Jeffrey Johnson v. Peco Foods, Inc. ( 2022 )

Cite as 2022 Ark. App. 187ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-21-481
Opinion Delivered April 27, 2022
JEFFREY JOHNSON
APPELLANT
APPEAL FROM THE ARKANSAS
V. WORKERS’ COMPENSATION
COMMISSION
PECO FOODS, INC.; OCCUSURE [NO. G805984]
CLAIMS SERVICES, LLC; AND DEATH
& PERMANENT TOTAL DISABILITY
TRUST FUND
APPELLEES
REVERSED AND REMANDED
PHILLIP T. WHITEAKER, Judge
Appellant Jeffrey Johnson suffered a cardiac injury when he was twenty-nine years
old. He pursued workers’-compensation benefits, contending that he sustained a
compensable injury in the course and scope of his employment with appellee Peco Foods,
Inc. (“Peco”). An administrative law judge (ALJ) determined that his injury was compensable
and awarded benefits.1 The full Arkansas Workers’ Compensation Commission, however,
reversed the order of the ALJ. Johnson timely appealed to this court, where he contends that
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The ALJ also determined that the medical treatment Johnson received was
reasonable, necessary, and related to his compensable injury and that he was entitled to
temporary total-disability benefits. Because the Commission reversed the ALJ’s initial finding
that Johnson’s injury was compensable, these issues are not before us in this appeal.
the Commission erred in determining that his injury was not compensable. We reverse and
remand.
I. Background
In May 2018, Johnson began working for Peco, a poultry producer. During his new-
employee orientation, a company representative advised him that most employees “would
come down with a virus” due to working in a poultry-processing environment but that the
virus “would pass in a week.”
Johnson was placed in the “Live Hang” department at Peco, where his job duties were
to grab live chickens by their feet and hang them upside down. He described the working
conditions in the poultry plant as “horrible.” He explained that there were chicken feces all
over the floor and all over the workers on the line. Johnson would frequently be “flogged”
by the chickens with their wings, pecked with their beaks, and scratched with their spurs.
His only safety equipment consisted of a beard net, a set of gloves, and safety glasses. Johnson
was repeatedly scratched on his arms, and according to Johnson, “the pee, the poop . . . just
. . . soaked in through the sores” and cuts and scratches on his arms.
Soon after starting working at Peco, Johnson began experiencing health
complications. He developed rashes on his arms, chest, and stomach, which he repeatedly
reported to the company nurse. She gave him Desitin, a diaper-rash cream, to apply to his
rash, but the rash did not resolve. Instead, he developed other symptoms, including nausea,
vomiting, diarrhea, and hot-and-cold temperature swings. He reported these new symptoms
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to the nurse as well but was offered no medical treatment other than the diaper-rash cream.
Johnson’s symptoms did not abate but “just kept getting worse and worse and worse.”
When his symptoms did not improve, Johnson was allowed to move to a different
department called “Evest.” In this department, the chickens were defeathered and
decapitated, and Johnson’s duties included pulling the heads off of birds that had not been
properly decapitated. Once again, the only safety equipment he was given consisted of a
beard net, safety glasses, and gloves.
Johnson worked both the Live Hang and Evest departments for several weeks, but his
symptoms stayed the same.2 He continued to report his medical problems to the nurse, and
she continued to offer diaper-rash cream as the only treatment. While other workers also
experienced similar symptoms (rashes, nausea, vomiting, and diarrhea), they got better;
Johnson did not. Despite the severity of his symptoms, he never went to the emergency room
or other doctor because his supervisor told him that he would be fired on the spot if he did.
On July 8, 2018, two months after he started working at Peco, Johnson was found
unresponsive and cyanotic. He was rushed to the hospital, admitted to intensive care, and
treated for cardiopulmonary arrest and acute hypoxemic respiratory failure.
II. Medical Evidence
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Johnson was eventually allowed to move to the “Breading Department,” where he
separated chicken parts and put the breading mixture into the machine. His symptoms,
however, still did not improve.
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During his hospitalization, Johnson received treatment from Dr. Wilber. Dr. Wilber
noted that the cause of Johnson’s cardiomyopathy was “unclear at this point.” Dr. Wilber
did, however, enter progress notes reflecting that Johnson worked at a chicken plant,
positing, “Acute viral myocarditis? Sounds like he may have a recent viral illness” and
“possible viral syndrome causing a viral cardiomyopathy.” In a July 14 progress note
regarding Johnson’s cardiomyopathy, Dr. Wilber stated: “Possibly viral induced. He had a
viral syndrome prior to coming to the hospital. He may have had an arrhythmia from a viral
cardiomyopathy.” In addition to Dr. Wilber, Johnson was treated by Dr. Godfrey during his
hospitalization. Dr. Godfrey discussed with Johnson and his family “the possibility of a viral
etiology with cardiomyopathy and subsequent cardiopulmonary arrest.”
After his hospitalization, Johnson was treated by other physicians. Dr. Tedder, a
cardiologist, noted that while Johnson had a family history of heart disease, Johnson himself
did not have any prior cardiac history. In the “history of present illness,” Dr. Tedder further
noted that Johnson “had some type of virus 2 weeks prior to this event, that he contracted
while at work on a chicken farm” and that “he had a viral type illness with a rash on his arms
about 2 to 3 weeks prior to the event and could have developed a viral cardiomyopathy.”
Johnson also began seeing Dr. Osborne as his primary-care physician after he was
released from the hospital. In her assessment following his first visit, Dr. Osborne noted that
Johnson “had been working in a chicken house and it was believed that he had suffered a
viral cardiomyopathy.” In both the “Active Problems” and “Past Medical History” portions
of her office note, Dr. Osborne listed “systemic viral illness.” Although she noted a family
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history of congestive heart failure, coronary artery disease, and myocardial infarction, she
also wrote that Johnson was “thought to have suffered from viral cardiomyopathy from
working in chicken plant.” In fact, on November 5, 2019, Dr. Osborne wrote a letter in
which she stated that she treated Johnson after his July 8, 2018 on-the-job injury for “viral
cardiomyopathy resulting in cardiopulmonary arrest twice.” She further stated, within a
reasonable degree of medical certainty, that “the viral illness [Johnson] contracted at work
caused the cascade of medical problems afterwards.”
In response to Dr. Osborne’s opinion, Peco submitted a letter from Dr. Michael
Gelfand, an infectious-disease and internal-medicine specialist from Memphis. Dr. Gelfand
stated that he never examined Johnson but had reviewed Johnson’s medical records and his
deposition. Dr. Gelfand concluded and opined that, among other things, he was unaware of
any infection likely to be acquired from exposure to chickens that was expected to cause
cardiomyopathy; in addition, Dr. Gelfand noted that there was no medical evidence of an
infectious etiology to Johnson’s illness and that no viral studies had been done.
III. Proceedings Before the Commission
Johnson filed a claim for workers’-compensation benefits. Peco contested his claim,
and the matter proceeded to a hearing before an ALJ. At the hearing, Johnson was the only
witness to testify regarding the working conditions, his exposure to live chickens, and his
symptoms resulting from his exposure to live chickens. The ALJ, observing that Peco did not
call any witnesses to refute Johnson’s testimony, permitted a negative inference to be drawn
from the absence of such testimony. Thus, the ALJ found Johnson’s testimony to be credible
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and undisputed and rejected Peco’s argument that Johnson failed to prove he was infected
with a virus, citing the medical histories that were replete with references to Johnson’s
“symptoms of the virus [he] suffered . . . while employed by Peco Foods.”
Concerning the medical evidence, the ALJ rejected the opinion of Dr. Gelfand. In so
doing, the ALJ noted that Dr. Gelfand had neither met nor treated Johnson. In addition,
the ALJ commented that although Dr. Gelfand mentioned that his practice is in infectious
diseases, a review of the articles and presentations in his CV did not “reveal any specific work
with patients with exposure to chickens nor does he point to any such experience or to any
specific medical records to support his conclusions.”
On the other hand, the ALJ deemed Dr. Osborne’s opinion to be reliable, noting
that Dr. Osborne had been treating Johnson and coordinating his medical care from July
2018 to the time of the hearing. Because Johnson showed no signs of cardiac illness prior to
his employment at Peco and his exposure to live chickens, and given Dr. Osborne’s opinion
that Johnson suffered a viral illness at work that caused his “cascade of medical problems,”
the ALJ concluded that the preponderance of the evidence demonstrated a causal
connection between the work incident and the disabling injury and determined that Johnson
had proved that he suffered a compensable injury.
Peco appealed to the full Commission, which reversed the opinion of the ALJ. First,
the Commission found that Johnson had failed to prove that he sustained an injury caused
by a specific incident, identifiable by time and place of occurrence, during the course of his
employment as required by Arkansas Code Annotated section 11-9-102(4)(A)(i) (Repl. 2012).
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Second, the Commission determined that Johnson had failed to prove that his heart injury
was caused by “some unusual and unpredicted incident” that was the major cause of the
physical harm. See Ark. Code Ann. § 11-9-114(b) (Repl. 2012).
Next, the Commission found that Johnson had failed to prove causation. Although
the Commission acknowledged Dr. Osborne’s opinion that Johnson’s cardiac illness was
caused by a viral infection linked to his exposure to chickens, it rejected her opinion in favor
of Dr. Gelfand’s conclusion that he was unaware of any viral infection that was likely to be
acquired from such exposure. The Commission credited Dr. Gelfand’s opinion that
Johnson’s cardiomyopathy “could not have been caused” by a chicken-related viral infection.
As such, the Commission concluded that Johnson had failed to prove by a preponderance
of the evidence that he sustained a compensable heart injury. 3 Johnson timely appealed the
Commission’s decision.
IV. Standard of Review
Our standard of review in workers’-compensation cases is well settled. On appeal, this
court views the evidence in the light most favorable to the Commission’s decision and
affirms the decision if it is supported by substantial evidence. Univ. of Ark. at Pine Bluff v.
Hopkins, 2018 Ark. App. 578, 561 S.W.3d 781. Substantial evidence exists if reasonable
minds could reach the Commission’s conclusion. Id. If reasonable minds could reach the
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The Commission also found that, to the extent Johnson alleged he suffered from an
occupational disease, he failed to prove by a preponderance of the evidence that his
employment caused his heart injury as is required under Arkansas Code Annotated section
11-9-601(E)(1)(B) (Supp. 2021). This finding, however, is not at issue in this appeal.
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result found by the Commission, then the appellate court must affirm, even when it might
have reached a different result from the Commission. Id.On appeal, we recognize the exclusive province of the Commission regarding the
credibility of witnesses and the weight to be given to their testimony. Evans v. Bemis Co., Inc.,
2010 Ark. App. 65, 374 S.W.3d 51. Thus, we are foreclosed from determining the credibility
and weight to be accorded to each witness’s testimony, and we defer to the Commission’s
authority to disregard the testimony of any witness, even a claimant, as not credible. Wilson
v. Smurfit Stone Container, 2009 Ark. App. 800, 373 S.W.3d 347. Likewise, we recognize the
Commission’s province to reconcile conflicting evidence and determine the facts. Eldridge v.
Pace Indus., LLC, 2021 Ark. App. 245, 625 S.W.3d 734. Thus, this court will reverse the
Commission’s decision only if it is convinced that fair-minded persons with the same facts
before them could not have reached the conclusions arrived at by the Commission. Prock v.
Bull Shoals Boat Landing, 2014 Ark. 93, 431 S.W.3d 858.
V. Discussion
As the claimant, Johnson bears the burden of proving a compensable injury. Sheridan
Sch. Dist. v. Wise, 2021 Ark. App. 459, 637 S.W.3d 280. Under Arkansas law, a “compensable
injury” is defined as “[a]n accidental injury causing internal or external physical harm to the
body . . . arising out of and in the course of employment and which requires medical services
or results in disability or death. An injury is ‘accidental’ only if it is caused by a specific
incident and is identifiable by time and place of occurrence[.]” Ark. Code Ann. § 11-9-
102(4)(A)(i). A compensable injury must be established by medical evidence supported by
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objective findings. Ark. Code Ann. § 11-9-102(4)(D). Johnson must meet his burden of proof
by a preponderance of the evidence. Ark. Code Ann. § 11-9-102(4)(E)(i).
Johnson argues that the Commission erred in finding that he failed to prove that he
sustained a compensable injury for four reasons: (1) the Commission erred in concluding
that he did not prove that he sustained an injury caused by a specific incident, identifiable
by time and place of occurrence, during the course of his employment; (2) the Commission
incorrectly concluded that he did not prove that some unusual and unpredicted incident
occurred; (3) the Commission “misrepresented” Dr. Gelfand’s opinion and what is needed
to prove causation in order to find that Johnson did not prove causation; and (4) he
sustained a compensable injury. We agree with Johnson’s third argument that the
Commission misrepresented or misinterpreted Dr. Gelfand’s medical opinion.
Here, Johnson claimed that he sustained a compensable injury by contracting a viral
infection at work that led to his cardiac injuries. Without question, Johnson experienced
cardiac problems. Before the Commission, the fundamental questions were whether
Johnson was infected with a virus and whether the virus led to his cardiac injuries. On these
questions, Johnson presented medical evidence from all of his treating physicians indicating
that they believed there was a viral infection that caused his cardiomyopathy and other heart
conditions. Dr. Osborne specifically concluded that within a reasonable degree of medical
certainty, “the viral illness [Johnson] contracted at work caused the cascade of medical
problems afterwards.”
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Conversely, Peco presented the opinion of Dr. Gelfand, who specifically stated as
follows:
My opinions are expressed within a reasonable medical certainty (more likely
than not).
There is no medical evidence of an infectious etiology of the cardiac illness
suffered by Mr. Johnson. No viral studies or myocardial biopsy was done by his
physicians.
I am not aware of any infection likely to be acquired from a contact
with/exposure to chickens that is expected to cause a cardiomyopathy.
The clinical course of a prolonged illness with nausea, vomiting, diarrhea and
fever over the period of June 2018 (as described by Mr. Johnson in his deposition), is
inconsistent with a viral illness.
In summary, I find no evidence that Mr. Johnson’s cardiac illness is related to
an occupational exposure at Peco Foods.
I base my opinion on my clinical experience and general knowledge and the
pathophysiology and natural history of infectious diseases, including viral myocarditis
and infections related to exposure to birds, including chickens.
The Commission chose to accept Dr. Gelfand’s opinion over Dr. Osborne’s opinion,
a matter that is within its province to resolve. See, e.g., Griffith v. Medcath, Inc., 2009 Ark.
App. 777, at 4 (“The Commission has the duty to weigh . . . competing opinions and translate
the medical evidence into findings of fact.”). We acknowledge the general rule that the
Commission is not required to believe the testimony of any witness and may accept and
translate into findings of fact only those portions of testimony it deems worthy of belief.
Holloway v. Ray White Lumber Co., 337 Ark. 524, 990 S.W.2d 526 (1999). The Commission,
however, has a duty to make a proper de novo review of the record. Id. at 529, 990 S.W.2d
10at 529. In its de novo review, if the Commission errs when it translates the evidence, and
that error is expressly relied upon in reaching its decision, the reviewing court “is left to
speculate concerning what evidence the Commission intended to rely on when making its
decision.” Id. at 529, 990 S.W.2d at 529; see also Tucker v. Roberts-McNutt, Inc., 342 Ark. 511,
29 S.W.3d 706 (2000); Meister v. Safety Kleen, 339 Ark. 91, 3 S.W.3d 320 (1999). In such
circumstances, the Commission’s erroneous factual findings require reversal. See Tucker,
supra.We conclude that the Commission erred in its translation of Dr. Gelfand’s opinion.
In finding that Johnson failed to prove he sustained a compensable injury, the Commission
wrote as follows:
[Dr. Osborne’s opinion is] not conclusive because as Dr. Gelfand––an expert on this
topic––pointed out, neither Dr. Osborne nor any other of [Johnson’s] treating
physicians performed any viral studies or myocardial biopsies necessary to reach such
a conclusion. In fact, according to Dr. Gelfand, he is not aware of any viral infection
that is likely to be acquired from exposure to chickens that would cause [Johnson’s]
cardiomyopathy. In other words, not only did [Johnson] fail to prove causation, but
according to Dr. [Gelfand] it is not even possible. The Full Commission credits the
expert of Dr. Gelfand that [Johnson’s] cardiomyopathy could not have been caused
by a viral infection likely to be acquired from exposure to chickens.
(Emphasis added.)
Here, the Commission made a factual finding that it was impossible for Johnson’s
cardiac illness to have been caused by a poultry-related virus based on the opinion of Dr.
Gelfand. Dr. Gelfand did not, however, offer such opinion. Instead, he said he was unaware
of such a virus and that Johnson’s long-duration symptoms were not consistent with a virus.
Thus, the Commission misconstrued what he actually said, and its conclusion is based on a
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misstatement. Because the Commission erroneously translated the medical evidence
concerning the cause of Johnson’s illness, we must reverse and remand for the Commission
to reexamine the evidence.
Reversed and remanded.
VIRDEN and MURPHY, JJ., agree.
Laura Beth York, for appellant.
Gill Ragon Owen, P.A., by: Jason A. Lee, for separate appellee Peco Foods, Inc.
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