Edmond McNack v. Jackson County Sheriff's Department

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated September 13, 2005, as supplemented herein, and awards no compensation in the above-captioned case.

Dr. Wasfi explained in convincing biological detail why she was unable to medically extend the studies showing an association between HAART medications and the development of sarcoidosis in HIV-positive patients to employee’s case.

On the other hand, Dr. Friedlander extended the association revealed by those studies to employee’s case without offering a medical explanation for the extension. While Dr. Friedlander testified within a reasonable degree of medical certainty that it is more likely than not that the HAART medications caused a flare up of employee’s sarcoidosis, his supporting testimony undercuts the certainty of his opinion. Dr. Friedlander admitted that the etiology of sarcoidosis is unknown; the manner of contraction of sarcoidosis is unknown; the causes of flare-ups of sarcoidosis are unknown; the HAART-sarcoidosis causal link is a gray area; and there are no known cases of HAART-induced sarcoidosis in an HIV-negative individual. When viewed in light of his testimony as a whole, Dr. Friedlander’s opinion that the HAART medications are the probable cause of the development of employee’s sarcoidosis symptoms is based upon speculation, guesswork, and surmise. Dr. Friedlander’s opinion is simply not persuasive.

A review Dr. Wasfi’s CV in conjunction with her description of her medical experience and current practice treating sarcoidosis patients convinces us Dr. Wasfi is extremely credible in the area of sarcoidosis. We believe the most credible and convincing testimony is the opinion of Dr. Wasfi that there is no biologically plausible explanation for the administration of HAART medications leading to sarcoidosis in an HIV-negative person.

By this supplemental opinion, we agree with the conclusion of the administrative law judge that employee has failed to meet his burden of proving medical causation in this matter.

The award and decision of Administrative Law Judge Paula A. McKeon, issued September 13, 2005, is attached and incorporated by this reference, to the extent it is not inconsistent with this award and decision.

Given at Jefferson City, State of Missouri, this 24th day of April 2006.

DISSENTING OPINION FILED John J. Hickey, Member

Attest:

Secretary

Employee: Edmond McNack

Injury No. 98-034419

Employer: Jackson County Sheriff's Department

Insurer: Self-Insured

Additional Party: N/A

Hearing Date: August 17, 2005

Checked by: PAM/abj

1. Are any benefits awarded herein? No.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the law? Yes.
4. Date of accident or onset of occupational disease: March 25, 1998.
5. State location where accident occurred or occupational disease was contracted: Kansas City, Jackson County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? Yes.
9. Was claim for compensation filed within time required by law? Yes.
10. Was employer insured by above insurer? Yes.

1. Describe work employee was doing and how accident occurred or occupational disease contracted: McNack was bitten by a female prisoner on the finger in the course and scope of his employment with the Jackson County Sheriff's Department.
2. Did accident or occupational disease cause death? No. Date of death? N/A
3. Part(s) of body injured by accident or occupational disease: Finger.
4. Nature and extent of any permanent disability: None.
5. Compensation paid to date for temporary disability: $\ 3,486.43
6. Value necessary medical aid paid to date by employer/insurer? $\ 53,444.00
7. Value necessary medical aid not furnished by employer/insurer? \151,929.12
8. Employee's average weekly wages: \ 463.60
9. Weekly compensation rate: $\$ 309.08 / \ 278.42 per week
10. Method wages computation: By agreement.

1. Amount of compensation payable: N/A
2. Second Injury Fund liability: No.
3. Future requirements awarded: N/A

Employee: Edmond McNack

Injury No. 98-034419

Employer: Jackson County Sheriff's Department

Insurer: Self-Insured

Additional Party: N/A

Hearing Date: August 17, 2005

Checked by: PAM/abj

On August 17, 2005, the parties appeared for hearing. The Division had jurisdiction to hear this case pursuant to $\S 287.110$. The employee, Edmond McNack, appeared in person and with counsel William Manson.

The employer, Jackson County Sheriff's Department, insured by its authority to self-insure, appeared through its counsel, Randell Collins.

At the hearing, the parties stipulated to the following:

1. That both the employer and employee were operating under and subject to the provisions of the Missouri workers' compensation law and all liability of the employer was fully insured by its authority to self-insure;
2. that McNack was its employee operating under and subject to the provisions of the Missouri workers' compensation law;
3. that McNack provided proper notice of the injury and a timely claim for compensation was filed;
4. that McNack sustained an accident arising out of and in the course of his employment on March 25, 1998;
5. that McNack's average weekly wage was $\ 463.60, resulting in a compensation rate of $\ 309.08 temporary total disability and $\ 278.42 per week permanent partial disability; and
6. that compensation was paid to the employee in the total amount of $\ 3,486.43 and medical expenses were provided by the employer in the total amount of $\ 53,444.00.

The parties requested the Division to determine the following:

1. Whether the conditions Edmond McNack complains of are medically/causally related to his accident of March 25, 1998;
2. whether Edmond McNack is permanently totally disabled as a result of his March 25, 1998, injury;
3. whether Edmond McNack is entitled to past medical expenses totaling \$151,929.12; and
4. whether Edmond McNack is entitled to future medical expenses to cure and relieve the effects of his March 25, 1998, injury.

Edmond McNack is a 40-year-old former Jackson County sheriff's deputy. On March 25, 1998, McNack was transferring a prisoner to a hospital when she bit him on the finger. McNack sought emergency treatment at the hospital. The emergency room doctor prescribed a combination AZT/CT3 prophylaxis, hereinafter "HAART" (highly active anti-retroviral therapy), in case the prisoner was HIV positive. Both the prisoner and McNack were later tested HIV negative.

During the course of the 10-week HAART administration, McNack developed a number of symptoms. McNack began to feel nauseated and tired. McNack had a fever, night sweats, and blurry vision within one to two weeks of taking the medications. McNack began to lose weight. McNack ultimately terminated the course of HAART prophylaxis two weeks early.

McNack continued to suffer many symptoms. McNack required numerous hospitalizations and was seen by

many doctors during this time. By September 1998 McNack was diagnosed with sarcoidosis. McNack's sarcoid condition was treated with high-dose prednisone. McNack developed avascular necrosis of both hips as a side effect of the prednisone. McNack received bilateral hip replacements.

McNack has had his gallbladder removed as well. McNack has many symptoms and complaints related to the sarcoidosis and accompanying treatment. McNack complains of fatigue, joint pain, hip pain, tremors, wrist pain, loss of balance, and numbness. McNack has not worked since September 2000 when his employment with the county was terminated.

McNack claims he developed or aggravated an unknown preexisting sarcoid condition as a result of taking the HAART prophylaxis.

There is no dispute that McNack sustained a human bite and was administered HAART prophylaxis. There is no dispute that McNack suffers from sarcoidosis. The question is whether the administration of the HAART prophylaxis either caused or aggravated McNack's sarcoidosis.

It is the burden of the claimant to establish the causal connection between the accident and resulting injury. Landers v. Chrysler Corp., 963 S.W.2d 275, 279 (Mo.App. E.D. 1997). In this case the issue is one of medical causation, which must be established by expert opinion. The medical causation must be demonstrated by "scientific or medical evidence showing the cause and effect relationship between the complained of condition and the asserted cause." Landers at 279; McGrath v. Satellite Sprinkler Systems, 877 S.W.2d 704, 708 (Mo.App. 1994). Additionally, medical expert opinion must be based on reasonable medical certainty that a condition was caused by a particular event or circumstance. Carter v. Jones Truck Lines, Inc., 943 S.W.2d 821 (Mo.App. S.D. 1997).

Expert testimony expressed in terms of "might" or "could" without additional evidence of causation is insufficient to support a specific finding. Carter at 826; Wiedmaier v. Robert McNeil Corp., 718 S.W.2d 174 (Mo.App. W.D. 1986); Shackelford v. West Central Electric Cooperative, Inc., 674 S.W.2d 58, 62 (Mo.App. W.D. 1984).

The parties have each provided expert opinions as to the medical causation issue presented in this claim. Dr. Edward Friedlander is a medical instructor and board-certified pathologist. Friedlander has many years of experience in pathology and has testified as to causation issues in both criminal and civil matters. Dr. Yasmine Wasfi is an instructor with National Jewish Hospital in Denver, Colorado. Dr. Wasfi specializes in treatment and research of sarcoidosis. She has treated over 100 patients with sarcoidosis.

Both Dr. Friedlander, on behalf of McNack, and Dr. Wasfi, on behalf of the employer, agree that McNack has sarcoidosis but disagree as to whether the HAART regimen taken by McNack caused him to develop sarcoidosis or otherwise made preexisting dormant sarcoidosis symptomatic. Between March 25, 1998, and June 10, 1998, McNack had a drop in his albumin level from 4 to 3. Dr. Friedlander opines this is indicative of sarcoid symptomology. Dr. Wasfi disagrees. Dr. Wasfi testified that chest x-rays of June 10, 1998, revealed evidence of sarcoidosis. Both doctors agree that there is no evidence indicating McNack had sarcoidosis or its symptoms prior to March 25, 1998.

Dr. Friedlander testified that although not a certainty, he thought the taking of the HAART probably caused McNack to develop sarcoidosis or otherwise made a preexisting dormant sarcoidosis symptomatic for the following reasons: (1) the temporal relationship between the taking of the HAART the development of the sarcoidosis indicated on the chest x-ray of June 10, 1998, and the drop in McNack's albumin level was too strong to be coincidental; (2) HIV positive patients have developed sarcoidosi