See OCCUPATIONAL
DISEASE Onset of condition
See TIMELINESS OF CLAIM
Occupational disease
SHARON BAXTER ) DOCKET NO. 92 5897
CLAIM NO. N-390479 ) DECISION AND ORDER
APPEARANCES:
This is an appeal filed by the claimant, Sharon Baxter, on November 30, 1992 from an order of the Department of Labor and Industries dated November 10, 1992 which corrected and superseded an order dated May 26, 1992, and which rejected the claim for the reason no claim has been filed by said worker within one year after the day upon which the alleged injury occurred, and that claimant's condition is not an occupational disease, and bills regarding this claim are rejected except those which are authorized for diagnosis. Reversed and remanded.
Pursuant to RCW 51.52.104 and RCW 51.52.106, this matter is before the Board for review and decision on a timely Petition for Review filed by the claimant, Sharon Baxter, to a Proposed Decision and Order issued on September 24, 1993 in which the order of the Department dated November 10, 1992, rejecting the claim was affirmed.
The Board has reviewed the evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed and said rulings are hereby affirmed. [2]
Based on the uncontroverted medical evidence contained in the record we believe that Ms. Baxter has a valid claim for an occupational disease. While it is doubtlessly true that the incidents which resulted in her contracting hepatitis C could also have formed the basis for an injury claim, separate claims are not mutually exclusive. Just as one incident can result in aggravation of a condition caused by a previous injury and also be the basis for a new claim, one incident can serve as the basis for both an injury(1) and for an occupational disease(2) claim. The record supports Ms. Baxter's contention that she contracted an occupational disease as a result of exposure during the course of employment and filed an application for benefits in a timely manner. She is entitled to have her claim allowed.
The only medical evidence presented was the testimony of two physicians who had treated Ms. Baxter. Both Dr. James F. Kruidenier, a specialist in gastroenterology and hepatology, and Dr. Michael R. Boyd, a family practitioner, were of the opinion that she had contracted hepatitis C as a result of exposure to contaminated blood and tissue during the course of her employment as a dental assistant. Ms. Baxter's only exposure occurred while she was working for Dr. Dolgash and Dr. Haines, oral surgeons, during a two and one-half year period ending [3] in June of 1982. Following termination of employment she was seen by Dr. Boyd for vague and non-specific complaints which were ultimately attributed to some form of hepatitis. As medical science had not identified hepatitis C at that time her condition was described as non-A/non-B hepatitis. Even this rather vague and preliminary diagnosis was not made until December of 1984, when Dr. Boyd discussed the issue of causation with Ms. Baxter for the first time. Ms. Baxter's condition was not definitively diagnosed until some time in 1990 when she saw a physician in Las Vegas, Nevada. Following termination of her employment with Dr.'s Dolgash and Haines, she was able to work on a fairly regular and continuous basis and was not impaired or disabled as a result of her hepatitis. She received no treatment for hepatitis C until April of 1992 when as the result of reading a magazine article she sought and was provided interferon by Dr. Kruidenier.
It is clear that Ms. Baxter suffers from a job-related condition which would entitle her to benefits if she filed an application for benefits within the period provided in the statute. If this condition is considered to have arisen out of a "sudden and tangible happening" and to constitute an industrial injury, the period for filing an application for benefits would be one year following the incident as provided in RCW 51.28.050. In light of the uncontroverted medical testimony presented this is not the conclusion we reach. While the "needle stick" incidents satisfy the definition of an injury contained in RCW 51.08.100 and could have served as the basis for separate claims, no claims for these incidents were filed within the one year period set forth in the RCW 51.28.050. [4]
While the condition for which this claim was filed occurred as a result of on-the-job exposure and the likeliest source of this exposure were "needle sticks", there was, nevertheless nothing "immediate or prompt" about the onset of the physical conditions resulting therefrom. In light of the testimony of Dr. Kruidenier, the attending specialist, it is unlikely that the particular "needle stick" which initiated the disease process can be identified. In particular, he thought it unlikely that the disease was contracted from a hepatitis carrier identified in the early 1980's, as there was no test to identify hepatitis C until the 1990's. During the period within which Ms. Baxter could have filed an injury claim the disease had not developed to the extent that it was diagnosable and, had it developed, the medical community had no test to identify the condition.
Ms. Baxter's condition did not develop to the extent that it was disabling or required treatment until 1992. Both the manner in which the condition developed and the definition of an occupational disease convinces us that this is a condition or ailment which should be evaluated under the provisions of RCW 51.08.140. Consideration of the decisions in Nygaard v. Department of Labor & Indus., 51 Wn.2d 659 (1958) and Williams v. Department of Labor & Indus., 45 Wn.2d 574 (1954), supports our conclusion that this is precisely the type of condition which should be covered as an occupational disease. In light of the lengthy period that elapsed before the disease developed, was diagnosed, or required treatment, it would be unreasonable to require that a claim be filed within the period provided for a claim arising out of a ". . . sudden and tangible happening, of a traumatic nature, producing an immediate or prompt result . . . .". RCW 51.08.100. (Emphasis added). [5]
Even under the most literal and restrictive interpretation of RCW 51.28.055, as it existed prior to the 1984 amendment, the events which would initiate the period for filing a claim did not occur until December of 1984. Even then there was no positive diagnosis of the condition, as no test existed to provide this diagnosis, and the condition had not progressed to the extent that it was disabling or in need of treatment. As the 1984 amendments to RCW 51.28.055 became effective prior to that date and are clearly remedial in nature, they must be used in determining the timeliness of Ms. Baxter's application for benefits. Sharon Baxter filed an application for benefits within two years of the date on which she was notified in writing by a physician of the nature of her occupational disease.
After consideration of the Proposed Decision and Order, the Petition for Review filed thereto on behalf of the claimant, and a careful review of the entire record before us, we are persuaded that the Department order dated November 10, 1992 is incorrect and must be reversed and the claim remanded for allowance of the condition hepatitis C as an occupational disease.
1. On May 18, 1992, claimant, Sharon Baxter, filed an application for benefits alleging that she contracted hepatitis C as a result of exposure to contaminated blood and tissue during the course of her employment by Dr.'s Dolgash & Haines. The claim was assigned Claim No. N-390479.
The Department of Labor and Industries issued an order dated November 10, 1992, which corrected and superseded an order dated May 26, 1992, and which rejected the claim because no claim has been filed by said worker within one year after the day upon which the alleged injury occurred. That the [6] claimant's condition is not an occupational disease as contemplated by Section 51.08.140 RCW. Any and all bills for services or treatment concerning this claim are rejected, except those which are authorized by the Department for diagnosis.
Claimant filed a Notice of Appeal with the Board of Industrial Insurance Appeals on November 30, 1992 from the Department order dated November 10, 1992. On December 21, 1992 the Board issued its order granting the appeal, and directing that further proceedings be held on the issues raised by the notice of appeal.
2. During the two and one-half years she was employed as a dental assistant by Dolgash & Haines, claimant, Sharon Baxter, was exposed on a number of occasions to contaminated blood and tissue.
3. As a direct and proximate result of her occupational exposure, claimant's developed the condition of chronic hepatitis C, and status-post interferon treatment therefore.
4. No earlier than December 1984, claimant was told by her physician that she suffered from hepatitis non-A/non-B as a result of her occupational exposure to contaminated blood and tissue.
5. Claimant's condition of hepatitis C was not definitively diagnosed until 1990 and she was not impaired or disabled by this condition until May of 1992 when she received treatment, which treatment had not previously been available or required.
6. Claimant first received written notice of her condition and its cause from her physician in February 1992.
5. The order of the Department of Labor and Industries dated November 10, 1992, which corrected and superseded an order dated May 26, 1992 and which rejected the claim for the reasons that no claim has been filed by said worker within one year after the day upon which the alleged injury occurred, and the claimant's condition is not an occupational disease as contemplated by Section 51.08.140 RCW is incorrect, and is reversed, and the claim is remanded with directions to allow the claim for the occupational disease of hepatitis C, and to take such further action as may be authorized or indicated by law.
It is so ORDERED.
Dated this 7th day of January, 1994.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/_____________________________________
S. FREDERICK FELLER Chairperson
/s/_____________________________________
FRANK E. FENNERTY, JR. Member
/s/_____________________________________
ROBERT L. McCALLISTER Member
(1)RCW 51.08.100 "Injury." "Injury" means a sudden and tangible happening, of a traumatic nature, producing an immediate prompt result, and occurring from without, and such physical conditions as result therefrom.
(2)RCW 51.08.140 "Occupational Disease." "Occupational disease" means such disease or infection as arises naturally and proximately out of employment under the mandatory or elective adoption provisions of this title.