|
CITY OF TULSA
FIRE DEPARTMENT, OWN RISK, Petitioner,
v.
KEITH A. MILLER and THE WORKERS' COMPENSATION COURT, Respondents.
PROCEEDING TO
REVIEW AN ORDER OF A THREE-JUDGE PANEL OF THE WORKERS' COMPENSATION
COURT
SUSTAINED
http://wyom.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=446066
CITY OF TULSA
FIRE DEPT. v. MILLER
2006 OK CIV APP 57
135 P.3d 850
Case Number: 102009
Decided: 04/14/2006
Mandate Issued: 05/11/2006
DIVISION III
THE COURT OF CIVIL APPEALS
OF THE STATE OF OKLAHOMA, DIVISION III
Alan L.
Jackere, Acting City Attorney, David A. Shapiro, Assistant City
Attorney, Cornelius R. Johnson, Assistant City Attorney, CITY OF
TULSA, a municipal corporation, Tulsa, Oklahoma, for Petitioner,
J.L. Franks, Tomy W. McDonald, FRASIER, FRASIER & HICKMAN, Tulsa,
Oklahoma, for Respondent Keith A. Miller.
Kenneth L.
Buettner, Chief Judge:
¶1 Keith A.
Miller was a twelve-year member of the Tulsa Fire Department where
he worked as a first responder. Sometime during his employment, he
contracted hepatitis C. The Workers' Compensation Court found that,
as is often the case in these types of claims, the claimant could
not testify as to which, of several exposures, was the source of the
disease. It then found the claim compensable. A three-judge panel
unanimously affirmed. We sustain the order.
¶2 Miller
filed his Form 3 June 4, 2003, seeking medical treatment from May
10, 2003 and continuing. The City of Tulsa (Tulsa) denied that the
injury was related to work.
¶3 For
documentary evidence, Miller submitted a report from Dr. Hallford,
dated May 29, 2003. The doctor took a history from Miller, including
that one candidate for transmission of the virus had tested
negative, but she was the only one tested. The doctor made a general
statement: "Health care and public safety workers are certainly
known to be at higher risk of catching such blood-borne infections
and he has no other history of exposure." The doctor further stated
that hepatitis C can progress slowly and cause liver damage, but
that Miller was currently asymptomatic. This doctor formed the
opinion with a reasonable degree of medical certainty that Miller's
HCV infection was work-related and that he should see a
gastroenterologist or hepatologist to see if he was a candidate for
Interferon therapy and/or antiviral medication. Finally, the doctor
found that Miller was working and could continue working, with
standard blood precautions.
¶4 Miller
also submitted treatment notes from 2000 showing abnormal liver
function tests and his denial of high risk activities. He admitted
moderate alcohol intake. The hepatitis C diagnosis was made after
previous work-ups of abnormal liver function tests. There are also
hand-written treatment notes dating from 1991.
¶5 Tulsa
submitted a report from Dr. Mitchell, dated August 18, 2003. Dr.
Mitchell stated that Miller claimed that there was only one possible
exposure to hepatitis C, but this exposure subsequently tested
negative and Miller was unable to recall any other exposures to
blood or blood products during his employment. Dr. Mitchell related
the clinical chronology of Miller's condition. He noted that Miller
admitted having had unprotected sex with two different women after
his divorce and that he was not aware of their hepatitis status. The
doctor performed a physical examination and reviewed medical
records. He formed the opinion that Miller did not contract the
hepatitis C virus as a result of work activities with the Tulsa Fire
Department. He founded this opinion on the fact that the source
tested negative and Miller could recall no other incidences where he
was exposed to blood or blood products. He further based his opinion
on information from the Center for Disease Control which apparently
states that Miller is at intermediate risk for contracting the
disease because of his undiagnosed liver problems, noting that
Miller had elevated liver function tests since 1996. He stated that
other sources of the infection include his episodes of unprotected
sex with partners of unknown hepatitis C status. Tulsa also
introduced Miller's treatment records for historical purposes.
¶6 Finally,
Miller testified. He stated that his job as a first responder
firefighter required him to be exposed to blood and blood-borne
pathogens sometimes several times a day, sometimes several times a
week. They respond to such things as car accidents. He was first
diagnosed with hepatitis C in 2000, but his liver function tests had
been elevated for several years. He testified that firefighters get
regular physicals from the City physician once a year and his liver
enzymes had been high for several years, but the City doctor said it
was nothing serious, that many things could cause that. However, his
treating physician wanted to follow up and in 2000, he tested
positive for hepatitis C. He testified that he could point to no
specific incident of exposure to the virus, and outside his
employment with Tulsa, he did not work in any healthcare areas. For
the first eight years of his employment with Tulsa, he worked with
Engine 27, which was usually the first, sometimes the second,
busiest engine company. He stated that he was not an intravenous
drug user, did not engage in homosexual activity; had not had sexual
contact with women that he knew had hepatitis C; and that he had not
been exposed to hepatitis C outside of his employment, so far as he
knew. He testified that Dr. Mitchell's statement that he could not
recall any other instance in which he was exposed to blood borne
products except the one incident where the person tested negative,
was untrue. He stated that he had been exposed to blood several
times. Currently, he was not experiencing any problems due to his
hepatitis C status, except some fatigue and occasionally flu-like
symptoms. He stated that so far as he knew, he was not diagnosed
with hepatitis C before he began employment with Tulsa.
¶7 On
cross-examination, Miller stated that the one incident in 1996 where
the person was tested, he was aware that her hepatitis test came
back negative. He agreed that he could not relate his contracting
hepatitis C to any specific incident while on duty. Prior to 1996,
Tulsa did not have a policy about reporting contacts with body
fluids, just blood-to-blood contact, which is why the 1996 contact
was reported. He stated that he had had unprotected sex with three
women since 1990 and none, to his knowledge, have been tested for
hepatitis C.
¶8 On
re-direct examination, Miller testified that hepatitis C can be
transmitted blood-to-blood, or through eyes, nose, mouth, ears or
even nail beds and that he had been exposed numerous times to blood
in those ways.
¶9 Title
11 O.S. 2001 § 49-110 (A) provides:
No firefighter
shall be retired, as provided in Section 49-109 of this title, or
receive any pension from the System [municipal retirement system],
unless there shall be filed with the State Board certificates of the
firefighter's disability. Any member of the fire department of any
municipality who is disabled as a result of heart disease, injury to
the respiratory system, infectious disease, or cancer was not
revealed by the physical examination passed by the member upon entry
into the department, shall be presumed to have incurred the
heart disease, injury to the respiratory system, infectious disease,
or cancer while performing the firefighter's duties as a member of
such department unless the contrary is shown by competent evidence.
As used in this section, "infectious disease" means hepatitis, human
immunodeficiency virus, meningitis and tuberculosis. (Emphasis
added).1
¶10 In
Johnson v. City Woodward,
2001 OK 85,
38 P.3d 218, the Oklahoma Supreme Court applied the §49-110
presumption to a firefighter's heart disease claim. It held that the
Workers' Compensation Court was the court to determine whether the
carrier had "rebutted the presumption of subsection (A) by competent
evidence and whether the illness is job-related." Id. at ¶
17, p. 225. The Johnson court further noted that although
§49-110(A) may be inartfully drafted, the legislature nonetheless
intended that the presumption that the disease was incurred during
service unless the contrary is shown, was meant to be woven into the
workers' compensation system. Consequently, because the facts at
hand were that Miller did not have hepatitis when he began his
firefighter career, there is a legal presumption that he contracted
this disease during his service as a firefighter. The burden then
shifted to Tulsa to produce competent evidence to the contrary.
¶11 On
appeal, Tulsa argues that Miller presented no evidence that related
his hepatitis C to any incident at work.2
As we have explained, the presumption is that Miller did contract
the virus at work, once he showed he was free from it when he began
his tenure with the fire department. It then became Tulsa's burden
to present competent evidence to rebut that presumption.
¶12 Tulsa
relies on Deaconess Hospital v. Ledbetter,
2002 OK CIV APP 29, 41 P.3d 1051, in which a lithotripsy
technician contracted hepatitis. It was unrefuted that the water tub
in which she placed her hands contained human blood, urine and some
fecal matter and was not cleaned between patients. Although she wore
gloves, water often came over the tops of the gloves. There was no
particular time she could recount when she would have contracted the
virus. The hospital put forth evidence that the worker had tattoos
and multiple sexual partners. The appellate court found that the
claimant's evidence prevailed and awarded her benefits. It cited the
Wheaton v. City of Tulsa Fire Department,
1998 OK CIV APP 155, 97 P.2d 194, ¶ 7, p. 196, for the principle
that "...the fact Claimant cannot specify which of several specific
incidents [exposures] caused him to contract the virus, does not bar
him from recovery under this theory. Proof of several exposures, and
that one of them caused the injury, is sufficient."
¶13 Neither
Wheaton nor Deaconess Hospital mentions the §49-110(A)
presumption. This is because "infectious disease" was added to
§49-110(A) by Laws 2001, c. 359, effective July 1, 2001. Wheaton
was decided in 1998, and Deaconess Hospital involved an
employee that had contracted hepatitis C before March 24, 1999.
Then, in 2002, the Legislature made the provision of §49-110(A)
relating to infectious diseases retroactive to November 10, 1999. As
a result, neither Wheaton nor Deaconess Hospital
provide guidance when the §49-110(A) presumption applies.
¶14 The
presumption is that Miller, who was hepatitis-free when he began his
employment as a firefighter, contracted the virus as a result of his
employment. The City of Tulsa did not produce sufficient evidence to
convince the trial court to the contrary.
¶15 The
decision of the trial court, as unanimously affirmed by the
three-judge panel, is SUSTAINED.
MITCHELL, P.J.,
and ADAMS, J., concur.
FOOTNOTES
1 Effective July 1, 2002, section A was amended by
the addition to the end of the paragraph of this sentence:
"Effective November 10, 1999, the provisions of this subsection
relating to infectious disease shall apply."
2 On appeal to the three-judge panel, Tulsa alleged
that Miller was unable to state or pinpoint any specific exposure.
Citationizer© Summary of Documents Citing This Document
|
