Kries v. Wa-Spok Primary Care, LLC

• Decision Date: 10 September 2015
• Docket Number: No. 32879–1–III.,32879–1–III.
• Parties: Shannon KRIES and Peter Kries, Appellants, v. WA–SPOK PRIMARY CARE, LLC, Respondent.
• Court: Washington Court of Appeals

190 Wash.App. 98

362 P.3d 974

Shannon KRIES and Peter Kries, Appellants,

v.WA–SPOK PRIMARY CARE, LLC, Respondent.

No. 32879–1–III.

Court of Appeals of Washington, Division 3.

Sept. 10, 2015.

Lawrence Jay Kuznetz, Powell Kuznetz & Parker PS, Spokane, WA, for Appellant.

Keller W. Allen, Mary Margaret Palmer, Law Firm of Keller W. Allen PC, Spokane, WA, for Respondent.

FEARING, J.

¶ 1 This appeal discusses whether a health clinic must employ or provide a reasonable accommodation to a wounded

employee, when the clinic asserts concerns about the wound spreading infection to patients. The trial court granted defendant WA–SPOK Primary Care, LLC, dba Women's Clinic at Deaconess Hospital summary judgment and dismissed plaintiff Shannon Kries' disability discrimination suit. Because of disputed material facts, we reverse.

FACTS

¶ 2 Shannon Kries bore a surgical wound

with inserted drains that led her employer, the Women's Clinic, to discharge her from employment. This statement of facts describes Kries' wound, explains the healing process of wounds, analyzes the risks of wounds, provides the treatment history for Kries' wound, recounts employment policies at the Women's Clinic, and relates the clinic's responses to Kries' attempts to return to work. Because the trial court dismissed Shannon Kries' claim for disability discrimination on summary judgment, we present the facts in a light most favorable to Kries.

¶ 3 Shannon Kries is a trained medical assistant. In 2007, while employed at Community Health Association of Spokane (CHAS), Kries underwent a panniculectomy

, the removal of excess skin around the abdomen after weight loss. The surgery left an open wound

. Defense expert, Dr. Michael Gillum, concedes that Shannon Kries' wound was a physiological condition identified in medical records, prerequisites for consideration as a disability under state law. CHAS allowed Kries to return to work after her surgery as long as she packed and covered the wound as her doctor instructed. Kries continued to work at CHAS through the end of 2009.

¶ 4 On December 31, 2009, the Women's Clinic at Deaconess Hospital hired Shannon Kries as its lead medical assistant. In this position, Kries served as the clinic's receptionist and assisted in taking patients' health history, vital signs, and blood.

¶ 5 Upon Shannon Kries' hire, the Women's Clinic instructed Kries to complete a preplacement assessment questionnaire, which sought the employee's medical history. Kries completed and signed the form, but did not date it. The completed form did not list Kries' stomach surgery

. Kries did not remember returning the completed form to the Women's Clinic. Kries testified that she told clinic personnel about her wound. Nevertheless, she did not recall informing her immediate supervisor about the wound when she was hired.

¶ 6 Shannon Kries' abdominal wound

slowly healed at the time she commenced employment with the Women's Clinic in January 2010. Kries cleaned the wound at home in the morning and evening, packed the lesion with gauze, bandaged it, and covered it with clothes. Kries never packed or dressed the wound while at work, and the wound never weeped or leaked at the Women's Clinic. The Women's Clinic presented no evidence that Kries passed an infection to a patient or employee.

¶ 7 On June 8, 2010, Shannon Kries sought treatment from Dr. Stephen Olson because her abdominal wound

stopped healing. Kries' original wound had decreased from thirty two centimeters to fifteen centimeters in size, but remained at the smaller size for months. Olson recommended surgery to stimulate healing. Kries spoke with her Women's Clinic supervisor, Carolyn Barnes, and informed her that she needed leave for the surgery. The clinic allowed Kries leave, even though her short tenure did not qualify her for leave under the Family Medical Leave Act (FMLA).

¶ 8 On July 14, 2010, Stephen Olson operated on Shannon Kries. Olson inserted two drains through separate quarter inch skin incisions in the abdomen, and the drains exited through two separate holes in the skin. Dr. Olson inserted the drains adjacent to the wound

. He sutured and stapled shut the wound.

¶ 9 On July 27, 2010, Stephen Olson granted Shannon Kries an unrestricted release to return to her Women's Clinic job with both medical drains in place. Olson considered Kries' wound

as closed, not open. In Olson's opinion, Kries did not pose a risk to herself others since work clothes covered the drains and the closed wound. The signed work release stated that Kries carried no infection.

¶ 10 Mary Wise, a registered nurse and the Women's Clinic's employee health coordinator, refused to permit Shannon Kries reemployment until Kries' abdominal wound

fully healed. Wise based her decision on the clinic's infection control policy. The opening sentence to the nine-page policy read:

No one is allowed to work with an open or draining wound

.

Clerk's Papers (CP) at 248. Neither the infection control policy nor the return to work policy defined "open or draining wound

." According to Dr. Michael Gillum, Deaconess Hospital chair of the Infection Control Committee, the policy applies "across the board," regardless of whether the employee holds a patient care position or non-patient care position. CP at 367.

¶ 11 The Women's Clinic also maintained a "Policy for Return to Work with Restrictions following Non–Work Related Injury, Surgery, or Personal Medical Conditions" (return to work policy). CP at 445. The return to work policy differentiated between direct patient care and non-patient care work employees. The policy read, in relevant part:

Part 1: All employees involved in direct patient care regardless of job code ...

A. Restrictions that will NOT be allowed in patient care are as follows:

....

No sutures or open wounds

on hands or forearms.

....

B. Restrictions that may be allowed in patient care areas with the approval of Employee Health and the department manager are as follows:

Sutures or wounds that can be completely covered, other than hands/forearms (i.e. chest, leg, face).

Part 2: All employees in non-patient care areas (Administrative, Medical records, PFS, etc.)

....

B. Restrictions that may be allowed in non-patient care areas with the approval of Employee Health and the department manager are as follows:

Sutures or wounds

that can be completely covered.

CP at 445. The return to work policy was silent on whether or not an employee with an inserted drain could return to work.

¶ 12 According to Sharyl Bergerud, director of infection control at Deaconess Hospital, the Women's Clinic conducts an evaluation of an employee on a "case-by-case" basis to assess the status of a wound

and, in turn, whether the employee may return to work. CP at 335. Importantly, no one examined Shannon Kries' wound or drains to determine if restrictions would be appropriate and capable of allowing Kries to return to work in either a patient care or non-patient care position.

¶ 13 Shannon Kries' immediate supervisor, Carolyn Barnes, spoke with clinic Human Resources Department and Employee Health Care Coordinator Mary Wise about returning Kries to work. Barnes learned that Kries could not return in any capacity so long as Kries had a draining wound

because the infection control policy governed. Barnes could have provided Kries non-patient care work if the Women's Clinic allowed Kries to return to employment. Kries wanted to return to work in any capacity and would accept a reduction in pay. She made weekly calls to Wise and Carolyn Barnes to update them on her progress and inquire about other positions.

¶ 14 The various medical professionals testifying in this case, including the parties' experts, offered diverse definitions of "open wound

" and "draining wound." Dr. Stephen Olson, Shannon Kries' attending general surgeon, defined an "open wound" as one that had a break in the skin when the dermis and epidermis are not intact. CP at 337. He defined a "draining wound" as one where drainage came out of the wound. CP at 337. He opined that one could have a draining wound without it being an open wound. Olson did not consider Kries' wound to be an open wound. After surgery, he closed the wound with staples. The wound remained closed despite the drains, because each drain exited through the skin and not through the wound.

¶ 15 Dr. Francis Riedo, the medical director of infection control and medical director of employee health at Evergreen Hospital in Kirkland, Washington, testified as an expert witness for Shannon Kries. Dr. Riedo noted redundancy in the infection control policy provision that referenced "open and draining wounds

." According to Riedo, an open wound is always draining. CP at 360, Since the policy does not preclude working with a closed wound, Riedo read the policy to allow work with a closed wound that is draining. Therefore, Riedo considered a "draining wound," under the infection control policy, as one that could not be contained and controlled. A covered wound, with its drainage controlled, was not an open or "draining wound."

¶ 16 According to Dr. Francis Riedo, an employer needs an unambiguous policy and the Women's Clinic's infection control policy is ambiguous. Riedo noted that employees leak secretions constantly from their genitals, mouths, and noses. Therefore, for the Women's Clinic policy to make sense, a draining wound

should be an uncontrolled draining.

¶ 17 Defense witness Dr. Michael Gillum, chair of the Deaconess Hospital Infection Control Committee, did not know why the infection control policy did not define the terms "open wound

" or "draining wound." He did not believe "any wound that is open" to be a helpful definition. CP at 371. To Gillum, the term "open wound" is self-explanatory and meant any wound not healed. CP at 371. According to Gillum, a scabbed wound is an "open wound." CP at 371. Gillum opined that any open wound was a "draining wound" and so he considered the two synonymous. CP at 371. He also deemed a sutured wound to be a closed wound....