Stephen Smith v. Capital Region Medical Center

containers of blood or urine, but there was no requirement that employees do so, and employees with open cuts or wounds were not prohibited from performing such tasks.

Claimant presented the testimony of Susan Hill, a medical technologist who has worked for employer since 1973. Ms. Hill credibly testified (and we so find) that she personally suffered needle sticks and got blood in her mouth while using a pipette, and that these were risks faced by all lab employees working for employer before the advent of precautionary measures. Ms. Hill was employee's supervisor in the 1990s. She could not remember employee reporting a needle stick to her when she was his supervisor, but did observe employee with blood splatter on his clothing and lab coat.

Claimant also presented the testimony of Dorsey Shackleford, a part-time medical technologist who worked as employee's supervisor in the 1970s. Mr. Shackleford credibly testified (and we so find) that he has personally suffered contamination of patients' blood onto and into his person, and that this is a risk that is incidental to working as a lab employee. Mr. Shackleford could not remember a specific time that employee reported a needle stick or contact with body fluids, but he also testified that it would have been unusual for employees to report needle sticks before the advent of precautionary measures in connection with the handling of blood and body products. Mr. Shackleford believes it was the late 1970s or early 1980s before these new safety devices and procedures began to be implemented.

There is no evidence on this record that would suggest employee was ever a user of illicit intravenous drugs, or that employee ever got a tattoo, or that employee was a diabetic who self-administered insulin.

In 1970, employee accidentally shot himself in the leg while hunting. Employee underwent surgery and received a 6-unit blood transfusion in connection with his injuries.

On December 30, 1991, employee was admitted to the Still Regional Medical Center with complaints of severe epigastric pain. Treating doctors noted elevated liver function studies and diagnosed employee with hepatitis, later classified as the hepatitis C virus (HCV). Upon employee's discharge from the hospital on January 3, 1992, Dr. Loretta Feeler noted that no definitive etiology for the hepatitis had been made.

The medical records suggest that antiviral therapies with Ribavirin and Interferon were unsuccessful in treating employee's HCV, owing to problems with marrow suppression, leukopenia, and anemia. The records also suggest that between 1992 and 2004, employee was generally asymptomatic with regard to HCV, although he underwent regular diagnostic testing to monitor progression of the disease, and in February 1999 experienced an episode of abdominal pain that Dr. Charles Ludy suspected was a possible early flare-up of hepatitis.

In June 2004, employee underwent a liver biopsy that revealed acute inflammation, bridging fibrosis, and cirrhosis. In July 2004, diagnostic imaging studies of employee's

chest and abdomen revealed the presence of ascites. On December 31, 2004, employee sought treatment for fever, malaise, and nausea. Dr. Rodney Adkison indicated this was employee's third episode over the last year of fever without other significant symptoms, and noted the possibility that employee's fever was linked to spontaneous bacteremia referable to liver disease.

On April 20, 2005, claimant took employee to the emergency room after she noticed employee suffering from drastic changes in his mental status. Treating physicians diagnosed acute hepatic encephalopathy referable to HCV, admitted employee to the intensive care unit, and ordered diagnostic testing. The contemporaneous medical treatment records do not reveal how many days employee was hospitalized.

It appears that at some point after employee's April 2005 hospitalization, he underwent another attempt at antiviral therapy with Ribavirin, but Dr. McKnelly's notes suggest these measures were once again abandoned. Dr. McKnelly's notes also reveal that employee continued to suffer from a number of issues referable to HCV for which he sought follow-up treatment, and that employee's previously excellent work for employer began to suffer owing to cognitive difficulties and lethargy.

On December 5, 2005, Dr. Arthur Dick evaluated employee. In his report of that date, Dr. Dick indicated that employee's work was a potential source of his infection with HCV. From our review of the medical treatment records, this appears to be the first time that a diagnostician articulated the possibility that employee's work for employer may have caused his HCV. We note that claimant testified that Dr. McKnelly informed employee that work was a possible source of employee's infection before Dr. Dick did so, but after a careful review of Dr. McKnelly's records, we can find no indication that Dr. McKnelly formed such an impression or conveyed this possibility to employee. We note also that claimant admitted she could not remember a number of key dates; it appears to us that claimant's testimony is not particularly reliable as to issues of chronology.

Accordingly, we find less persuasive claimant's testimony that Dr. McKnelly told her and employee that work was a possible source of employee's infection before Dr. Dick discussed this with them. Instead, we find that employee was first alerted to the possibility that he may have contracted HCV through work on December 5, 2005, when Dr. Dick evaluated him and formed that impression. Employee filed a claim for compensation against employer on April 28, 2006, alleging an injury occurring on or about April 20, 2005, affecting the body as a whole. On June 8, 2006, employee filed an amended claim for compensation, which added the more specific allegation of injury to the hepatic system (liver) and body as a whole.

Employee continued to suffer a gradual worsening of symptoms related to HCV. Employee was on the liver transplant list, but did not receive a liver transplant. On February 27, 2007, employee died as a result of liver failure.

Claimant identified a bill from Freeman Mortuary and testified that she paid $2,897.58 in satisfaction of those charges. On oral motion at the hearing before the administrative

Improve: Stephen Smith, deceased

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law judge, claimant requested that she be substituted as the claimant herein. Employer's counsel stated that employer had no objection to the motion, and the administrative law judge granted the motion and ordered a substitution of parties.

**Expert medical testimony**

Claimant presents expert medical opinion evidence from Dr. Allen Parmet, who testified as follows. Transfusions of blood or body products are the primary cause of infectious hepatitis in the United States. Hepatitis can also be transmitted sexually, but the transmission rate for hepatitis type C is very low. There is an incubation period between an initial exposure and development of an acute hepatitis syndrome; this averages about six weeks after the infection. The acute syndrome manifests in a generally flu-like illness with aches, pains, malaise, fevers, and very rarely jaundice. The acute syndrome is followed by a latency period where the virus is slowly growing and damaging the liver. The minimum time from infection to onset of liver disease is considered to be 7 years, while the average time is 15 years.

Dr. Parmet opined that employee's transfusion with 6 units of blood in 1970 would be considered a major risk factor, and estimated the statistical probability that employee contracted HCV from this source at around 6%. However, Dr. Parmet does not believe that the transfusion caused employee to contract HCV, because employee did not develop cirrhosis of the liver until after 2000. Dr. Parmet explained that very few people with HCV will experience a 30-year latency period for the development of cirrhosis. Dr. Parmet also believes, based on his clinical experience with many patients suffering from acute hepatitis, that the medical records show that employee was suffering from an episode of acute hepatitis in 1991.

Dr. Parmet identified employee's work for employer from 1969 through 2006 performing tasks that daily exposed him to the risk of contamination from the blood and body products of hospital patients as the largest risk factor and the most probable source of his infection with HCV. Dr. Parmet noted that employee performed his work as a lab technician for many years without any of the mandatory tools and precautionary methods now in place after the advent of OSHA standards in the mid-1990s. Dr. Parmet opined that the act of handling blood and body fluids and the risk of needle sticks are considered typical occupational hazards for such employees, and that employee's work as a laboratory technologist placed him at a significantly greater risk for HCV infection. Dr. Parmet opined that most people in employee's field suffer needle sticks quite