Smith v. Capital Region Med. Ctr.

• Citation: 412 S.W.3d 252
• Decision Date: 13 August 2013
• Docket Number: No. WD 75078.,WD 75078.
• Parties: Stephen SMITH, Dec., Appellant, v. CAPITAL REGION MEDICAL CENTER, Respondent.
• Court: Court of Appeal of Missouri (US)

412 S.W.3d 252

Stephen SMITH, Dec., Appellant,

v.CAPITAL REGION MEDICAL CENTER, Respondent.

No. WD 75078.

Missouri Court of Appeals,

Western District.

March 26, 2013.

Motion for Rehearing and/or Transfer to Supreme Court Denied April 30, 2013.

Application for Transfer Denied Aug. 13, 2013.

John Boyd, Kansas City, MO, for Appellant.

Richard Montgomery, Jr., Columbia, MO, for Respondent.

Before: GARY D. WITT, P.J., THOMAS H. NEWTON, J., and ZEL M. FISCHER, Sp. J.

THOMAS H. NEWTON, Judge.

On behalf of her deceased husband Stephen Smith (Smith), Dorothy Smith (the claimant) appeals the Labor and Industrial Relations Commission's decision denying the claim for workers' compensation because the claimant failed to meet her burden of proof that her husband sustained an occupational disease arising out of and in the course of his employment with Capital Region Medical Center. The claimant contends that the Commission erred as a matter of law because it required her to prove a specific source of injury before work could be considered a substantial factor in causing Smith's occupational disease. She also asserts that the Commission erred in finding the medical opinion of employer's expert to be more credible than the medical opinion of her expert. We reverse and remand.

Smith filed a claim for workers' compensation on April 28, 2006, alleging that on or about April 20, 2005, he suffered an accident, a series of accidents, or an occupational disease as a result of an occupational exposure that caused an injury to his body as a whole. Smith was diagnosed with hepatitis in 1991, and he claimed that the medical evidence established that he contracted hepatitis C while working for Capital Region. Smith died on February 27, 2007. The cause of death was sepsis, hepatitis C, and acute tubular neurosis.

Smith worked for Capital Region from 1969 until March 2006 as a laboratory technologist. In this position, Smith withdrew blood from patients, worked with blood and blood products every day. Smith worked for Capital Region for a number of years before the implementation of safety measures, which are commonplace today.¹ For several years, Smith and his co-workers did not wear gloves while working. Thus, if Smith had a lesion of any kind on his hand, the possibility existed of blood coming into contact with that lesion. Moreover, for several years, Smith and his co-workers prepared blood slides by use of a “pipette,” which is essentially a narrow glass straw. Smith would place one end of the pipette into a vacuum tube of blood and then place his mouth on the other end of the pipette to suction some of the blood into the pipette. Thus, the possibility of accidentally suctioning blood into the mouth existed. For several years, Smith and his co-workers were not provided with face shields. Thus, the possibility existed of blood being splattered into Smith's face, particularly when blood was being centrifuged. Further, the possibility of a needle stick or a cut was present during Smith's entire tenure with Capital Region, but his co-workers noted that needle sticks were infrequent. Smith never reported a needle stick to his employer, but his employer also did not require the reporting of such incidents until sometime in the 1980s or 1990s.

Smith's wife, who was a registered nurse and had worked for Capital Region, and Smith's co-workers testified that they came into contact with blood regularly. Smith's co-workers performed the same job duties as Smith and said that they had gotten blood in their mouths while pipetting. One of Smith's co-workers and Smith's wife also said that they had experienced needle sticks during their careers. Smith's wife said that she had experienced numerous needle sticks and had blood of patients or bodily fluids of patients upon her person several times a week. Smith's wife also said that she observed cuts or bandages on Smith's fingers. Smith's co-workers and Smith's wife on occasions noticed spots of blood on Smith's protective lab coat or clothing, but none of them said that they ever saw blood on Smith's face, saw him ingest blood by pipetting, or saw him suffer a needle stick.

Smith's wife testified that Smith was wounded with a shotgun in a hunting accident in 1970. As a result of the gunshot wound, Smith underwent surgery and was given blood transfusions, with six units of blood. Other than the blood transfusions, Smith's wife said that her husband did not engage in any type of activities away from work where he could come into contact with other humans' bodily fluids. Smith did not use intravenous drugs; he did not have tattoos; and he was not a member of the military and never went to the orient.²

Smith was first given the diagnosis of hepatitis in 1991, when he was hospitalized for abdominal pain and blood tests revealed elevated liver enzymes. The hepatitis was later typed as hepatitis C.³ On April 20, 2005, claimant brought Smith to the emergency room because he was confused and lethargic. At that time, Smith was diagnosed with hepatic encephalopathy. Smith continued to try to work for Capital Region after this time, but, due to health problems associated with his disease, Smith was unable to work after March 2006. Thereafter, on April 28, 2006, Smith filed his claim for workers' compensation. While his claim was pending, Smith died on February 27, 2007. His cause of death was sepsis, hepatitis C, and acute tubular neurosis. Smith's wife was allowed to substitute herself for Stephen Smith as the claimant in this case.

At the hearing, the claimant and Capital Region presented competing expert medical evidence on the issue of causation of Smith's hepatitis C. Claimant presented the deposition testimony of Dr. Allen Parmet, who opined that Smith's work for Capital Region was the likely cause of contracting hepatitis C. According to Dr. Parmet, the number one cause of hepatitis C “is blood borne, that is by transfusion of blood or body products,” which can occur by transfusion or by needle stick. Dr. Parmet noted that Smith worked for Capital Region for many years handling blood and body products before the health care industry began to pay attention in the mid–1990s to the safety risks posed by blood-borne pathogens. Dr. Parmet identified the risk of blood splashing into Smith's eyes, nose, and mouth and opined that needle sticks are a very significant risk factor for all phlebotomists and laboratory personnel. Indeed, Dr. Parmet found that Smith's job placed Smith in the highest risk group for hepatitis C infection. Dr. Parmet stated that Smith reported that he suffered multiple needle sticks while working. Dr. Parmet acknowledged that receiving a blood transfusion in 1970 was a major risk factor for contracting hepatitis C but ultimately opined that Smith's work for Capital Region and Smith's daily exposure to blood and body products for many years was the largest risk factor and the most probable source causing Smith to contract hepatitis C, either through a needle stick or otherwise handling blood or body products.

In regard to the period of time after a person is exposed to hepatitis C and the time a patient can predictably become symptomatic, Dr. Parmet said that there is an average incubation period of six weeks between the initial exposure and the development of acute hepatitis syndrome. That syndrome includes flu-like symptoms of general aches, pains, malaise, fevers but rarely jaundice. Dr. Parmet stated, however, that not everyone who gets the infection develops the acute syndrome. Dr. Parmet said that half to two-thirds of people are completely asymptomatic and never know when the initial infection was acquired. Following this incubation period, there is a latency period where the hepatitis C virus is slowly growing, replicating, and damaging the liver. According to Dr. Parmet, the minimum time from onset of the infection to onset of actual liver disease is seven years, with fifteen years being the average.

Dr. Parmet said that Smith's blood transfusion of six units of blood as a result of the gunshot incident was a major risk factor for developing hepatitis C. Dr. Parmet said that Smith's risk of getting hepatitis C from the six units of blood (because the transfusions occurred prior to screening tests being performed on the blood) was essentially six percent. When asked whether he had an opinion whether Smith's blood transfusion in 1970 either caused or contributed to the cause of the development of hepatitis C in Smith, Dr. Parmet opined:

Based on [the] statistics, as well as [Smith's] own medical history absent any symptoms of cirrhosis, liver disease prior [to] the 1990s, no evidence of development of cirrhosis until after 2000, it seems highly improbable that the blood transfusion of [1970] ⁴ would have been causal, first of all, because the absolute risk was 6 percent and so then half of all people who have hepatitis C should have developed cirrhosis within 15 years or about 1985. And yet [Smith] doesn't develop cirrhosis for 30 years, which would put him down in the very few percentage of people who do develop cirrhosis with that long a latency.

On cross-examination, however, Dr. Parmet testified that the website of his current employer, St. Luke's Hospital, indicated that a person could live with hepatitis C for 15 years or longer before it is even diagnosed. Dr. Parmet explained the average time from infection with hepatitis C to when a person becomes symptomatic is 15 years. So according to Dr. Parmet, half of the people with hepatitis C will become symptomatic before 15 years, and half of the people will go at least 15 years before being symptomatic.⁵

Dr. Parmet testified that needle sticks were a very significant risk factor for phlebotomists and laboratory personnel and occurred quite frequently prior to the institution of OSHA standards. Dr. Parmet said that he was involved in a study in the late 1980s that looked at the statistical risk of acquiring...