ANNEMARIE SCHUTTE, Employee, v. INDEPENDENT SCH. DIST. #281, SELF-INSURED/MINN. SCH. BD. ASSOC. INS. TRUST/BERKLEY RISK ADM=RS., Employer/Appellant.
WORKERS= COMPENSATION COURT OF APPEALS
MAY 8, 2003
MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY; JURISDICTION - SUBJECT MATTER. What is important in determining the compensability of medical treatment is not the diagnosis of potential consequences of the injury but the fact that treatment against such consequences is incidental to, necessary as a result of, and within the standard medical protocol for treatment of the work injury. Where the insurer did not dispute the reasonableness and necessity of the treatment at issue, and where the judge reasonably concluded that that treatment was causally related to the employee=s work injury, and where the treatment at issue was within standard medical protocol in treatment of the employee=s injury, the compensation judge=s award of payment for recommended testing for and protection against hepatitis B or HIV as a potential consequence of the employee=s human bite injury was not clearly erroneous and unsupported by substantial evidence, regardless of whether or not there might be coverage for such treatment under OSHA regulations, concerning which the WCCA has no subject matter jurisdiction.
Determined by Pederson, J., Rykken, J., and Wilson, J.
Compensation Judge: James F. Cannon.
WILLIAM R. PEDERSON, Judge
The insurer appeals from the compensation judge=s award of follow-up hepatitis B vaccinations and blood testing as a result of the employee=s work-related bite injury. We affirm.
The facts in this case are not in dispute. On October 23, 2001, AnneMarie Schutte [the employee] was working as an educational assistant for Independent School District #281 [the employer] when she was bitten on her right arm while attending to an agitated special education student. The bite was forceful enough to break the skin and draw blood. After going to the school nurse, the employee was seen at Camden Family Physicians. The student=s parents refused to allow blood testing to determine if the student was a carrier of any disease, so the employee was given a hepatitis B vaccination, and blood was drawn to test for HIV and hepatitis B. She also received a five-day prescription for an antibiotic. The physician=s assistant treating the employee=s injury recommended a second hepatitis B shot in one month and a third shot, with repeat HIV blood testing, after six months. The employee=s initial blood test results were evidently reported as negative, but the employee testified later that she was advised by the physician=s assistant that HIV attributable to the bite would not have shown up with that initial test. The employer=s workers= compensation insurer, the Minnesota School Board Association Insurance Trust [the insurer], paid for all charges related to the employee=s initial medical visit, but it subsequently refused to pay for the additional recommended treatment.
On February 4, 2002, the employer filed a Medical Request, seeking payment for the disputed medical treatment on behalf of its employee. The insurer filed its Medical Response on February 25, 2002, stating, ANo injury occurred. Treatment being offered is preventative and not covered under the statute.@ An administrative conference was held under Minn. Stat. ' 176.106 on March 4, 2002, and a Decision and Order awarding payment of the disputed expenses was issued on March 27, 2002. The insurer filed a request for a formal hearing on April 26, 2002.
The claims for payment for the follow-up treatment recommended for the employee=s work-related bite injury came on for a hearing before a compensation judge on September 20, 2002. At trial, the insurer conceded that the treatment recommended by Camden Family Physicians was reasonable, necessary, and appropriate. However, the insurer viewed the issue as whether the Minnesota Workers= Compensation Act provides for payment for prophylactic or preventative treatment for conditions (in this case hepatitis B and HIV) that were never diagnosed. In a Findings and Order issued October 31, 2002, the compensation judge concluded that the employee=s recommended preventative medical treatment, in the nature of two follow-up hepatitis-B vaccinations and a blood test to rule out the presence of hepatitis B or HIV, was reasonable and necessary to cure or relieve the employee from the effects of the work-related injury of October 23, 2001. The insurer appeals.
STANDARD OF REVIEW
In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@ Minn. Stat. ' 176.421, subd. 1 (1992). Substantial evidence supports the findings if, in the context of the entire record, Athey are supported by evidence that a reasonable mind might accept as adequate.@ Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id., at 60, 37 W.C.D. at 240. Similarly, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@ Id.
The insurer first contends that the language of the Workers= Compensation Act does not provide for payment of prophylactic or preventative treatment. Except as to cases where there has been exposure to rabies, with regard to which preventative treatment is specifically covered under Minn. Stat. ' 176.135, subd. 1(c), no mention is made in Minn. Stat. ' 176.135, or elsewhere in the Workers= Compensation Act, of coverage for preventative treatment for exposure to any disease. Therefore, the insurer argues, because the Act does not provide for preventative treatment for hepatitis B or HIV, the employee=s claims against the insurer for preventative vaccinations and blood tests for hepatitis B or HIV are barred. In support of its position, the insurer relies upon the supreme court=s decision in Lockwood v. Independent Sch. Dist. #877, 312 N.W.2d 924, 34 W.C.D. 305 (Minn. 1981), where, in a case pertaining to coverage for mental injuries consequent to mental stimuli, the court declined to construe the Workers= Compensation Act to provide coverage where it was not clearly evident, from the language of the Act, that the legislature intended coverage. We disagree with the insurer=s analysis.
Minn. Stat. ' 176.135, subd. 1(a), provides in part that
[t]he employer shall furnish any medical, psychological, chiropractic, podiatric, surgical and hospital treatment, including nursing, medicines, medical, chiropractic, podiatric, and surgical supplies, crutches and apparatus, including artificial members, . . . as may reasonably be required at the time of the injury and any time thereafter to cure and relieve from the effects of the injury.
The reasonableness and necessity of medical treatment under Minn. Stat. ' 176.135 is a question of fact for the compensation judge. See Hopp v. Grist Mill, 499 N.W.2d 812, 48 W.C.D. 450 (Minn. 1993). In determining whether medical treatment is compensable under the statute, we decline to view the statute as requiring a judge to further distinguish reasonable and necessary and causally related treatment by whether that treatment may be palliative, curative, or preventative in nature. In the present case, the insurer conceded that the recommended treatment for the employee followed Astandard medical protocol,@ and it did not dispute the reasonableness and necessity of the treatment. The recommended treatment here at issue, no less than the medical care provided on the day of the injury, relates directly to the bite injury sustained at work.
Citing decisions from Colorado and Wyoming jurisdictions, the insurer also argues that we should not construe medical treatment to be compensable under our Workers= Compensation Act unless the employee has sustained an Ainjury@ clearly related to that treatment. In the present case, it contends, there is no evidence that the child who bit the employee was infected with hepatitis B or HIV. As such, it argues, there is no evidence of even an exposure to hepatitis B or HIV. The employee=s claim that she may have been exposed to these diseases as a result of the bite wound does not rise, the insurer claims, to the level of either a Apersonal injury@ or an Aoccupational disease.@ Moreover, the insurer argues, Amerely the fear of contracting such a disease is not enough to make an employer and insurer liable for future testing.@ Again we are not persuaded.
Contrary to the insurer=s focus on the employee=s diagnosis as a result of her work injury, we believe that the focus should be on the injury itself. Therefore, the question here is not whether the employee sustained an injury in the nature of hepatitis B or HIV or even an exposure to such a disease, but whether the employee=s need for medical treatment is incidental to her admitted injury. It is undisputed that the child=s bite broke the employee=s skin and necessitated the employee=s visit to Camden Family Physicians. The insurer paid for the initial treatment, including the first hepatitis B vaccination. The recommended follow-up vaccinations and testing are consistent with Astandard medical protocol.@ The insurer=s argument appears to be that, unless she can actually establish a diagnosis of hepatitis B or HIV, the employee is not entitled to the follow-up treatment recommended by her doctors. We believe that providing reasonable treatment to prevent or reduce the probability of serious consequences is reasonably part of what the legislature contemplated under the concept of reasonable and necessary medical treatment. It would be an absurd result to require an injured employee to actually contract a serious or even life-threatening disease before being allowed treatment reasonably consequent to his or her injury. The treatment here in question was not directed against a diagnosed condition or disease but was intended in part to prevent that condition or disease from arising consequent to the work injury.
Testing for and protection against hepatitis B or HIV within standard medical protocol is, in our opinion, little different from testing for and protection against, say, tetanus within the standard medical protocol for treating puncture woundsBlittle different, after all, from testing for and treatment against any number of unnamed bacteria against which antibiotics are prescribed within the standard medical protocol for post-surgical care. What is important here is not the potential diagnosis but the fact that the treatment at issue is incidental to and necessary as a result of a work injury.
Finally, the insurer argues that the employee=s proper remedy in this case is to request reimbursement from the employer under OSHA regulations for testing and treatment related to HIV and/or hepatitis B exposure. Even if this court had, as we do not have, jurisdiction to address treatment and testing under OSHA regulations, and even if those regulations might provide for testing and treatment under certain circumstances, we see no basis in this case to conclude that OSHA supplants workers= compensation coverage for compensable injuries of this sort. Therefore, we will not address this argument.
Because the insurer does not dispute the reasonableness and necessity of the treatment, and because the judge reasonably concluded that that treatment was causally related to the employee=s work injury, the compensation judge=s award of recommended medical treatment and outstanding medical expenses in the amount of $508.28 is affirmed. See Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d at 59, 37 W.C.D. at 239 (Minn. 1984).