http://www.dwd.state.wi.us/wc/

Wisconsin             http://www.dwd.state.wi.us/

“It is often impossible to find the source from which a germ causing disease has come. The germ leaves no trail that can be followed. Proof often does not pass beyond the stage of possibilities or probabilities, because no one can testify positively to the source from which the germ came, as can be done in the case of physical facts which may be observed in concerning which witnesses can acquire positive knowledge. Under such circumstances the commission or the court can base its findings upon a preponderance of probabilities or of the inference that may be drawn from established facts."

The Wisconsin Supreme Court recognized that an applicant may be able to prove a case of an occupational disease even where the finding would be drawn upon probabilities or inferences that may be drawn from established facts and not the certainty to point to a specific incident in which exposure to a particular germ can be isolated.

http://www.dwd.state.wi.us/lirc/wcdecsns/263.htm

STATE OF WISCONSIN

                           LABOR AND INDUSTRY REVIEW COMMISSION

                       P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

KRISTINE A MEINKE (SCHRODER), Applicant

LAKELAND MEDICAL ASSOC LTD, Employer

n/k/a MARSHFIELD CLINIC LAKELAND CTR

MARSHFIELD CLINIC, Employer

HERITAGE MUTUAL INS CO, Insurer

WAUSAU UNDERWRITERS INS CO, Insurer

                             WORKER'S COMPENSATION DECISION

                                       Claim No. 1996003508

The applicant submitted a petition for commission review alleging error in the administrative law judge's findings and order issued on March 12, 1998. The employer submitted an answer to the petition and both parties submitted briefs. At issue is whether the applicant sustained an injury arising out of her employment while performing services incidental to and growing out of that employment, the nature and extent of disability and liability for medical expenses.

The commission has carefully reviewed the entire record in this matter and hereby sets aside the findings and order below, and substitutes the following therefor:

                         FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant worked as a surgical nurse for many years, including from June 20, 1985 to June 30, 1989 with Lakeland Medical Associates and from June 30, 1989 until the present with Marshfield Clinic Lakeland Center, the employer in this case.

The applicant testified that she had been assisting Dr. Klabacha, a surgeon, for many years. Dr. Klabacha testified that there was a continuous exposure to blood products and body secretions in the practice of surgery and that both he and the applicant were exposed to the risk of Hepatitis C, as well as other bloodborne diseases on a daily basis. The applicant testified that she was exposed to patients' blood and bodily secretions by percutaneous puncture or by splash or by some other form on a daily basis. The applicant introduced into evidence incident reports in which she had been punctured by a needle or splashed by blood or bodily fluids while working as a surgical nurse. The applicant testified that there were many other incident reports but the employer was unable to locate such reports. However, Dr. Klabacha corroborated the applicant's testimony that she was subjected to bodily secretions and blood on a regular basis during her work for the employer. The administrative law judge noted that prior to going on the record the applicant stated that she had experienced at least 10 and less than 100 needle pokes and at least 10 and less than 200 blood splashes during her career.  

The applicant was found positive for Hepatitis C in January 1994 following being splashed by blood in her eye during surgery. Hepatitis C was not identified as a specific type of disease until 1989 and there was no specific test to evaluate for Hepatitis C until 1993. The applicant admitted that she had symptoms during an acute illness in 1991 which were similar to the symptoms for Hepatitis C. The applicant's acute illness in 1991 occurred prior to her taking a trip to Mexico in 1991, in which she performed some surgeries with Dr. Klabacha in a poor region of the country. The incubation period for Hepatitis C could be as long as 15 to 20 years and a person with the disease can go for many years without ever seeing any symptoms. The applicant admitted that she was not aware if she had come in contact with any specific patient who had Hepatitis C during her years of employment with the employer or prior to that time.

Dr. Klabacha testified that he took precautions for Hepatitis C among other bloodborne illnesses and diseases before he went into surgery, and that the applicant did the same thing. Dr. Klabacha testified that he was not aware of any incident which occurred in Mexico in which the applicant would have been exposed to Hepatitis C and that there was nothing out of the ordinary on the trip. However, Dr. Klabacha admitted that he was not aware of any particular individual with Hepatitis C that he had been exposed to or that the applicant had been exposed to during his work with the applicant as a surgical nurse. Dr. Klabacha could not specify any particular incident of being exposed to blood or a needle puncture that would have led to the applicant's contracting Hepatitis C.

Dr. Kirchner, a specialist in the field of Hepatitis C, indicated in his WC-16-B that the applicant contracted Hepatitis C due to numerous inadvertent needle stick exposures to patients' blood and other bodily fluids in the hospital and clinic settings over the past 10 to 15 years, and he indicated that this was the result of a traumatic incident. Dr. Kirchner indicated in his subsequent WC-16-B dated November 17, 1997 that the applicant suffered Hepatitis C due to an occupational exposure due to numerous needle sticks and blood splashes which was the result of an occupational disease, as well as a traumatic incident. Dr. McNutt, who also treated the applicant, indicated in her WC-16-B dated March 13, 1997 that the applicant's Hepatitis C was due to an occupational exposure, as well as a traumatic incident.

Dr. Kirchner noted that the applicant had been exposed to a specific patient on August 18, 1988 during surgery when she was poked by a dirty needle and the test indicated that the patient had Hepatitis A and B. However, it was not established that the patient suffered from Hepatitis C.   Dr. Kirchner indicated in a letter dated October 29, 1996 that there was no way to determine when an infection exposure occurred without documentation and corresponding laboratory test results and that there were no such tests available to detect the virus until 1993. Dr. Kirchner stated that Hepatitis C is a bloodborne virus most often transmitted by transfusions, contaminated needles or organ transplantation, and that individuals working in the health care occupations and especially those with frequent exposure to blood products such as surgeons, nurses, laboratory technicians are at an increased risk of contracting the virus. Dr. Kirchner stated on October 29, 1996 that due to the inaccuracy of early tests, the unavailability of testing of Hepatitis C virus until 1993 and poor documentation practices, it is impossible in this case to prove a direct exposure by incident or to predict the likelihood of the time or place that she was infected. However, Dr. Kirchner opined that there was no question in his mind that the applicant did acquire her Hepatitis C from exposure to blood products as part of her occupation since he was convinced that she has had no other exposures to blood products such as through transfusions or dirty needles.

The employer presented a Marshall Clinic Memo dated April 12, 1994 which noted the applicant's positive response to the Hepatitis C test in January 1994 and the medical notes stated that the applicant went to Mexico possibly one year earlier on a medical missionary trip and she did not recall any blood exposure on that trip.

The applicant's records were examined by Dr. Levin, on behalf of the employer. Dr. Levin opined that it is virtually impossible to attribute the applicant's exposure to Hepatitis C to any specific incident at work. Dr. Levin noted that there was reference in her medical records that she had sustained multiple needle sticks and pokes over the years, as well as blood splashes, and he noted that there was reference made to a possibility of being exposed to the blood of a patient with Hepatitis A and B in 1988 being checked, but there was no reference to Hepatitis C. Dr. Levin also noted that if the source in the 1988 incident was found to be positive for Hepatitis C the incidence of exposure through percutaneous injury of health care workers as sourced by being positive for Hepatitis C is anywhere from zero to 10 percent. Dr. Levin reasoned that there was anywhere from a 90 to 100 percent chance that the applicant did not become infected with Hepatitis C with that particular incident in 1988.

Dr. Levin also stated that one must keep in mind that in 40 to 50 percent of all cases of Hepatitis C there is no known risk factor for the transmission although some of this might be underreported by the patients themselves. Dr. Levin reasoned that given the fact that the applicant had sustained multiple needle sticks and pokes over the years, as well as blood splashes, and the fact that a single exposure to Hepatitis C does not imply transmission and subsequent infection, he could not say to a reasonable degree of medical probability that her acquisition of the Hepatitis C infection was related to any particular incident. The evidence also indicated that Hepatitis C could be transmitted through sexual contact and intravenous drug use. When the applicant was found to have Hepatitis C a physician recommended that her husband also be tested for the disease, but her husband has refused to be tested and at the time of the hearing had not taken the test to determine whether he was positive for Hepatitis C.  

The commission finds that the applicant has met her burden of proof that she contracted Hepatitis C as a result of her occupational exposure with the employer. The Wisconsin Supreme court noted in Pfister v. Vogel, 194 Wis. 131, 133-134 (1927), in a case involving an employe who contracted actinomycosis:

     "It is often impossible to find the source from which a germ causing disease has come. The germ leaves no trail that can be followed. Proof often does not pass beyond the stage of possibilities or probabilities, because no one can testify positively to the source from which the germ came, as can be done in the case of physical facts which may be observed in concerning which witnesses can acquire positive knowledge. Under such circumstances the commission or the court can base its findings upon a preponderance of probabilities or of the inference that may be drawn from established facts."

The Wisconsin Supreme Court recognized that an applicant may be able to prove a case of an occupational disease even where the finding would be drawn upon probabilities or inferences that may be drawn from established facts and not the certainty to point to a specific incident in which exposure to a particular germ can be isolated.

In the Pfister case the applicant worked for a tanning company and it was agreed that the actinomycosis could be carried on the hides of the animals that the employes worked with, and that the germ also passes by direct contact from animal to animal or from animal to man, and that it could pass through the air and enter through the human system through the mouth or nose. In the Pfister case the doctors agreed that there was at least a possibility that the deceased was infected with the germ from hides handled in the tannery but there was no specific incident in which the applicant could point to specific exposure to the actinomycosis germ while working for the employer. The Wisconsin Supreme Court reviewed the evidence and found it contained substantial credible evidence to support the finding that there was not an entire failure of proof to support the finding that it was more probable that the disease was contracted in the tannery than anywhere else, and that the probabilities were all to the effect that the deceased was infected with the germ in the tannery.

In a similar case of Vilter Manufacturing v. Industrial Comm., 192 Wis. 362 (1927), the Wisconsin Supreme Court found that a worker who contracted small pox suffered from an occupational disease. The court noted in Vilter that the medical testimony of at least two doctors on behalf of the applicant was to the effect that while it could not be stated as a certainty that he contracted small pox at the isolation hospital, it was probable that he did and much more probable than it was contracted elsewhere. The medical testimony on behalf of the employer in the Vilter case emphasized the fact that it could not be stated to a certainty that the applicant contracted the disease at the hospital while working for the employer, and it was urged that he may have contracted it on street cars, trains or elsewhere in his private life. The court held in Vilter that a finding to a reasonable certainty could be based upon evidence which shows only a preponderance of probabilities, and the inferences preponderate that the hospital where the applicant visited was the place of exposure, and the preponderance of inferences was so great that the commission could say it amounted to a reasonable certainty.

In Gmeiner v. Industrial Comm., 248 Wis. 1 (1945) the Wisconsin Supreme Court clarified the meaning of the term "preponderance of probabilities" and stated that all that was meant by the use of the term was that in a given situation the inferences are strong enough to point to a fact as a probability and not as a speculative possibility. The court noted that the term is merely another way of saying that the inferences are in such shape as to constitute substantial evidence to sustain the findings of the commission.

In the current case, the commission finds that the preponderance of the probabilities and the inference that may be drawn from established facts establish that the applicant obtained Hepatitis C from her exposure while working as a surgical nurse for the employer. Although Dr. Klabacha and Dr. Kirchner could not testify positively as to any particular incident of a poke or splash of blood or bodily secretion as the source of the applicant's Hepatitis C, Dr. Klabacha testified that he and the applicant were exposed to the Hepatitis C virus. It is undenied that Hepatitis C is a bloodborne disease. Dr. Kirchner credibly opined that there was no question in his mind that the applicant acquired her Hepatitis C from exposure to blood products as part of her occupation. Dr. Kirchner noted that he was convinced that the applicant had no other exposures to blood products such as through transfusions or dirty needles and it was not established that the applicant had any unusual circumstances or exposures while she was in Mexico for a short time in 1991.

The employer notes that Hepatitis C can be transferred through sexual contact and that the applicant's husband had refused to be tested and therefore it was not established that the applicant's husband did not transmit the disease. However, even if the applicant's husband did test positive for Hepatitis C it would also be equally possible that the applicant had infected her husband. The commission does not find that the failure of the applicant's husband to be tested for Hepatitis C overcomes the preponderance of probabilities in this case. Given the length of time that the applicant worked as a surgical nurse over many years for the employer, and given the number of exposures on a daily basis to bodily fluids and blood, and given the evidence that Hepatitis C is transmitted by blood and based on the reports from Dr. Kirchner and Dr. McNutt, as well as the testimony of Dr. Klabacha, the commission finds that the applicant's

Hepatitis C arose out of her employment. The case will be remanded to the department to determine the nature and extent of disability and liability for medical expenses in accordance with the commission's decision.

NOW, THEREFORE, this

                                             ORDER

The findings and order of the administrative law judge are hereby set aside and the commission's findings and order substituted therefor. It was established that the applicant suffered an occupational disease as a result of her work for the employer. The case is remanded to the department for further findings in accordance with the commission's order and further jurisdiction is reserved.

Dated and mailed: November 5, 1998

meinkke.wrr : 175 : 7 ND § 3.42

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

     NOTE: The commission did not consult with the administrative law judge concerning the credibility and demeanor of witnesses since credibility did not play an issue in the commission's decision. The commission disagreed with the administrative law judge's conclusion that the applicant needed to establish that she had been exposed to a specific patient with Hepatitis C or a specific traumatic incident of exposure to Hepatitis C. The commission found that the appropriate burden was for the applicant to establish a preponderance of probabilities or of the inferences that may be drawn from established facts, not the certainty to point to a specific incident in which exposure to a particular germ can be isolated.

Pamela I. Anderson, Commissioner (Dissenting)

I am unable to agree with the result reached by the majority and I hereby dissent. The employe first became a nurse in 1973 and continued to practice in Minnesota until 1979. From 1979 to 1984 she did not practice nursing. The employee next became employed by Lakeland Medical Associates and then in 1989 by Marshfield Clinic Lakeland Center.

The applicant was a nurse who had exposure to blood through needle pokes and blood splashes while she worked for the employer. The administrative law judge wrote in his decision that prior to going on the record the employee said that she had had more than 10 but less than 100 needle pokes and at least 10 and under 200 blood splashes in her career. The difference between 10 and 100 needle pokes and 10 to 200 blood splashes is quite large. The employee may have had a needle poke once about every two years versus 5 or 6 per year. The employee would have had a blood splash once about every two years versus 10 to 12 a year.

The employer had protocols that the employee was supposed to report these blood incidents. There are seven reported incidents in the record. Some of these patients were tested and were negative for Hepatitis C. There is no evidence in the record that the employee ever treated a Hepatitis C patient. There is no record that it is likely that a patient might have had Hepatitis C based on symptoms.

The applicant volunteered to help with surgery in Mexico and the studies indicate that there is a higher incidence of Hepatitis C in that population. Hepatitis C can also be transmitted through sexual contact and we have no tests of the applicant's husband.

I believe that the number of blood incidents was at the lower end of the applicants figures. Recording workplace accidents is the most accurate means of showing they occurred. Even though there were not tests for Hepatitis C during some of this period, health care institutions needed this information for Hepatitis B and AIDS. At the very least it was possible to tell if any of the patients involved had liver damage which would be a flag for Hepatitis C.

For these reasons, I agree with the administrative law judge that the applicant has failed to show that the Hepatitis C came from her work. I would affirm the appeal tribunal decision.

Pamela I. Anderson, Commissioner

cc: ATTORNEY MICHAEL F ROE

OMELIA SCHIEK & MC ELDOWNEY SC

ATTORNEY DAVID A PIEHLER

TERWILLIGER WAKEEN PIEHLER & CONWAY SC

ATTORNEY MARK W PARMAN

STILP & COTTON

Appealed to Circuit Court.  Affirmed August 19, 1999.