HARRISON MEMORIAL HOSP. v. Gagnon

• Decision Date: 01 March 2002
• Docket Number: No. 26601-6-II.,26601-6-II.
• Parties: HARRISON MEMORIAL HOSPITAL, Appellant, v. Ann B. GAGNON, Respondent.
• Court: Washington Court of Appeals

40 P.3d 1221

110 Wash. App. 475

110 Wn. App. 475

HARRISON MEMORIAL HOSPITAL, Appellant, v. Ann B. GAGNON, Respondent.

No. 26601-6-II.

Court of Appeals of Washington, Division 2.

March 1, 2002.

Elizabeth K. Reeve, Reeve Shima, Seattle, Counsel for Appellant.

Benjamin Riverbed Sligar, Law Office of Gregory F. Logue, Tacoma, Counsel for Respondent.

John R. Wasberg, Dept. of Labor & Industries, Seattle, Counsel for other party Dept. of Labor & Industries.

MORGAN, J.

The main question in this worker's compensation case is who has the burden of persuasion in the superior court. Under RCW 51.52.115, that burden rests on whoever is attacking the findings and decision of the Board of Industrial Insurance Appeals. The superior court so held, and thus we affirm.

Hepatitis C is a disease that infects the liver. It is caused by a "virus or blood borne pathogens."¹ It is diagnosed by testing the blood for elevated liver enzymes and antibodies to the Hepatitis C virus. Unless blood tests are done, it "may take twenty years" to manifest itself.² Its incubation period is "about six to eight weeks, after which ... sometimes the liver enzymes may start to rise."³ It can be transmitted when an uninfected person internalizes the blood of an infected person, as, for example, by having sex without a condom; by ingesting a substance into the nose through a device previously used by an infected person; or by puncturing one's skin with a needle previously used by an infected person. Risk factors include using illicit drugs, obtaining tattoos, and piercing body parts.

Since January 1990, Gagnon has been "clean and sober[.]"⁴ Before 1990, she frequently snorted cocaine into her nose through "a straw or other device" that she often "shared ... with other [users] of cocaine."⁵ There is no evidence that she used a needle to inject cocaine or other illicit drugs. She has not been monogamous, and she rarely has required her partner to wear a condom. She has four tattoos, and her ears have been pierced in five locations.

From 1985 to 1991, Gagnon was in the Navy. According to the superior court's findings, "[t]he work required her to perform Emergency Medical Technician duties aboard an ambulance, to administer immunizations, to handle bloody surgical instruments, and to clean operating rooms of substances that included blood."⁶ She did not wear protective clothing because the Navy did not require it. She does not recall being stuck with a needle while in the Navy,⁷ but a co-worker at Harrison recalls her saying that she once was.⁸ When she left the Navy, her liver enzymes were "within normal limits."⁹

In November 1990, Gagnon was hired as an operating room technician at Harrison. According to the superior court's later findings, this employment "required her to work directly with surgeons during surgical procedures[,]" "to handle bloody instruments[,]" and "to clean substances that included blood."¹⁰ She generally wore protective clothing, which the hospital required. She formally reported four incidents of exposure to other persons' blood,¹¹ but her physician, Dr. Robert Caulkins (who coincidentally is on the staff at Harrison), thought that her exposure was undoubtedly much greater. He later testified:

The exposure that Ann Gagnon has had as a tech I can assure you exceeds more than a few exposures, whether she knows it or not. The exposures happen very frequently and on a weekly basis. She's getting blood on her hands through broken gloves, which happens probably multiple times a week which would never be documented. She is getting bone dust in her eyes whether she knows it or not, which goes undocumented. She is getting blood splatters in her eyes, which goes undocumented, unless it's very substantial, which never gets document[ed]. She might have even had superficial pokes to her hands that she might not even be aware of that go undocumented[.][¹²]

Dr. Caulkins became Gagnon's physician in December 1992. He periodically tested her liver enzymes,¹³ which were "negative" until 1997. In 1997, she was diagnosed with Hepatitis C, and a later test showed that her liver enzymes were elevated.¹⁴

On September 5, 1997, Gagnon's liver was biopsied by Dr. Yuen San Yee, a specialist in intestinal and liver disorders.¹⁵ Although a biopsy "does not date the time of exposure," the presence of "fibrosis or significant scarring" indicates "that the disease has been there for a long time."¹⁶ The converse does not always follow, for the disease "can be there for a long time without a person ever developing fibrosis or scarring[.]"¹⁷ Gagnon's biopsy did not show "fibrosis or cirrhosis."¹⁸

On March 9, 1998, Gagnon filed a worker's compensation claim. She alleged that she had acquired Hepatitis C from the "multiple exposures to blood she [had] encountered at Harrison."¹⁹ The Department of Labor and Industries (DLI) allowed the claim.

On April 9, 1998, Harrison appealed to the Board of Industrial Insurance Appeals (the Board).²⁰ The Board appointed a hearing examiner who then viewed and listened to the witnesses, including three physicians. Dr. Caulkins said in effect that Gagnon probably had acquired Hepatitis C from her work at Harrison;²¹ Dr. Yee said in effect that he could not tell how Gagnon had acquired Hepatitis C;²² and Dr. Hartwell said in effect that Gagnon probably had not acquired Hepatitis C from her work at Harrison.²³

On September 8, 1999, the examiner proposed a decision and order affirming DLI.²⁴ Essentially then, the examiner ruled against Harrison and for Gagnon.

Harrison appealed to the Board,²⁵ but the Board adopted the examiner's recommendations.²⁶ Harrison next appealed to the superior court,²⁷ which held a bench trial based on the record made before the examiner.²⁸ When the trial ended, the court held (1) that Harrison had the burden of persuasion and (2) that Harrison had not met its burden of persuasion. The court reasoned:

3.2 The determination of the cause of Ms. Gagnon's disease is a question of fact.

3.3 If the evidence as to a factual issue is evenly balanced, the finding of the Board of Industrial Insurance Appeals as to that issue must stand: But, if the evidence produced by the party attacking the finding preponderates in any degree, then the findings should be set aside.

3.4 Harrison Memorial Hospital is the party challenging the Board's decision and has the burden to establish its case by a preponderance of the evidence.

3.5 Harrison Memorial Hospital successfully challenged some of the factual conclusions affirmed by the Board, but these successful challenges only brought the evidence to an even balance. Had Harrison presented these challenges to the Department of Labor and Industries when the burden of proof was upon Ms. Gagnon, the determination may have been different. However, because the evidence presented to the court is equally balanced, Harrison Memorial Hospital has failed to carry their burden of proof.²⁹

Interestingly and perhaps not consistently, the superior court also found that Gagnon "was more probably than not infected with the Hepatitis C virus as a proximate result of her work activities at Harrison ... than as the proximate result of any of her other activities that created an increased risk of contraction of the virus."³⁰ The superior court affirmed the Board, and Harrison filed this appeal.

RCW 51.52.115 is the key statute. It provides in part that "the findings and decision of the board shall be prima facie correct and the burden of proof shall be upon the party attacking the same."

According to the cases, one way an appellant can attack the board's findings is by showing, usually though not always by motion for summary judgment,³¹ that the evidence in the record made before the Board³² is insufficient to support one or more of the Board's essential findings.³³ In Olympia Brewing Co. v. DLI,³⁴ for example, a husband died at work. His widow claimed a pension but did not produce any evidence showing cause of death. DLI and the Board's predecessor granted her a pension anyway. The Supreme Court held "that one sustains the burden of proving that a decision of the [Board's predecessor] is erroneous when one demonstrates that there is not sufficient evidence to support it;"³⁵ that the employer had sustained that burden by showing that the widow had not produced any evidence before the board's predecessor; and thus that the employer was entitled to prevail.

Another way in which the appellant can attack the board's findings is by demonstrating to a trier of fact, at trial in superior court, that the evidence preponderates against those findings. As one court recently said:

The Board's decision is prima facie correct under RCW 51.52.115, and a party attacking the decision must support its challenge by a preponderance of the evidence. Ravsten v. Department of Labor & Indus., 108 Wash.2d 143, 146, 736 P.2d 265 (1987). On review, the superior court may substitute its own findings and decision for the Board's only if it finds "`from a fair preponderance of credible evidence', that the Board's findings and decision are incorrect." McClelland v. ITT Rayonier, Inc., 65 Wash.App. 386, 390, 828 P.2d 1138 (1992) (quoting Weatherspoon v. Department of Labor & Indus., 55 Wash.[App.] 439, 440, 777 P.2d 1084 (1989)).[³⁶]

Olympia Brewing,³⁷ numerous other cases,³⁸ and Washington's Pattern Instructions (WPI) are all in accord.³⁹

Against this backdrop, Harrison advances three arguments. First, it argues that the record made before the Board does not contain evidence sufficient to support a finding that Gagnon contracted Hepatitis C in the course of her employment at Harrison. Second, it argues that it should not have been required to bear the burden of persuasion. Third, it argues that even if it had the burden of persuasion, this court should find that the evidence is not evenly balanced, but instead preponderates against the Board's findings.

I.

The question underlying the first argument...