A state court has upheld a ruling that exposure to pigeon droppings at his workplace was the major cause of a disease that led to a worker’s death, therefore his widow gets workers’ comp benefits.
Terry Lankford worked as an investigator for the Newton County prosecutor’s office in Missouri.
When he started working for the prosecutor’s office, Lankford smoked in the basement of the courthouse where he worked. An assistant prosecutor suggested he go up on the roof to smoke, and after that he preferred the outside location because it was quiet and he could think about the case he was working on.
The courthouse roof was a popular place for pigeons, and the birds’ droppings accumulated there. Other employees within the prosecutor’s office would also smoke or talk with their co-workers on the roof.
Lankford left his job in December 2007 after lung surgery and a subsequent stroke left him unable to work. The surgery was to remove a lung nodule believed to be cancerous.
The nodule wasn’t cancer. It was identified as Cryptococcus (Crypto), a fungus found in bird droppings.
He filed for workers’ comp, claiming he was exposed to pigeon droppings and as a result suffered injury to his lungs and respiratory system. The county disputed the claim.
Lankford died due to complications of pneumonia and chronic obstructive pulmonary disease (COPD) on June 15, 2012.
His case went before an administrative law judge (ALJ) with Lankford’s widow as the beneficiary after his death.
Was workplace cause of disease?
A doctor (board certified in occupational medicine) who examined Lankford testified that the biopsy after his lung surgery showed the presence of crypto and a bacteria, Mycobacterium avium intracellulare (MAI), an infection which causes respiratory illness in birds and humans.
The doctor said the Crypto and MAI came from Lankford’s exposure to pigeon droppings on the courthouse roof during his employment, and “his occupataional activities … were the prevailing factor in causing the Crypto and MAI.” The doctor also said complications from the surgery (his stroke) were a direct consequence of the treatment Lankford received for the two infections. This left Lankford permanently and totally disabled, according to the doctor.
A board certified infectious disease physician evaluated Lankford for the county. He concluded Lankford didn’t have Crypto, did have MAI, but he didn’t think the MAI was caused by his exposure to pigeon droppings during his employment.
The doctor said MAI was so prevalent in the atmosphere that Lankford could have come in contact with it anywhere.
On cross-examination, the company’s doctor agreed that Lankford could have been exposed to MAI through his employment.
The ALJ found:
- Lankford’s job likely caused his MAI
- he experienced a greater risk of exposure to contracting MAI during his employment than in his non-work activities, and
- The testimony by Lankford’s doctor was more persuasive than the company doctor’s.
Lankford’s widow was awarded $167,811 in past permanent total disability benefits, and $502 a week for ongoing permanent total disability benefits for the rest of her life.
The Missouri Labor and Industrial Relations Commission affirmed the ALJ’s decision. A state appeals court recently ruled on the county’s most recent appeal.
The county argued before the appeals court that Lankford’s duties as an investigator never required him to be on the courthouse roof, nor did the county receive any benefit from Lankford going to the roof to be alone and smoke an estimated 10 times per day.
But the court noted that Lankford often discussed cases with co-workers who were also on the roof smoking, and his widow said he wasn’t exposed to pigeon droppings in any other part of his life.
The appeals court threw out this argument by the county.
The county also argued that ordinary diseases to which the general public is exposed to outside of employment aren’t compensable under workers’ comp.
But the court said that provision applied only to workplace accidents. Workplace diseases are covered under a separate section of the law which doesn’t include the provision.
For those reasons, the appeals court upheld the ruling by the ALJ. Lankford’s widow would get the lump sum payment for previous comp coverage and $502 a week for life.
(Terry Lankford v. Newton County, Missouri Court of Appeals, Southern Dist., Div. 2, No. SD34269, 1/17/17)
