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Fungal infection due to trenching on the job or hay on employee’s hobby farm?

An employee contracted a fungal infection in his lungs while digging a trench, but his employer claimed he got the infection while bailing hay on his hobby farm. Was the employee able to get benefits? 

Joe Butler, an employee at the Oneida Water Company for nearly 20 years, was sent out with five other employees to dig a trench and install a water line near the county landfill on Feb. 20, 2013.

After breaking through asphalt and rock on the surface, the workers found themselves digging into soil that was very damp.

Two days later, Butler began to feel sick, with symptoms similar to severe bronchitis, and by Feb. 28 he was admitted to a hospital where a biopsy revealed he had contracted invasive pulmonary aspergillosis.

Aspergillus is a common fungus which is found anywhere there is moisture, but will only make people sick if they have bad emphysema or a suppressed immune system.

Butler, who was a healthy adult and never used a sick day, had neither.

While in the hospital, a doctor placed Butler on restrictions, and he was told he could only return to work if the restrictions were removed.

The other five employees who helped dig the trench also got sick and missed work with symptoms similar to Butler’s, but they all recovered. None of them were tested for, or showed signs of, the fungal infection.

Butler never returned to the water company. He filed a workers’ comp claim saying he was exposed to the fungus while digging the trench.

The water company’s insurance carrier, Tennessee Municipal League Risk Management Pool, said the infection could not be fairly traced to his employment since Butler also owned a small hobby farm and could have contracted the fungal infection while bailing moldy hay.

A trial court upheld the denial.

6 with bronchitis at same time? ‘Very coincidental’

Butler took his case to an appeals court where he argued the only place he could have gotten the fungal infection was while digging the trench at the landfill.  He claimed he’d handled the hay on his farm the same way he did other years and never got sick before.

Testimony from the other five employees established that everyone who worked in the trench that day fell ill a few days after the job with symptoms similar to bronchitis.

Five doctors, acting as experts for Butler, testified that he must have had a “massive exposure” to the fungus to contract the infection since he was in good health before digging the trench, and while they conceded that kind of exposure could occur from moldy hay, it was unlikely. One doctor told the court the “medical literature does not indicate such exposure on farms.”

Two of the doctors also said it would be “very coincidental” that all six workers contracted bronchitis at the exact same time.

The two doctors testifying for the insurance company felt Butler was already contaminated by fungal spores, which he was exposed to while bailing hay, before he went to the hospital.

One insurance company doctor felt that while Butler was in the hospital and undergoing steroid therapy, his immune system was weakened, which then allowed the infection to take root.

The other doctor said there was really no good way to tell where Butler contracted the infection since no tests of the soil from the work site or hay from the farm had been done. However, he felt it was much more likely Butler was infected while bailing moldy hay on his farm.

When it came to a decision, the appeals court recognized that while determining cause can’t be based on speculation or conjecture, it also doesn’t require absolute certainty.

The court agreed it was “strangely coincidental” all six workers suffered a respiratory illness at the same time only days after digging the trench.

It also found that while the doctors on both sides disagreed on where the massive exposure to the fungus took place, all of them used the terms “could have” or “most likely” when asked if the infection occurred at the landfill work site.

Based on that reasoning, the appeals court reversed the trial court’s decision and granted Butler benefits.

(Butler v. TN Municipal League Risk Mgmt. Pool, TN Supreme Court of Appeals, No. E2017-01981-SC-R3-WC, 1/16/19)

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