Wuesthoff Memorial Hosp. v. Hurlbert, 89-200
| Decision Date | 31 August 1989 |
| Docket Number | No. 89-200,89-200 |
| Citation | 14 Fla. L. Weekly 2033,548 So.2d 771 |
| Court | Florida District Court of Appeals |
| Parties | 14 Fla. L. Weekly 2033 WUESTHOFF MEMORIAL HOSPITAL, Appellant, v. James B. HURLBERT, Appellee. |
Robert A. Wohn, Jr., of Wohn and McKinley, Cocoa, for appellant.
Gary F. Large, Titusville, for appellee.
We affirm the deputy commissioner's finding that the claimant's injury from Hepatitis B infection was compensable. We find that the "occupational disease" test is applicable in this case, that the deputy commissioner's findings regarding proof of the elements of that test are supported by competent substantial evidence, and that those elements do not require proof of a specific incident of exposure to the Hepatitis B virus.
The claimant was employed in the labs of Wuesthoff Memorial Hospital for three years before he contracted the disease. During the last two years he worked in the outpatient lab, drawing blood and collecting specimens from patients, and processing blood samples from doctors' offices and companies in the area. He handled up to 400 blood specimens per day, many of which would leak or spill. He wore gloves about 50% of the time.
In late October 1987, his dog bit his thumb, breaking the thumbnail and puncturing the skin beneath. In early January 1988, he became ill and was referred by the hospital to Dr. Lane, who diagnosed Hepatitis B. The hospital controverted his claim for workers' compensation benefits, which specified the date of the accident as approximately October or November 1987. It maintained that there was no accident arising out of and in the course of the employment and no causal connection between the disability and the employment.
The claimant denied any exposure to Hepatitis B through sexual contact, needle sticks, intravenous injection or contact with members of his household (who tested negative for the virus). He stated that he spilled blood every day on his hands while his thumbnail wound was open, and that he handled blood samples of patients who obviously had hepatitis. He was not able to point to any specific incident in which he came in contact with fluid or blood serum that contained Hepatitis B, but felt that his work at the lab was the most logical place for him to have contracted the virus.
William Inman, the health services supervisor for the Brevard County Health Department, had interviewed the claimant to determine the source of his hepatitis and to prevent its spread. In a letter to the director of employee health, Inman stated that "after intensely interviewing Mr. Hurlbert my conclusion as to source of this infection, is his current employment at Wuesthoff Hospital," noting that "this position can expose someone to blood on a regular basis" and that he felt "very comfortable" with his conclusion.
Inman, who was presented to the deputy commissioner as an expert in the field of public health, testified that in his opinion the claimant contracted the Hepatitis B during his employment with the hospital. While he readily admitted that he could not give an absolute answer, he stated that he was talking about a "probable incident, highly, you know, probable incident." He relied upon the facts that his interview eliminated any other sources of the virus and the incubation period (1-6 months, primarily 1-2 months) corresponded to the period between the dog bite and the onset of symptoms, and upon information from the weekly report of the Center for Disease Control (CDC), which was accepted in evidence and established that health care workers are at greater risk of acquiring hepatitis because of their exposure to blood products. Inman stated that about 15% of the Hepatitis B cases in Brevard County are health care work-related and that according to the CDC, 20-30% of the health care workers who deal with blood will develop Hepatitis B.
Dr. Lane testified that in his opinion the claimant contracted Hepatitis B from his employment, although he candidly acknowledged that it was impossible to point to a specific incident in this type of situation and that he could not state unequivocally that the thumb wound was the source of exposure. 1 He explained "there's a strong likelihood," considering that he took an extensive history from the claimant which eliminated sexual contact and intravenous drug use as sources of the virus, and that he had carefully examined the claimant's body for needle pricks. He noted that lab personnel "are probably the most likely in the medical sphere or world to develop Hepatitis B inadvertently through handling of blood components or whatever." 2
In his order, the deputy commissioner found that the claimant contracted Hepatitis B "while in the course and scope of his employment," relying upon the CDC report and the testimony of the claimant, Inman and Dr. Lane. He found that the claimant's illness was consistent with the incubation period of a Hepatitis B exposure in November 1987 and that the claimant's testimony "showed a sequence of events leading to a contamination with the Hepatitis B virus and there is substantial competent evidence to prove a causal relationship between his work activities and this condition, which I find to be compensable."
Apparently relying on the "occupational disease" theory, the deputy commissioner found that the claimant's condition was actually caused by the employment conditions (handling of blood samples) peculiar to his occupation, that Hepatitis B was actually contracted during his employment, that the occupation of a health care worker presents a particular hazard of Hepatitis B, and that the incidence of the disease is substantially higher in health care workers than in other occupations and in the general public. He acknowledged that the evidence established that no specific incident was identifiable, but rejected this defense, finding that all the evidence indicated the claimant contracted the Hepatitis B virus in the laboratory where he worked.
The issue of causation presented in this case is really a question of whether the injury is one "arising out of" the employment. This phrase has been given several interpretations, but most courts have interpreted "arising out of" to require a showing that the injury was caused by an increased risk to which the claimant, as distinct from the general public, was subjected by his employment. 3 Risks distinctly associated with the employment include "occupational diseases" which are produced by the particular substances or conditions inherent in the environment of the employment. Such risks fall readily within the increased-risk test and are considered work-connected in all jurisdictions. Larson, The Law of Workmen's Compensation § 7 et seq.
Section 440.151(1)(a), Florida Statutes (1987), provides that disablement or death from an "occupational disease" is compensable if the disease is one which "has resulted from the nature of the employment in which the employee was engaged under such employer and was actually contracted while so engaged." The section defines "nature of the employment" as meaning "that to the occupation in which the employee was so engaged there is attached a particular hazard of such disease that distinguishes it from the usual run of occupations, or the incidence of such disease is substantially higher in the occupation in which the employee was so engaged than in the usual run of occupations." Section 440.151(2) further defines "occupational disease" as one "which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment," excluding "all ordinary diseases of life to which the general public is exposed, unless the incidence of the disease is substantially higher in the particular trade, occupation, process, or employment than for the general public."
We find that competent substantial evidence supports the deputy commissioner's factual findings which establish each of the elements required for entitlement to compensation under the occupational disease theory, as set out in Broward Industrial Plating, Inc. v....
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