| FINAL AWARD DENYING COMPENSATION (Affirming Award and Decision of Administrative Law Judge by Separate Opinion) |
| Employee: | Stephen Smith, deceased |
| Substituted Claimant: | Dorothy Smith |
| Employer: | Capital Region Medical Center |
| Insurer: | Self-Insured |
| This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have read the briefs, heard the parties' arguments, reviewed the evidence, and considered the whole record. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this separate opinion. |
| Introduction |
| The parties stipulated the following issues for determination by the administrative law judge:(1) whether employee sustained an accident or occupational disease arising out of and in the course of his employment with employer on or about April 20, 2005; (2) whether the accident or occupational disease was a substantial factor in the cause of employee’s death; (3) whether the claim for compensation is barred by § 287.430; (4) whether the claim for compensation is barred by § 287.420; (5) employer’s liability for employee’s past medical bills; (6) employee’s entitlement to temporary total disability benefits; (7) dependency under § 287.240; (8) employer’s liability for burial expenses; and (9) employer’s liability for death benefits.The administrative law judge denied the claim for compensation on a finding that employee did not sustain an accident or occupational disease arising out of and in the course of his employment with employer.Claimant filed a timely Application for Review arguing the administrative law judge erred in failing to apply the law referable to occupational diseases as set forth in the case of Vickers v. Mo. Dep’t of Pub. Safety, 283 S.W.3d 287 (Mo. App. 2009).Employer also filed a timely Application for Review arguing the administrative law judge erred: (1) in analyzing this case as an occupational disease instead of an accident; (2) in analyzing this case under the pre-2005 version of the Missouri Workers’ Compensation Law; and (3) in failing to issue findings of fact and conclusions of law as to the issues of statute of limitations and notice.For the reasons set forth herein, we deny the claim for compensation. |
| Findings of Fact |
| From 1969 to 2006, employee worked in employer’s hospital as a lab technician and phlebotomist. Employee’s work involved handling blood and other bodily fluids and |
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performing various medical tests and procedures. Employee worked for employer for a number of years before the implementation of safety measures which are commonplace today. For example, lab technicians worked without gloves or safety goggles and pipetted blood samples using their mouths. The latter process involved the lab technician placing a graduated glass pipe into their mouth and sucking a blood sample into the lower portion of the pipe.
Some of employee's coworkers experienced "needle sticks" (the act of accidentally stabbing oneself with a needle contaminated with blood or body products while attempting to replace the cap on a syringe). Claimant, who also worked for employer as a nurse, once got blood in her mouth while pipetting blood. It was not mandatory to report needle sticks to the employer until sometime in the 1980s or 1990s, when new scientific awareness as to the dangers of blood-borne pathogens prompted changes in workplace safety protocols in the lab where employee worked. None of the witnesses who testified were able to pinpoint exactly when these changes occurred, but they included the requirement that lab technicians wear gloves, the use of a rubber pump to pipette blood, and a new approach to handling and disposing of syringes that obviated the need for a technician to attempt to replace the cap on a used syringe.
In 1970, employee received a 6-unit blood transfusion following a hunting accident in which he was shot in the leg.
Employee sought medical treatment in December 1991 with complaints of severe epigastric pain. Blood tests revealed elevated liver enzymes and marked diffuse hepatocellular dysfunction. At least one treating doctor diagnosed hepatitis during the course of employee's hospitalization in 1991; the infection was later confirmed as hepatitis type C (hereinafter "HCV"). On April 20, 2005, claimant brought employee to the emergency room after he suffered a cognitive breakdown caused by hepatic encephalopathy. Employee continued to try to work full-time for employer after this event. Ultimately, though, due to health problems associated with liver failure, employee was unable to work after March 2006. Employee died on February 27, 2007, of sepsis, HCV, and acute tubular necrosis.
There is no evidence that any patient with HCV received treatment with employer or provided a blood or body tissue sample while employee worked there.
**Expert medical testimony**
The parties have provided competing expert medical evidence on the issue of causation of employee's HCV. Employee presents the testimony of Dr. Allen Parmet, who believes employee's work for employer was the likely cause of his contracting HCV. Dr. Parmet pointed out that employee worked for employer for many years handling blood and body products before the health care industry began to pay attention to the safety risks posed by blood-borne pathogens in the mid-1980s. Dr. Parmet identified the risk of blood splashing into employee's eyes, nose, and mouth and opined that needle sticks are a very significant risk factor for all phlebotomists and laboratory personnel. Dr. Parmet testified that employee reported multiple needle sticks to him.
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Dr. Parmet acknowledged that employee's receiving a blood transfusion in 1970 was a major risk factor, but ultimately opined that employee's work for employer and his daily exposure to blood and body products for many years was the largest risk factor and the most probable source causing employee to contract HCV, either through a needle stick or otherwise handling blood or body products.
Employer presents the testimony of Dr. Bruce Bacon, who believes the likely scenario is that employee contracted HCV when he got the 1970 blood transfusion and developed chronic liver disease by the time he was hospitalized in 1991. Dr. Bacon opined that it usually takes 20 or even 30 years after the initial infection with HCV to develop liver failure, and thus, the idea that employee contracted HCV from the 1970 blood transfusion fits well with the established timeline of employee's experiencing symptoms of chronic liver problems in 1991 and cirrhosis by 2004.
Dr. Bacon did not rule out employee's work as a risk factor, but opined that it is hard to implicate employee's work as a possible cause of his infection with HCV in the absence of documentation that he experienced any needle sticks.
**Conclusions of Law**
**Date of injury and 2005 amendments**
The appropriate date of injury is a threshold consideration in this matter, as it controls whether we apply the 2005 amendments to the Missouri Workers' Compensation Law to the facts of this case. See *Tillman v. Cam's Trucking, Inc.*, 20 S.W.3d 579, 585-86 (Mo. App. 2000). Employer argues that the 2005 amendments are applicable to this claim because employee was able to work up until March 2006. Claimant, on the other hand, argues the appropriate date of injury is April 20, 2005, the date she had to rush employee to the emergency room when he suffered a cognitive breakdown caused by hepatic encephalopathy.
A review of the relevant case law reveals that the courts have consistently linked the "date of injury" in occupational disease cases to the date the disease first becomes "compensable," which typically has been interpreted to mean the date an employee first experiences some disability or loss of earning capacity from the disease. See *Garrone v. Treasurer of State*, 157 S.W.3d 237, 242 (Mo. App. 2004) (holding that an employee's carpal tunnel syndrome did not become a "compensable injury" until the date he missed work for surgery, as he worked without restriction up until that date), and *Coloney v. Accurate Superior Scale Co.*, 952 S.W.2d 755, 759 (Mo. App. 1997) (noting that "Missouri courts have interpreted section 287.063 to provide that an employee with an occupational disease is 'injured' ... when the disease causes a 'compensable injury'").
Employer's argument asks us to focus on the last date employee worked for employer before health problems forced him to leave his position. But we are concerned here with determining the date employee first experienced some disability referable to the claimed injury, not the date that employee became unable to work at all. The claimed injury is liver failure resulting from employee's infection with HCV. The treatment note from
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employee's visit to the emergency room on April 20, 2005, does reveal considerable cognitive disability (or encephalopathy) referable to liver failure, and also reveals that treating physicians hospitalized employee in the intensive care unit in order to provide further treatments and perform diagnostic tests. Ultimately, we are more persuaded by the argument advanced by claimant that employee experienced some disability related to the claimed injury when he suffered a cognitive breakdown on April 20, 2005, and was subsequently hospitalized.
Accordingly, we find the appropriate date of injury to be April 20, 2005. As a result, we will apply the Missouri Workers' Compensation Law as it existed on April 20, 2005.
Occupational disease
Claimant argues that employee's contracting HCV and suffering subsequent liver failure constituted an injury by occupational disease caused by his work for employer. Section 287.067.2 RSMo sets forth the standard for a compensable occupational disease and provides, as follows:
An occupational disease is compensable if it is clearly work related and meets the requirements of an injury which is compensable as provided in subsections 2 and 3 of section 287.020. An occupational disease is not compensable merely because work was a triggering or precipitating factor.
The foregoing refers us to the "requirements of an injury which is compensable" under subsections 2 and 3 of § 287.020, which provide, as follows:
- The word "accident" as used in this chapter shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen identifiable event or series of events happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury. An injury is compensable if it is clearly work related. An injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability. An injury is not compensable merely because work was a triggering or precipitating factor.
- (1) In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. The injury must be incidental to and not independent of the relation of employer and employee. Ordinary, gradual deterioration or progressive degeneration of the body caused by aging shall not be compensable, except where the deterioration or degeneration follows as an incident of employment.
(2) An injury shall be deemed to arise out of and in the course of the employment only if:
(a) It is reasonably apparent, upon consideration of all the circumstances,
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that the employment is a substantial factor in causing the injury; and
(b) It can be seen to have followed as a natural incident of the work; and
(c) It can be fairly traced to the employm