Missouri: Court Affirms Death Benefits for Hep C Exposure

Can a hospital worker recover benefits for hepatitis C without showing the disease was present in the hospital where he worked? Smith v Capital Region Medical Center, 2014 Mo. App. Lexis 1453 (lexis.com), 2014 Mo. App. Lexis 1453 (Lexis Advance) (December 23, 2014) affirmed an award of death benefits.

The worker did not produce any evidence of an actual patient with hepatitis C being treated at the hospital. His testimony and medical evidence were sufficient to show the probability of the presence of the disease and mechanism of exposure. "A claimant must prove through expert medical testimony the probability that the workplace contained a risk of exposure."

The worker was a lab tech who worked with blood daily, he sustained prior needle sticks, he did not wear protective gear, and his expert noted he was at a substantial increased risk of infection from hep c before OSHA standards. He was first diagnosed with hepatitis in 1991 and died from complications of the disease 16 years later. The employer's expert concluded that the hep c was chronic and most likely related to a remote blood transfusion. The worker never reported a needle stick.

Seven large health care employers or associations filed an amici curiae brief. The amici argued that they would have more exposure under comp beyond their "current parameter" if a worker only had to show the possibility of an exposure. The court explained it wasn't that easy: the worker had to show a probability of an exposure.

The court originally remanded the case in 2013 when it concluded the Commission applied the wrong standard of proof when it denied benefits. The ALJ in 2010 found claimant did not establish he sustained an accident or an occupational disease. The Commission affirmed the denial and found claimant produced no direct evidence of exposure. The court of appeals remanded and indicated the worker only had to establish a probability that working conditions caused the disease and establish a "recognizable link" between the disease and some distinctive feature of the job even if the causes are indeterminate.

On remand, the Commission reversed its earlier denial and then found the worker's expert to be more credible. It did not consider any new evidence. The court of appeals affirmed the award of death benefits.

The employer attempted to carve out a new issue and argued along with the amici that the determination of exposure required evidence that the specific disease existed in the work place. Most of the alleged errors were previously resolved in the first appeal and the court found the evidence presented was sufficient to meet the burden on the issue of causation. The court deferred to the Commission's new determination of credibility between competing experts and rejected the employer's alleged error that the weight of the evidence did not support the award.

Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug’s Mo. Workers’ Comp Alerts.

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