CHERYL A GABRIEL, Applicant
NEW LONDON FAMILY MEDICAL CTR, Employer
EMPLOYERS INSURANCE CO OF WAUSAU, Insurer
The applicant filed an application for hearing in March 2005, which was served on April 1, 2005, in which she claimed disability from Hepatitis C as a result of exposure in the course of her employment. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on September 22, 2005.
Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts and an average weekly wage of $662.57 on the alleged date of injury, December 30, 2003. At issue was whether the applicant sustained a compensable injury on December 30, 2003, the nature and extent of disability from any such injury, and the insurer's liability for medical expenses. In addition, the respondent raised defenses based on the date of injury, including a notice of injury/notice of claim defense under Wis. Stat. § 102.13.
On November 25, 2005, the ALJ issued a decision dismissing the application. The applicant filed a timely petition for review.
The commission has considered the petition and the positions of the parties, conferred with the presiding ALJ concerning witness credibility and demeanor, and reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:
1. Employment and treatment.
The applicant was born in 1953. She has Hepatitis C, a disease she claims she contracted from exposure to blood in her job for the employer as an LPN and RN at the employer's hospital facility from 1990 to 2003. She earned her LPN in 1982, and her RN while working for the employer in 1999.
During her LPN training in the 1980s, the applicant worked as a student nurse at a couple of heath care facilities, where she was exposed to patient blood on occasion. Her first job in the health care field was with the employer in 1990.
From 1990 to 1993, the applicant did regular patient care, bathing patients, taking them to the bathroom, passing medicine, giving injections, and doing bandage and wound treatment. While changing a patient's bed during this period, the applicant testified, she suffered a needle stick. It punctured her skin but she did not bleed, so she did not report the incident.
In 1993, the applicant began working as an LPN on the employer's labor and delivery floor, as well as on its medical-surgical floor. She testified that when she helped doctors with deliveries, she was splashed with urine, amniotic fluid and blood. She helped with at least 300 deliveries.
The applicant testified she was constantly exposed to blood in the job, and that she never saw a delivery that did not involve blood. During a delivery, the applicant testified, she wore gloves, and perhaps shoe covers, but not a mask or goggles. She began wearing eyeglasses, for vision correction, in 1994.
The applicant described exposure to blood, or bodily fluids containing blood, during the birthing process, in cleaning up, and in cutting the umbilical cord, etc. She testified that in the course of her employment blood would soak through her gown onto her leg, and that she would get blood on her arms, hands (through the latex gloves), and face. She testified that during this period she might have open wounds from biting her nails and from shaving her legs before work.
In 1999, after she became an RN, the applicant's job duties changed. She was assigned work on the medical-surgical floor the first year, and then went to a position where she could gain experience in different units. This included, still, work in the labor and delivery unit.
As an RN, the applicant's exposure to blood changed somewhat. The applicant now could start IVs and blood transfusion. On the other hand, she was exposed to less blood in the delivery room because RNs did not do clean up work.
While working as an RN, the applicant testified, she had a second needle stick. She testified she had given a patient an injection, and was putting the used needle in the "sharps container" when the container door stuck. She gave the needle a little push, and the needle causing the obstruction came out and poked her in the hand. She bled from the needle stick.
According to the applicant, she reported the incident to the emergency room supervisor, and filled out an incident report. She admitted, however, that she had no independent recollection of filing the report. She washed the site with antibacterial soap, and put a band-aid on it. She testified that she did not give the incident another thought. The applicant's employment record does not contain a written report of this incident. The applicant testified she knew a report should have been filed.
In October 2003, the applicant began working as an RN on the labor and delivery floor exclusively. She quit her job due to hepatitis symptoms in December 2003.
The applicant testified she knew for certain that she treated two people who had Hepatitis C. One was a man in his fifties she treated earlier in her career, apparently in the early 1990s. The other was a mother in labor, who she treated as an RN, which would have been after 1999. The applicant added that she did not always know if a patient had Hepatitis C.
The applicant testified, too, that she has never been an intravenous drug user, that she has never had a transfusion, that she has been sexually monogamous with her current husband (who, like her children, has tested negative for Hepatitis C) for 21 years, that before that she was monogamous with her first husband (they were together from 1974 to 1983) whom to her belief was also monogamous, and that she has no tattoos. She does have multiple piercings in her ears -- two done when she was 14 by a friend's mother, and three she did personally -- all under sterile conditions. In short, the parties agree that the applicant has engaged in none of the behaviors identified with transmission of Hepatitis C, except for employment as a health care worker.
The employer's quality coordinator, Barbara Neumann, testified that the employer's policy since at least 1990 required reporting of all needle sticks, including those which do not draw blood. Ms. Neumann testified that workers were supposed to report whenever they handled blood or bodily fluids directly, as when a glove broke. She added that the applicant's employment records show she never reported any exposure to bloodborne pathogens, from a needle stick or otherwise.
2. Expert medical opinion.
Both sides submit expert medical opinion on the question of whether the applicant's infection with the Hepatitis C virus arose out of her employment with the employer.
The doctor who treats the applicant for her Hepatitis C condition is Rana P. Sokhi, M.D. In a practitioner's report dated June 20, 2004 (exhibit 4), Dr. Sokhi referred to an attached note for the event or exposure to which the applicant attributed her condition which states:
I discussed with the patient and her spouse probable modes of transmission of Hepatitis C. They are: intravenous drug usage, promiscuity, blood transfusion, recreational drug usage, tattoos, body piercing, health care worker exposure to bodily fluids. The patient has pierced ears which were done by patient over 30 years ago, has been monogamous with spouse for 20 years +, and is negative for all other modes of transmission except being a health care worker at New London Family Medical Center for 131/2 years. See attached job description [none is attached.] All of other family members tested negative for the Hepatitis C virus.
The doctor then marked affirmatively the "direct cause" and "occupational disease" causation questions on the form, but added in each case that the applicant "could have obtained Hep C from workplace."
On June 25, 2004, Dr. Sokhi wrote this addendum to the practitioner's report (also at exhibit 4):
It is my professional opinion that it is possible that this patient could have contracted Hepatitis C from her employment in the healthcare field. But based on the lack of medical evidence of any fluid or needlestick exposure reported, it is not probable.
Finally, the applicant's attorney evidently prepared a questionnaire for Dr. Sokhi which, after pointing out the applicant did not engage in the behaviors associated with Hepatitis C transmission (drug use, tattoos, sexual promiscuity, etc.), asked:
Mrs. Gabriel has worked as a licensed practical nurse from 1990 to 1993 on a medical/surgical floor and from 1993 through 1999, worked as a licensed practical nurse in a labor and delivery/medical/surgical unit and from June, 1993 through December, 2003, worked as a registered nurse in a medical/surgical unit and from June, 1999 through December, 2003, worked as a registered nurse in a medical/surgical, labor and delivery, and recovery room (PACU) and ICU, and therefore, was exposed to patient blood and fluids on a regular basis; and during her tenure with New London Family Medial Center as an LPN/RN, Ms. Gabriel recalls receiving two needle sticks; the first occurring sometime between 1991 and 1995 (although that stick did not cause any bleeding) and, the second stick occurring sometime between 1999 and December 2003 (that stick causing slight bleeding.)
Assuming the above information to be true and accurate is it your opinion that Ms. Gabriel's Hepatitis C condition likely arose out of her employment as a health care worker/nurse, for New London Family Medical Center.
The doctor responded affirmatively. Asked further if it was likely, very likely, or extremely/highly likely that work caused her condition, the doctor responded it was "likely." Exhibit A, February 24, 2005 questionnaire of Sokhi.
The respondent's expert is Brian D. Harrison, M.D. He summarized the issue before him as whether a female RN who worked 14 years at the employer's facility doing direct patient care but no documented instances of a needle stick could contract Hepatitis C by an occupational route of infection. The doctor noted as background that he drew from documents including a report from the U.S. Department of Health and Human Services, Centers for Disease Control, entitled "Recommendations for Prevention and Control of Hepatitis C Virus Infection and Hepatitis C-Related Chronic Disease," Morbidity and Mortality Weekly Report (MMWR, October 16, 1998) (hereafter "the CDC report")
Dr. Harrison began by noting that, for the applicant to have contracted Hepatitis C at work, the following must have occurred:
1. An unintentional and unreported needle stick injury must have occurred.
2. The needle must have been contaminated with blood from a carrier of Hepatitis C.
3. The exposure must then have transmitted the infection.
He added infection by this route was possible, as it is well known that health care workers can contract the Hepatitis C virus from blood or bodily fluid exposure from infected patients.
One obvious point here is that the doctor is essentially assuming that the only way the applicant can get Hepatitis C is a needle stick, and limits his inquiry to an unreported needle stick based on the facts he was given by the respondent. Dr. Harrison explains in a footnote that while other routes of exposure have been documented to cause infection in cases of known Hepatitis C exposure (e.g. blood splashes the mouth) "...these alternate routes do not add enough to the risk to show up in risk factor studies, and therefore do not apply in this case." The doctor added:
In other words, since we are dealing with theoretical risk of exposure, rather than known and documented exposure, only needle sticks appear to contribute substantially to this risk.
The doctor went on to note that according to the Center for Disease Control, one in ten health care workers gets an unintentional needle stick each year "and an equal number are unreported giving a 10% per year risk of such." Extrapolated over the applicant's 14-year career, the doctor estimated 2 unreported needle sticks. The doctor went on to observe that the national prevalence of Hepatitis C infection is 1.8 percent, but the highest estimate of Hepatitis C among the general hospitalized patient is 18 percent. Thus, the possibility of a stick with a needle used on an infected patient would be 3.6 to 36 percent.
Next, Dr. Harrison factored in the risk of infection from a single poke with an infected needle: he estimated only a 1.8 to 10 percent risk of contracting Hepatitis C if one is poked with an infected needle. Multiplying the percentage risks together, then, Dr. Harrison estimated the odds of a health care worker contracting Hepatitis C in 14 years of employment from an unreported, unintentional needle stick is an extremely low 0.065% (1 in 1,500) to a low 3.6 percent (1 in 30).
Of course, as Dr. Harrison recognized, this case does not simply involve the theoretical risk of a health care worker contracting Hepatitis C from an unreported needle stick. The applicant -- the health care worker at issue here -- does have Hepatitis C. As acknowledged by Dr. Harrison, she had to have contracted the virus somehow.
Again, the other known causes of Hepatitis C -- sexual promiscuity, intravenous drug use, tattoos, etc. -- have been ruled out. There remains, however, the "unknown cause," and this factors into Dr. Harrison's expert opinion. The doctor observes the CDC report indicates -- in pie graph form -- that the sources of Hepatitis C are:
Dr. Harrison concludes:
The case of this HCW [health care worker] either falls in the "Other" or the "Unknown" category above. It is not clear which. Simply being a HCW [health care worker] does not mean the source is known. It is possible then for a HCW to have an unknown non-occupational source, and this is even more common than occupational source. But this is not a clear fit in this case either. The CDC observes that "...most persons in this category (unknown) are associated with low socioeconomic level" which I do not believe applies here. Then again, the observation is "most," not all.
Because the risk of this type of transmission to HCW is low, and because "UNKNOWN" is a commonly occurring category, one should not assume that an HCV [Hepatitis C virus] infection in a HCW was contracted at work. Individual factors which would increase the likelihood that the infection came from work include exposure to known sources, high risk patient exposure such as dialysis or in highly endemic areas, and performance of exposure prone invasive procedures such as surgery. I understand none of these factors apply in this case.
In summary, it is certainly possible that the HCV infection in this HCW was contracted through an unreported needle stick from an unknown source who was in fact HCV positive. In my opinion though, the probability that this happened is less than 50%. I base this on the idea that the risks to the average HCW of this happening over 14 years in a setting like [the employer's health care facility] is very low and that the "unknown" is statistically a more common category of HCV source than is health care work.
3. Discussion
a. Legal issues (date of injury; notice).
As the ALJ observed, two legal issues must be addressed at the threshold of the applicant's claim, both arising from the fact that the applicant cannot not identify a particular day when a needle stick or blood splash resulted in the hepatitis infection: (1) whether the applicant filed an application within 2 years of the exposure under Wis. Stat. § 102.12; and (2) without a date of injury, the liable insurer, and compensation rates cannot be determined.
Wisconsin Stat. § 102.12 provides:
102.12 Notice of injury, exception, laches. No claim for compensation may be maintained unless, within 30 days after the occurrence of the injury or within 30 days after the employee knew or ought to have known the nature of his or her disability and its relation to the employment, actual notice was received by the employer or by an officer, manager or designated representative of an employer. If no representative has been designated by posters placed in one or more conspicuous places, then notice received by any superior is sufficient. Absence of notice does not bar recovery if it is found that the employer was not misled thereby. Regardless of whether notice was received, if no payment of compensation, other than medical treatment or burial expense, is made, and no application is filed with the department within 2 years from the date of the injury or death, or from the date the employee or his or her dependent knew or ought to have known the nature of the disability and its relation to the employment, the right to compensation therefor is barred, except that the right to compensation is not barred if the employer knew or should have known, within the 2-year period, that the employee had sustained the injury on which the claim is based. Issuance of notice of a hearing on the department's own motion has the same effect for the purposes of this section as the filing of an application. This section does not affect any claim barred under s. 102.17(4). {Emphasis supplied.]
Under section 102.12, Stats., the burden is on the respondent to show that it was misled by any lack of notice. Manitowoc County v. ILHR Dept., 88 Wis. 2d 430, 436, 276 N.W.2d 755 (1979); Milwaukee v. Industrial Comm., 21 Wis. 129, 136, 124 N.W.2d 112 (1963); Michigan Quartz Silica Co. v. Industrial Comm., 214 Wis. 289, 294, 252 N.W. 682 (1934). With regard to the two-year filing requirement, the Wisconsin Supreme Court stated in Trustees, Middle River Sanitorium v. Industrial Comm., 224 Wis. 536, 542, 272 N.W. 483, 485 (1937):
"What an employe may think as to the nature of his disability and its relation to his employment is not alone sufficient to start the running of the two-year statute of limitations. To so hold would be to adopt an unthinkably harsh rule. What an employe thinks must be based on something more than suspicion and conjecture in order to start the running of the statute of limitations. Such thought must be based upon knowledge of, or upon reliable information regarding the nature of his disability and its relation to his employment. It is, of course, not necessary that the employe know the precise name employed by the medical profession to describe his disability, but he must have knowledge or an appreciation of the nature of his disability and its relation to his employment."
Exhibit C indicates that the applicant was determined to test positive for the Hepatitis C antibody in late February or early March 2004. The applicant testified that she was diagnosed with Hepatitis C in approximately February 2004. Her hearing application recites that the applicant gave notice of injury to her employer on June 23, 2004. The application was served on the employer on April 1, 2005.
Even assuming the applicant knew or should have known of the relationship between Hepatitis C and her employment immediately upon learning her diagnosis in February 2004, the respondent has not shown it was prejudiced by the June 23, 2004 notification. Further, the hearing application was filed within two years of February 2004. Wisconsin Stat. § 102.12 does not require dismissal of the hearing application in this case.
Regarding the more general date of injury question, as the ALJ noted in his decision, while hepatitis is a disease, the injury in this case -- the actual contraction of the Hepatitis C virus -- was an accidental event. Must a worker prove a specific date of injury in a case like this -- must he or she show a specific needle stick on a specific date caused the infection? The commission addressed this issue fairly recently in another case involving Hepatitis C, Meinke v. Lakeland Medical Assoc., LTD, WC Claim No. 1996003508 (LIRC, November 12, 1998). In Meinke, the worker was a surgical nurse who had had between 10 and 100 needle sticks and between 10 and 200 blood splashes in her career. She had none of the more common other risk factors, though she had been to Mexico on a medical missionary trip a year earlier and, unlike here, her husband refused to take a blood test to eliminate himself as a source of the infection.
With respect to the contention that there was legitimate doubt about exactly when the accident occurred, the commission explained:
The commission finds that the applicant has met her burden of proof that she contracted Hepatitis C as a result of her occupational exposure with the employer. The Wisconsin Supreme court noted in Pfister [& Vogel L. Co. v. Industrial Commission], 194 Wis. 131, 133-134 (1927), in a case involving an employe who contracted actinomycosis:
"It is often impossible to find the source from which a germ causing disease has come. The germ leaves no trail that can be followed. Proof often does not pass beyond the stage of possibilities or probabilities, because no one can testify positively to the source from which the germ came, as can be done in the case of physical facts which may be observed and concerning which witnesses can acquire positive knowledge. Under such circumstances the commission or the court can base its findings upon a preponderance of probabilities or of the inference that may be drawn from established facts."
. . .
In Gmeiner v. Industrial Comm., 248 Wis. 1 (1945) the Wisconsin Supreme Court clarified the meaning of the term "preponderance of probabilities" and stated that all that was meant by the use of the term was that in a given situation the inferences are strong enough to point to a fact as a probability and not as a speculative possibility. The court noted that the term is merely another way of saying that the inferences are in such shape as to constitute substantial evidence to sustain the findings of the commission.
In the current case, the respondent asserts that this case is distinguishable from Meinke and Pfister & Vogel because the applicant has established only the possibility, not the probability, of workplace exposure. On this point, the respondent emphasizes the small number of needle sticks suffered by the applicant (two under even her own testimony), the relatively low risk posed by the blood splashes, and the statistical likelihood of an "unknown exposure." The respondent cites Creamery Package v. Industrial Commission, 211 Wis. 326, 329-30 (1933), where the court reversed the commission's finding of work-caused typhoid infection, noting that in Pfister and the other cases, "there was at least some evidence because of which it could be reasonably held that the source of the infection could not be determined to a reasonable certainty."
Reliance on Creamery Package goes to the factual basis of denying the claim. Given the holdings in Pfister, Vilter and Gmeiner, the commission concludes that the difficulty in identifying a specific date on which the Hepatitis C virus infection does not require dismissal of the application as a matter of law. The commission also concludes that use of the last day of work as the date of injury is appropriate in this case. (1)
b. Factual issues (cause; extent of disability)
The factual issue of whether the applicant has established that her Hepatitis C condition arose out of her employment with the employer requires consideration of the opinions of the two medical experts, Dr. Sokhi and Dr. Harrison In reaching a decision on this issue, the commission is, of course, guided by the supreme court's holding in Pfister & Vogel that in cases involving injury by infection
the commission or the court can base its findings upon a preponderance of probabilities or of the inference that may be drawn from established facts.
In his first opinion, the June 2, 2004 practitioner's report at exhibit 4, treating doctor Sokhi recites the "probable modes of Hepatitis exposure" which included various things (intravenous drug use, tattoos, sexual promiscuity) which the doctor ruled out, leaving the status of "health care worker exposure to blood or bodily fluids." On the practitioner's report for itself, the doctor marked all three causation boxes affirmatively, but added with respect to direct and occupational disease causation that she "could have obtained Hep C from the workplace."
A medical opinion that employment exposure "could have" caused injury does not meet the reasonable degree of medical probability standard that applies in worker's comp cases. See Unruh v. Industrial Commission, 8 Wis. 2d 394, 401-02 (1959). The doctor then wrote the June 25, 2004 addendum which seems to explain his "could have" opinion -- which is that "based on the lack of medical evidence of any fluid or needlestick exposure reported, it is not probable." Exhibit 4.
Of course, the applicant testified she had two needle sticks and was exposed to patient blood splashes on her body, including her hands (through the gloves), her legs, and her face. Based on a history that included work as a labor and delivery nurse with exposure to patient blood and fluids on a regular basis, and two recalled needle sticks, Dr. Sokhi opined in the February 24, 2005 questionnaire at exhibit A that it was likely her Hepatitis C was caused by work.
As the ALJ noted, Dr. Sokhi does not expressly explain the change in opinion from "could have" (in the first report and addendum) to "likely" (in the questionnaire). Inferentially, of course, the difference can be explained by the differences in the described exposure between the reports. The June 25, 2004 addendum asks the doctor to assume "the lack of any fluid or needlestick exposure reported." The February 24, 2005 questionnaire, by contrast, is based on a history that included work as a labor and delivery nurse with exposure to patient blood and fluids on a regular basis, and two recalled needle sticks.
Of course, even the respondent's IME, Dr. Harrison, acknowledged that unreported sticks happen as often as reported needles sticks, with a health care worker having an approximately 1 in 10 chance of an unreported needle stick per year. Thus, it is reasonable to believe the applicant experienced needle sticks actually breaking the skin during her tenure with the employer.
Also important are the patient blood splashes, or the exposure to patient blood or fluid containing blood. While the ALJ notes that the virus is most efficiently transmitted by needlestick, the CDC report states:
Although no incidence studies have documented transmission associated with mucous membrane or non-intact skin exposure, transmissions of HCV from blood splashes to the conjunctiva have been described.
Exhibit 7, CDC report, page 7. Another report provided by the respondent states:
The risk following a blood splash is unknown, but is believed to be very small; however, HCV infection from such an exposure has been reported.
Exhibit 16, Exposure to Blood, What Health Care Workers Need to Know, page 2.
The conjunctiva, of course, are the delicate membranes that line the eyelids. The applicant stated she assisted in at least 300 births. It seems quite likely the applicant's person came in contact with patient blood -- or bodily fluids containing blood -- and that could have gotten in the applicant's conjunctiva, whether by direct splash or by rubbing her eyes with a gloved hand. Again, the applicant did not wear eye protection other than prescription glasses during deliveries
The risk of such exposure is further highlighted later in the CDC report where the writers recommend that "protocols should be in place for reporting and follow up of percutaneous or permucosal exposures to blood or bodily fluids that contain blood. [Emphasis supplied.]" Exhibit 7, CDC report, page 19. Dr. Harrison himself qualified his report by noting that risk of work-related infection would increase with "the performance of exposure-prone invasive procedures such as surgery." However, Dr. Harrison does not address the question of whether work as a labor and delivery nurse is similar to an "exposure prone invasive procedure."
Indeed, Dr. Harrison's report does not seem to take into account the particular work the applicant did as the labor and delivery nurse. He describes her employment simply as a female RN at the employer's clinic providing direct patient care. Dr. Harrison's report is written to address the risk of work-caused Hepatitis C among health care workers generally, rather than delivery room nurses in particular.
Further, while Dr. Harrison carefully details the remote odds against a health care worker getting Hepatitis C in a 14 year period from unreported needles sticks, the fact is that the applicant does have Hepatitis C. As Dr. Harrison recognized, the odds of the applicant contracting the infection in the first place is not the ultimate question, but the likelihood that she got the virus at work as opposed to some other source.
In this case, again, all the other known sources of infection have been eliminated. Dr. Harrison, as discussed above, points to the fact that in 10 percent of Hepatitis C cases the causative exposure is unknown, which he suggests overbears the 5 percent cases falling in the category of "Other" exposures including the exposure inherent in being a health care worker. The commission is not convinced.
The 5 percent "other/health care work" cases and the 10 percent "unknown" cases apparently reflect the risk to the population in general. What Dr. Harrison seems to suggest is that, since the other known causative exposures are eliminated, he is left with the 10:5 ratio of "unknown" to "health care work." However, this overlooks the nature of the "unknown" category, which applies to the population at large when the other risks are unknown. But the applicant is not a member of the population at large; she is a member of a known risk group -- health care workers.
Beyond that, the CDC report says this about the "unknown" category:
In the remaining 10%, no recognized source of infection can be identified, although most persons in this category are associated with low socioeconomic level. Although low socioeconomic level has been associated with several infectious diseases and might be a surrogate for high risk exposures, its nonspecific nature makes targeting prevention measures difficult.
As Dr. Harrison himself acknowledged, the applicant is not in the low socioeconomic level. Further, the commission reads the CDC report to suggest the unknown category might be a surrogate for known high risk exposures. That is, the "unknown" category does not really represent an entirely different method or methods of transmission of Hepatitis C, but rather the known risks which simply have not been identified by a particular patient. Since these causes have been ruled out in this case and since the applicant is not in the lower socioeconomic group but was employed as a healthcare worker, the commission declines to weigh the probabilities or inferences toward an infection by "unknown" transmission.
In sum, the commission finds Dr. Sokhi's opinion as stated in the February 24, 2005 questionnaire at exhibit A, to best reflect the applicants actual work exposure and to be most credible. The commission therefore concludes that the applicant has met her burden of proving that her Hepatitis C infection arose from her employment with the employer, while performing services growing out of or incidental to that employment.
The next questions are the extent of disability and the respondent's liability for medical expenses. The applicant's treating doctor, Dr. Sokhi, stated that Hepatitis C is curable in 40 to 50 percent of the cases, but that the applicant was still disabled as of February 25, 2005. Exhibit A. In a letter dated June 16, 2005, Dr. Sokhi's office said the applicant's "bloodwork drawn on May 31, 2005, came back normal with HCV RNA quantitative normal." Another test was set for the end of July 2005. Exhibit 5. The applicant herself testified that she was still treating, and that more blood work had been ordered for late in September 2005, or after the hearing. Transcript, page 47. As of the date of hearing, the applicant had only recently finished a series of interferon injections, with the last one only two weeks before the hearing. Transcript, page 27. The commission is satisfied that the applicant remained in a healing period to the date of hearing, that she was totally disabled from employment to that point, and that the medical expenses she incurred to treat her Hepatitis C condition were necessary to cure and relieve the effects of her Hepatitis C condition.
4. Award.
The applicant was therefore entitled to compensation for temporary total disability from December 31, 2003 to the date of hearing on September 22, 2005, a period of 90 weeks and one day. At the weekly rate of $441.78 (two-thirds of the conceded average weekly wage of $662.67, this amounts to $39,833.83. The applicant agreed to an attorney fee at 20 percent set under Wis. Stat. § 102.26 at 20 percent of the additional amounts awarded, or $7,966.77. That amount shall be deducted from the applicant's award, and paid to the applicant's attorney within 30 days. The remainder, $31,897.06, shall be paid to the applicant in 30 days.
The applicant also incurred reasonable and necessary medical expenses to cure and relieve the effect of her work injury, documented in exhibit J as follows: from Fox Valley Pathologists, S.C., $1,587.00, of which $789.68 was paid by Touchpoint, $690.94 was adjusted from the bill, and $106.38 is unpaid; from Gastrointestinal Specialists, $6,200.00, of which $59.19 was paid by United, $1,392.93 was paid by Touchpoint, $4,552.21 was adjusted from the bill, and $195.67 is unpaid; from John T. Grandone, M.D., S.C., $748.00, of which $546.38 was paid by Touchpoint, $133.55 was adjusted from the bill, and $68.07 is unpaid; from Medicap Pharmacy, $1,452.34, all of which was paid by the applicant; from The Medicine Shoppe, $654.21, all of which was paid by the applicant; from New London Family Medical Center, $7,012.14, of which $217.31 was paid by the applicant $1,751.33 was paid by United, $4,119.18 was paid by Touchpoint, $241.06 was adjusted from the bill, and $683.26 is unpaid; from Radiology Associates Fox Valley, $613.00, of which $10.72 was paid by the applicant; $305.14 was paid by Touchpoint, $271.42 was adjusted from the bill, and $25.72 is unpaid; from Theda Clark Medical Center, $6,139.50, of which $5,802.17 was paid by Touchpoint, $4.70 was adjusted from the bill, and $332.63 is unpaid; from ThedaCare Behavioral Health, $966.00, of which $731.87 was paid by United, and $264.13 was adjusted from the bill; and from ThedaCare Physicians, $1,154.00, of $212.79 was paid by the applicant $21.83 was paid by United, $284.98 was paid by Touchpoint, $341.16 was adjusted from the bill, and $293.24 is unpaid. The applicant also incurred $370.50 in reimbursable medical mileage.
Given the nature of the applicant's condition, her ongoing complaints, and her testimony about continuing medical treatment, this order shall be left interlocutory to permit additional orders and awards for temporary disability, permanent disability, or medical expense that might be sustained from her condition after the date of the hearing.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are modified to conform the foregoing and, as modified, are reversed.
Within 30 days, the employer and its insurer shall pay all of the following:
1. To the applicant, Cheryl A. Gabriel, Thirty-one thousand eight hundred sixty-seven dollars and six cents ($31,867.06) in disability compensation.
2. To the applicant's attorney, John B. Edmonson, Seven thousand nine hundred sixty-six dollars and seventy-seven cents ($7,966.77) in fees.
3. To Fox Valley Pathologists, One hundred six dollars and thirty-eight cents ($106.38) in medical treatment expense.
4. To Gastrointestinal Specialists, One hundred ninety-five dollars and sixty-seven cents ($195.67) in medical treatment expense.
5. To John T. Grandone, M.D., S.C., Sixty-eight dollars and seven cents ($68.07) in medical treatment expense.
6. To New London Family Medical Center, Six hundred eighty-three dollars and twenty-six cents ($683.26) in medical treatment expense.
7. To from Radiology Associates Fox Valley, Twenty-five dollars and seventy-two cents ($25.72) in medical treatment expense.
8. To Theda Clark Medical Center, Three hundred thirty-two dollars and sixty-three cents ($332.63) in medical treatment expense.
9. To ThedaCare Physicians, Two hundred ninety-three dollars and twenty-four cents ($293.24) in medical treatment expense.
10. To the United, Two thousand five hundred sixty-four dollars and twenty-two cents ($2,564.22) in reimbursement of medical expense paid.
11. To Touchpoint, Thirteen thousand two hundred forty dollars and forty-six cents ($13,240.46) in reimbursement of medical expense paid.
12. To the applicant, the sum of Two thousand nine hundred seventeen dollars and eighty-seven cents ($2,917.87) in out-of-pocket medical expenses and Three hundred seventy dollars and fifty cents ($370.50) in medical mileage.
Jurisdiction is retained for further orders and awards as are consistent with this decision.
Dated and mailed May 12, 2006
gabrich . wrr : 101 : 8 ND 3.31 8.2
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
Robert Glaser, Commissioner
During the conference held to assess the applicant's credibility, (2) the ALJ told the commission that he doubted the two needle sticks to which the applicant testified actually broke her skin, which explained why they were not reported. He also felt she exaggerated her exposure to patient blood splashes, noting, as he did in his decision, that the applicant did not report the splashes. He also felt her testimony seemed rehearsed or prepared.
However, the respondent's expert acknowledged that the odds were the applicant would have had two unreported needle sticks in her tenure as a health care worker for the employer. While the applicant's testimony may have seemed prepared or rehearsed, the applicant is a health care worker not a lay person, which no doubt affected the way her testimony about her health and exposure risk came across. Further, even if the applicant over-emphasized her exposure to blood and bodily fluids containing blood, the facts remain she was a labor and delivery nurse who assisted in 300 births, she does have hepatitis, and the other known risk factors have been eliminated. While the applicant cannot identify a particular event on a particular day that caused her infection, the commission is persuaded she has proven her case as explained above.
cc:
Attorney John B. Edmondson
Attorney Keith W. Kostecke
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