Mendoza-Zapata v. Eagle Ridge Dairy, LLC, 022020 IDWC, IC 2015-002206

• Case Date: February 20, 2020
• Court: Idaho

JOSE MENDOZA-ZAPATA, Claimant, v. EAGLE RIDGE DAIRY, LLC, Employer, and STATE INSURANCE FUND, Surety, Defendants. No. IC 2015-002206 Idaho Workers Compensation Before the Industrial Commission of the State of Idaho February 20, 2020          FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER           Thomas P. Baskin, Chairman.          INTRODUCTION          Pursuant to Idaho Code § 72-506, the Idaho Industrial Commission assigned the above-entitled matter to Referee Alan Taylor, who conducted a hearing in Boise on May 23, 2018. Claimant, Jose Mendoza-Zapata, was present in person and represented by Justin P. Aylsworth, of Boise. Defendant Employer, Eagle Ridge Dairy, LLC (Eagle Ridge), and Defendant Surety, State Insurance Fund, were represented by Neil D. McFeeley, of Boise. The parties presented oral and documentary evidence. Post-hearing depositions were taken and briefs were later submitted. The matter came under advisement on May 1, 2019. The Commission has reviewed Referee Taylor’s proposed findings of fact, conclusions of law, and recommendation, but declines to adopt the same. The Referee determined that Claimant’s chemical exposure caused his GBS or GBS-like syndrome. As explained infra, the Commission disagrees that the record provides sufficient proof of this proposition, but supports the Referee’s ultimate decision for other reasons.          ISSUES          The issues to be decided are:

1. Whether Claimant suffered an injury from an accident arising out of and in the course of employment.

2. Whether the condition for which Claimant seeks benefits was caused by the industrial accident.

3. Whether Claimant’s condition is due in whole or in part to a pre-existing and/or subsequent injury/condition.

4. Whether, and to what extent, Claimant is entitled to medical care.

         All other issues are reserved.          CONTENTIONS OF THE PARTIES          Claimant asserts he was exposed to hazardous chemicals while working at Employer’s dairy resulting in respiratory injuries and/or causing Guillain-Barre syndrome requiring extensive medical treatment including prolonged hospitalization. He seeks medical benefits for treatment thereof. Defendants deny Claimant’s exposure to chemicals at work caused him injury or Guillain-Barre syndrome. Defendants assert his Guillain-Barre syndrome is due to other factors for which they are not liable.          EVIDENCE CONSIDERED          The record in this matter consists of the following:

1. The Industrial Commission legal file;

2. The pre-hearing deposition testimony of Claimant and the pre-hearing deposition of Christopher Gale Rood;

3. Claimant’s Exhibits 1 through 17 and Defendants’ Exhibits A through I, admitted at the hearing;

4. Claimant’s testimony taken at hearing;

5. The revised post-hearing deposition testimony of Robert H. Friedman, M.D., taken by Claimant on July 24, 2018;

6. The post-hearing deposition testimony of Robin Albert Dodson, B.S., B.S. Pharmacy, PH. D., taken by Claimant on July 31, 2018;

7. The post-hearing deposition testimony of Emil J. Bardana, M.D., taken by Defendants on October 24, 2018; and

8. The post-hearing deposition testimony of Gary Dawson, Ph.D., taken by Defendants on November 1, 2018.

         All pending objections are overruled and motions to strike are denied, except for Defendant’s objection to Dr. Dodson’s deposition changes, treated infra. (See Defendant’s reply brief at 17).          FINDINGS OF FACT          1. Claimant was born in 1977. He was 40 years old and lived in Nampa at the time of the hearing. He is a Mexican citizen and undocumented. Eagle Ridge is a dairy business with operations in Kuna.          2. Background. Claimant was born in Mexico and raised in Guadalupe. He does not read English and speaks very little English. He testified at hearing only through an interpreter.          3. Claimant worked on his father’s fields in Guadalupe cultivating corn and beans. He was healthy and never required any hospitalization prior to 2015.          4. In 2014, Claimant lived and worked in Guadalupe. He does not recall being near or being bitten by any mosquitoes in 2014. He does not recall any friend or family member being bitten by any mosquitoes in 2014.          5. In December 2014, Claimant came to Idaho. He had never had a flu shot. He had no breathing problems, lung issues, or chemical sensitivities prior to January 5, 2015.          6. In late December 2014 or early January 2015, Claimant worked for three days at a dairy in Nampa. His work required no use of chemicals and he had no breathing problems or muscle weakness.          7. On January 3, 2015, Claimant began working at Eagle Ridge Dairy. His duties included milking cows and cleaning milking lines and other equipment.          8. Industrial incident. On January 5, 2015, Claimant’s coworkers first tasked him with cleaning milking lines at work. To do so, he used a pitcher to repeatedly transfer soaps and acids from large containers into a vat of boiling water and then into the milking lines to flush and clean them. Thereafter, approximately every other day Claimant was assigned to clean the milking lines. The chemicals he used included T-Chlor 12.5% (containing Sodium Hydrochlorite, Clorox, and Sodium Hydroxide), U-2000 (a mixture of Phosphoric Acid, Nitric Acid, and Sulfuric Acid), Excel Final Oxy (a blend of Sulfuric Acid, Hydrogen Peroxide, and Methane Sulfonic Acid), and CC-5,000 (a mixture containing Sodium Hydroxide, Sodium Carbonate and Sodium Dichloroisocyanurate). The chemical mixtures splashed on his arms and he was extensively exposed to vapors from the hot vat into which he poured the cleaning chemicals. Claimant was not instructed to use protective gear, not provided protective gear, and used no breathing, facial, or other protective gear while cleaning the milking lines, with the exception of gloves. Claimant noticed that on the days he cleaned the milking lines, his face, hands and arms itched and he felt ill. On days he did not clean the milking lines, he had no such symptoms.          9. On January 15, 2015, Claimant was again tasked with cleaning the milking lines. Over the course of his work day, he lost strength in his hands and arms such that his coworkers had to complete his assigned duties and after his work shift a coworker took him to the hospital. Claimant described his symptoms at that time as: “pressure in my chest and that I was sort of choking.” When asked by Defendants’ counsel if Claimant felt like he had a cold or the flu, he responded: “No. …. I had a lot of loss of strength in my arms …. I was losing my speech. My nose was itching, I had a headache. My eyes were burning. And that’s why I went to the hospital.” Claimant’s Depo., 32:18 33:2.          10. Claimant presented at St. Alphonsus Medical Center in Nampa at 10:55 p.m. On January 15, 2015, and was attended by LeAnna Rankin, R.N., who recorded: “Woke up this morning with sore throat, now c/o neck and head pain as well as shakiness in his hands.” Exhibit 5, p. 40. Claimant’s rapid strep test was negative and his temperature was 98.2. He was examined by Mark Burriesci, M.D., who recorded:

The patient presents with sore throat and hurts to swallow, worse throughout today. Ears achy bilate [sic] resolved. No runny nose. The onset was gradual and today since this am. Course/duration of symptoms is constant. Location: Bilateral throat. The degree at present is moderate. Therapy today: Associated symptoms: denies fever. Additional history: nothing improves, worse with swallowing, eating/drinking. … Review of Symptoms … No fever, no chills … nausea … Muscle pain, upper arms, achy. Neurologic symptoms: Headache, dizziness ….

Throat: Bilateral, moderate, pharynx, erythema, tiny amount of exudate on right tonsil. …. Lungs are clear to auscultation.

Differential Diagnosis: Otitis media, upper respiratory infection, pharyngitis, viral illness.

….

Diagnosis: Pharyngitis … Myalgias viral illness.

Exhibit 5, pp. 42-44. A slightly different note from the same visit provided: “denies fever. …. Respiratory symptoms: Shortness of breath, no cough.” Exhibit 5, p. 45. Claimant was given Decadron and a prescription and released at approximately 12:19 a.m. on January 16, 2015.          11. It is unclear to what extent interpreter services were utilized. Medical records indicate patient history was obtained via an interpreter; however, Claimant testified no interpreter was utilized. The patient history contains no...