicant most likely contracted the Giardia lamblia parasite at work while cleaning out the sewerage tank on February 15, 1996. He therefore concludes the applicant's illness was the result of occupational exposure while cleaning out the sewerage tank for the employer on February 15, 1996. Exhibit C.

Treating doctor Disraeli described the occupational exposure to which the applicant attributed his condition as cleaning out sewerage tanks on February 15, 1996. He diagnosed the applicant's condition as Giardia enteritis, caused directly and as a result of the occupational exposure on February 15, 1996. He opined the applicant reached a healing plateau as of May 1, 1996, when he recovered without permanent disability or need for further treatment. Exhibit B.

The employer submits the report of its independent medical examiner, William Hogg, M.D., who conducted a record review. Dr. Hogg did not examine the applicant.

Dr. Hogg opined that many aspects of the applicant's diarrheal illness do not fit the pattern of Giardia Lamblia enteritis (Giardiasis). He also noted that while sewage can be the source of a Giardia infection, infection requires ingesting the Giardia cysts followed by a one to three week incubation period prior to the onset of symptoms.

In contrast, the applicant experienced symptoms less than one day after exposure. Dr. Hogg suggested a more likely source for the infection, then, was the applicant's son. According to Dr. Hogg, Giardia is not uncommon with children in the toddler age, particularly when groups of young toddlers who require diapers are in contact with one another.

Beyond that, Dr. Hogg suggested that the applicant's sudden onset of symptoms is not consistent with Giardia, no matter how contracted. Usually the onset is more gradual, and otherwise healthy people who have it may never even know. Vomiting is uncommon, and when diarrhea is present it is usually in the form of events separated by hours rather than every 15 minutes as the applicant experienced. Along these lines, the doctor cites a report which indicates that chance diagnosis of nonsymptomatic Giardiasis is not uncommon when treating other gastrointestinal problems.

Dr. Hogg's conclusion is simple. Either the applicant never had the Giardia parasite, or if he did, his symptoms continued after the parasite was treated and eradicated from his intestine. Either way, Dr. Hogg concludes, whatever was wrong with the applicant was not Giardia lamblia enteritis from his work exposure.

The commission concludes that Dr. Hogg gives the most credible medical opinion. In particular, the commission notes his statement that Giardia lamblia has a one week to three week incubation period. After reading Dr. Hogg's report, the commission is satisfied that it is highly unlikely that a Giardia infection would begin producing less than a day after exposure. Neither Dr. Disraeli nor Dr. Hillman specifically dispute Dr. Hillman's statement about the incubation period, nor does anything in the record. (1)

The commission realizes that the employer instructed the applicant to spray off the sewer screens covered with human waste; that he performed the job with water from a fire hose out- of-doors in February; and that the employer refused to provide him with protective clothing. The commission is also mindful that despite scientific advancement it is often impossible to find the definitive source of a virus, bacteria or parasite causing disease; often no one can testify positively as to the source as may be done in the case of physical facts which may be observed and concerning which witnesses can acquire physical knowledge. For this reason, in cases like this, the commission may base its findings on a preponderance of the probabilities or inferences drawn from established facts. (2)

Thus, the commission does not deny compensation here simply because the applicant cannot prove definitely that the Giardia lamblia parasite came from his employment exposure. Under other circumstances, the employment exposure might easily be viewed as the most likely source of infection. However, Dr. Hogg's credible testimony regarding the incubation period establishes that the source of the applicant's symptoms in the evening of February 15, 1996, could not have been the result of Giardia lamblia infection from his one-time exposure to the sewerage earlier that day.

NOW, THEREFORE, the Labor and Industry Review Commission makes this

ORDER

The findings and order of the administrative law judge are reversed. The application is dismissed.

Dated and mailed: August 31, 1998
millerj.wrr : 101 : 8 ND § 3.4  § 3.42

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

Because resolution of this case depended on the credibility of medical experts who did not testify rather than on the credibility of the applicant's hearing testimony, no credibility conference was necessary. Hermax Carpet Marts v. LIRC, case no. 97-1119 (Wis. Ct. App., June 23, 1998)(publication recommended), slip op. at 5.

cc: ATTORNEY STEVE M JACKSON
PARRONI SIEDOW & JACKSON SC

ATTORNEY JEFFREY J KLEMP
STILP & COTTON

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Footnotes:

(1)( Back ) Indeed, the Attorneys' Textbook of Medicine, § 49B.42(5) (MB 1998) reports that the incubation period for Giardia lamblia is usually one to three weeks, but may be longer. The Attorneys' Dictionary of Medicine (MB 1998) defines "incubation period" as "[i]n the development of an infectious disease, the period between the time the bacteria enter the body and the time when the first symptoms appear."

(2)( Back ) Pfister & Vogel L. Co. v. Industrial Commission, 194 Wis. 131, 133-34 (1928) and Vilter Mfg. Co. v. Industrial Commission, 192 Wis. 362, 366 (1927).