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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.
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