JEFFREY D. WILKENING, Employee/Appellant, v. HENNEPIN COUNTY MED. CTR., SELF-INSURED, Employer, and FAIRVIEW HEALTH SERVS., BLUE CROSS BLUE SHIELD OF MINN., HEALTHPARTNERS, INC., and HARTFORD LIFE,  Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 15, 2008

 

No. WC08-138

 

HEADNOTES

 

CAUSATION  - OCCUPATIONAL DISEASE.  Substantial evidence, including expert medical opinion, medical records, and lay testimony, supported the compensation judge=s finding that the preponderance of the evidence failed to establish that the employee sustained an occupational disease  in the nature of hepatitis related to his work as an emergency medical technician for the employer.

 

Affirmed.

 

Determined by: Stofferahn, J., Wilson, J., and Rykken, J.

Compensation Judge: Kathleen Behounek

 

Attorneys: Thomas L. Cummings and Matthew P. Bandt, Jardine, Logan & O=Brien, Lake Elmo, MN, for the Appellant.  Michael O. Freeman and Mary L. Egan, Hennepin County Attorney=s Office, Minneapolis, MN, for the Respondent.

 

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employee appeals from the compensation judge=s finding that the employee did not contract hepatitis B as a result of his employment.  We affirm.

 

BACKGROUND

 

The employee began working for  Hennepin County Medical Center in 1986.  He was hired as an EMD/EMT (emergency medical dispatcher/emergency medical technician).  His primary duties were those of an EMD, which involved working in the employer=s dispatch center receiving emergency calls and dispatching ambulances.  During the initial years of his employment he occasionally worked as an EMT on an as-needed basis when ambulances were short staffed, driving an ambulance and assisting with the administration of emergency medical and life support.  He also went along on some shifts as a Athird person@ in order to meet the employer=s recommendation that its EMD/EMT dispatchers keep their EMT skills in practice by working 100 hours per year as an EMT.  During active work as an EMT, the employee was regularly exposed to patient blood and bodily fluids, but he had no such exposure while working as a dispatcher.

 

The employee also held a part-time job with Allina Health Systems as an EMT from 1991 to 2004.  This job primarily involved transporting discharged patients from Allina=s hospital to residences and nursing homes.  The employee testified that the work for Allina did not regularly involve exposure to blood or bodily fluids.  Allina was not a party in the present case.

 

Until the mid-1990s, the employer conducted biannual physical examinations of its EMTs and paramedics at its Employee Health Service.  The examination included blood testing for the hepatitis B virus.  The employee=s blood testing was negative for hepatitis B through his last test performed there on March 18, 1994.

 

The employee subsequently underwent blood tests in February and April 1997, which showed blood levels of ALT and AST enzymes which were slightly elevated, but within the normal range.  During cross-examination testimony on February 7, 2007, Dr. Walid Mikhail, the employee=s treating doctor, testified that these results suggested that the employee did not have an acute hepatitis B through at least April 1997.

 

In January 2000, the employee=s spouse became acutely jaundiced.  Lab testing showed that she had contracted acute hepatitis B.  Her physician suggested that the employee also be tested.  Initial screening testing at the Hennepin County Medical Center on January 25, 2000, showed that the employee had reactive hepatitis B surface antigens and antibodies.  He was referred to Dr. Craig J. Peine at the Hennepin Faculty Associates for further evaluation and treatment.

 

On January 31, 2000, the employee reported the positive test for hepatitis B to the  employer=s Employee Health Services, but he did not file a first report of injury claiming this condition was due to a work exposure.

 

Dr. Peine saw the employee on February 3, 2000.  Dr. Peine noted that the employee had not shown any symptoms, but had been tested because his spouse had recently tested positive for acute hepatitis B.  He reviewed the employee=s prior medical records and inquired about various non-occupational risk factors which might be associated with acquiring hepatitis B.  The employee denied all the risk factors, and Dr. Peine concluded that his occupation was the only apparent risk factor present.  He diagnosed probable chronic hepatitis B, which he concluded would most likely have been acquired some time after November 1987.  Further blood tests were ordered.

 

After the appointment with Dr. Peine, the employee told Martin Van Buren, then a supervisor in the employer=s emergency services department, that he believed he had been exposed to hepatitis B on the job.  Mr. Van Buren advised him of the process he should follow to report his exposure, which involved submitting an exposure form through Employee Health Services.  The employee testified that he tried to file an injury report with Geri Peterson, the director of the employer=s emergency medical services department, but that she refused to accept it. 

 

The records of Employee Health Services note a telephone conversation on February 8, 2000, in which the employee reported that Dr. Peine had diagnosed possible chronic hepatitis B, and that further tests had been ordered.  The chart notation for that date further stated that the employee Awill continue to work as a dispatcher with no PT [patient] contact.  Geri Peterson is aware of the situation.@

 

On March 10, 2000, the employee returned to Dr. Peine, who reviewed the results of the additional blood tests.  Dr. Peine considered the results to be consistent with chronic hepatitis B, but also thought it possible that the employee could have resolving acute hepatitis B.  He recommended that the employee repeat the comprehensive blood panel in three months to see if there was any change in the employee=s elevated liver enzyme levels and hepatitis B serology.

 

By June 2000, it had become clear that the employee had chronic, rather than acute, hepatitis B.  Dr. Peine eventually recommended that the employee undergo a treatment program known as prednisone prime to stimulate his immune system before he started lamivudine therapy, a relatively new technique, which the doctor hoped might result in eradication of the chronic viral infection.  The employee apparently began the lamivudine therapy in October 2000.

 

The employee continued treatment with lamivudine through June 2001, when it was discontinued as unsuccessful.  The employee did not return to Dr. Peine until March 2003.  Dr. Peine noted that the employee remained asymptomatic.  The employee had developed antibodies to the hepatitis B surface antigen, and Dr. Peine hoped that the employee might still continue this immunologic process.

 

At all times after the diagnosis of hepatitis B in February 2000, the employee continued to work as a dispatcher for the employer without losing time from work until August 2004, when he was hospitalized with congestive heart failure and suspected pulmonary hypertension.  He then continued on light duty until he went on medical leave on August 25, 2004, his last date of employment.

 

On September 27, 2004, the employee began seeing Dr. Walid Mikhail as his primary physician for the treatment of his pulmonary hypertension condition.  The medical exhibits contain lengthy records of further treatment for pulmonary hypertension, which the employee later claimed was a consequence of his hepatitis B condition and rendered him permanently and totally disabled^[1].

 

Because of the effects of his pulmonary hypertension, the employee sought disability benefits from the Public Employees= Retirement Association (PERA).  Dr. David A. Berman performed two independent medical examinations of the employee for PERA, on December 17, 2004, and March 22, 2006.  Dr. Berman attributed the employee=s disability to his pulmonary hypertension and concluded that he was disabled from his work as an EMT dispatcher since July 2004 because of the physical and mental stress of that work.  Dr. Berman further noted that the employee=s persistent hepatitis B seemed to be in remission without evidence for severe liver disease or portal hypertension.

 

On March 2, 2005, the employee returned to Dr. Mikhail to discuss his pulmonary hypertension and chronic hepatitis B.  Dr. Mikhail offered the opinion that, because of an absence of other risk factors, the employee=s exposure to hepatitis B must have been contracted through his work as an EMT / EMD.  Because medical records showed the employee to be negative for hepatitis B surface antigen and surface antibodies in 1987, the doctor opined that the disease was contracted some time afterwards.

 

On March 22, 2005, the employee brought a handwritten first report of injury to his employer.  The first report was then transcribed by Employee Health Services and filed with DOLI.

On April 18, 2005, the employee filed a claim petition seeking workers= compensation benefits.

 

Dr. Ronald Soltis performed a medical record review and issued two reports dated July 6, 2005, and June 2, 2006.  Dr. Soltis agreed that, in the absence of other risk factors, the employee=s work as an EMT would be the likely cause of his contraction of hepatitis B.  In light of the negative test for hepatitis in November 1987, the doctor stated that employee would likely have contracted hepatitis some time between 1987 and 2000.

 

The employee=s claim petition came on for hearing before a compensation judge of the Office of Administrative Hearings on January 12, 2007, February 7, 2007, March 13, 2007, and May 24, 2007.  At the hearing on February 7, 2007, the employee offered the expert medical testimony of Dr. Mikhail.  In direct testimony, Dr. Mikhail opined that the specific period of time during which the employee must have contracted hepatitis B was between 1996, when blood tests showed him as apparently negative for the disease, and 2000, when he first showed positive blood testing.  On cross-examination, Dr. Mikhail agreed that two lab reports showing only a modest elevation in the employee=s AST levels were evidence that he had not yet become infected with hepatitis B.  The doctor then offered a much more limited time frame in which he believed that the employee=s infection had occurred:

 

Q.        Just so I=m clear, would you agree that at least through April 2nd of 1997, based on these first two lab reports I showed you, that Mr. Wilkening did not have - - was not infected with the hepatitis B virus?

 

A.        That=s correct.  I would estimate his infection to be right around the year 2000 based on when his significant other contracted hepatitis B.  So if we take that date and go back about six weeks, that would be my medical opinion of when he was infected, and then he subsequently transferred it to his significant other.

 

Q.        I see.  And his actual - - I think the date of his lab test was - -  the abnormal lab test was January the 25th of 2000.  Does that sound right?

 

A.        Yes, it does.

 

Q.        Okay.  And so, in your opinion, has the likely exposure occurred probably six weeks before that?

 

A.        About six to eight weeks before that.

 

T. 63-64.  This was the first time that Dr. Mikhail had given such a circumscribed and specific time frame for the employee=s contraction of hepatitis B.

 

At hearing on March 13, 2007, the employer offered testimony from Douglas Gesme, the assistant director of the employer=s emergency services department.  Mr. Gesme testified that, beginning in July 1999, the employer had maintained a database of  the daily schedules of its EMTs and EMDs.  After reviewing the employee=s daily schedule records, Mr. Gesme had determined that the employee had worked only as a dispatcher for the period from July 1999, through mid-January 2000, with no time spent in ambulance work as an EMT.

 

The employee objected to this testimony.  The compensation judge ordered that the employer produce the scheduling records so that the employee could view and respond to that material, and granted the employee=s request to permit him to submit a follow-up report from Dr. Mikhail.

 

In a post-hearing report, Dr. Mikhail wrote that, even if the employee did not go on any ambulance runs from July 1999 to January 2000, it was still his opinion that the employee was most likely exposed to the virus during ambulance runs at some other time while working at Hennepin County Medical Center.  He stated that he had meant to say that the employee=s spouse, rather than the employee himself, would have been infected within six to eight weeks of the date of her positive test.  The employee, on the other hand, was a carrier without physical symptoms, so that it was not possible to say when he had become infected, except that it would have been subsequent to having tested negative for hepatitis B in 1996.

 

In a post-hearing deposition, Dr. Mikhail testified that, when he gave his trial testimony, he Adid not take the time to think enough or perhaps I was a little more emotional at that testimony."  He stated that his trial testimony had been based on the assumption that the employee was going on ambulance runs right up until his diagnosis and that he had simply assumed that Mr. Wilkening's spouse would have contracted Hepatitis B around the same time the employee did, as a result of their sexual relationship.  However, he had now concluded that, since it was difficult to quantify the amount of sexual exposure that would typically result in transferring the Hepatitis B virus, because the employee was a carrier without symptoms, and because the employee had not been exposed to blood or bodily fluids for at least six months, the hepatitis exposure must have been more than six months earlier.  He still believed that the absence of other known risk factors indicated that the employee had contracted hepatitis through his employment.

 

In her findings and order, the compensation judge adopted Dr. Mikhail=s initial testimony that the employee must have contracted hepatitis in a period six to eight weeks before January 2000.  The compensation judge found that the employee did not work as an EMT and was not exposed to blood or bodily fluids in his employment between July 1999 and January 25, 2000.  As a result, she determined that Athe preponderance of the evidence failed to establish that the employee sustained a work related occupational disease or injury, in the nature of hepatitis B.@  The employee appeals.

 

DECISION

 

1. Causation

 

The employee=s case relied heavily on Minn. Stat. ' 176.011, subd. 15(b), which provides, in relevant part, that

 

[i]f immediately preceding the date of disablement . . . , any individual who by nature of their position provides emergency medical care, or an employee who was employed as a[n] . . . emergency medical technician . . . ; and who contracts an infectious or communicable disease to which the employee was exposed in the course of employment outside of a hospital, then the disease is presumptively an occupational disease and shall be presumed to have been due to the nature of the employment and the presumption may be rebutted by substantial factors brought by the employer or insured.  Any substantial factors which shall be used to rebut this presumption and which are known to the employer and insurer at the time of the denial of liability shall be communicated to the employee on the denial of liability.

 

Relying on Dr. Mikhail=s hearing testimony, the compensation judge found that the employee would have contracted the hepatitis B virus about six to eight weeks before his spouse tested positive for the disease.  The compensation judge further found that the employee did not work as an EMT in ambulance runs between July 1999 and January 25, 2000.  She based this finding on the testimony of  Douglas Gesme, the assistant director of the employer=s emergency services department, and on the employer=s daily scheduling records for that period.  Taking these two findings together, the judge concluded that the self-insured employer had rebutted the statutory presumption.  The employee argues that the compensation judge erred in reaching these two factual findings.

 

The employee first argues that the compensation judge should not have considered the employer=s scheduling records or the testimony of Douglas Gesme.  The employee points to that portion of Minn. Stat. ' 176.011, subd. 15(b), which provides that, at the time liability is denied, the employer and insurer must disclose A. . . the factors which shall be used to rebut this presumption and which are known to the employer and insurer at the time of the denial of liability.@  The employee contends that, since the self-insured employer did not disclose an intention to rebut the presumption by means of the scheduling records until Mr. Gesme testified on March 13, 2007, the testimony and records should not have been admitted in evidence, and the compensation judge erred as a matter of law in relying on the scheduling records.

 

We disagree.  The compensation judge could reasonably have concluded that the employer was unaware of the potential significance of the scheduling evidence to rebut the presumption, until after Dr. Mikhail=s testimony first identified the date of the employee=s infection to a period which was covered by the records of  the daily schedules.  Since the potential significance of this evidence was not known to the self-insured employer at the time of the denial of liability, the judge was entitled to conclude that the failure to disclose these records at that time did not render them inadmissable.

 

Generally, a compensation judge has broad discretion regarding the admissibility of evidence.  Minn. Stat. ' 176.411, subd. 1; Ziehl v. Vreeman Constr. Co., slip op. (W.C.C.A. Oct. 15, 1991); Kaniewski v. Wal-Mart Stores, Inc, slip op. (W.C.C.A. Oct. 7, 2002).  It is well settled that "[a] compensation judge is given broad latitude in conducting a hearing and in the admission of evidence in order to assure that justice and fairness prevail."  Murphy v. Keebler Co., 45 W.C.D. 356, 358 (W.C.C.A. 1991).

 

The employee argues, however, that, even if the admission of Mr. Gesme=s testimony and the daily schedule records was not barred by nondisclosure at the time the employer denied liability, that evidence was hearsay that was too unreliable to warrant its consideration by the compensation.  Again, we disagree.  As to Mr. Gesme=s hearsay testimony regarding the contents of the scheduling records, any defect in considering that testimony was mitigated by the subsequent introduction of the  records on which that testimony was based.  The records themselves were kept in the regular course of business to permit supervisors to manage the activities of their staff and, although they were not specifically authenticated by the duty supervisors who were charged with entering the data, Mr. Gesme, who had managerial oversight over the staff charged with the keeping of the records, testified that the records were very accurate.

 

The employee raises only two specific objections to the accuracy of the scheduling records.  First, he relies on his own testimony that he did not believe he ever went six months without performing at least a few hours in EMT duty in an ambulance.  Second, he points to Mr. Gesme=s concession on cross-examination that it was Apossible@ that some errors could be present in the scheduling data.  These points really go to the weight of the evidence rather than its admissibility, and to witness credibility.  Both weight and credibility are matters entrusted to the finder of fact, and ones which this court will not disturb absent clear error.

 

The employee next argues that the compensation judge should not have relied upon Dr. Mikhail=s hearing testimony, because the doctor later changed his opinion about the likely dates during which the employee contracted hepatitis B, after being apprised that the employee had not been exposed at work to blood or bodily fluids during the period identified in his initial testimony. The doctor gave several explanations for his changed opinion and why it differed from his hearing testimony.  In his post-hearing report dated October 12, 2007, he returned to the view that the employee=s exposure could only be said to have occurred some time between 1996 and 2000.  He asserted that, when he testified at the hearing that exposure must have occurred within six weeks of the date the employee=s wife first tested positive, he actually meant her exposure to the virus, rather than the employee=s.  In deposition testimony taken on December 12, 2007, Dr. Mikhail testified that his hearing testimony had been based on the assumption that the employee had been going on ambulance runs as an EMT through the date he was diagnosed with hepatitis B.  He stated that he had been nervous during the hearing and simply had assumed that the employee had transmitted his hepatitis B infection to his wife through their sexual relationship shortly after the employee himself had contracted it.  However, in light of the employee=s lack of exposure to blood and bodily fluids for several months prior to his wife=s contraction of the disease, he now believed that the employee could have been a carrier of chronic hepatitis B for some time before passing it on to his wife.

 

Dr. Mikhail offered conflicting opinions concerning the timing of the employee=s contraction of hepatitis B.  It is the compensation judge=s responsibility, as trier of fact, to resolve conflicts in expert testimony and opinion.  Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985).  A compensation judge is free to accept a portion of an expert=s opinion while rejecting other portions.  Johnson v. L.S. Black Constr. Co., slip op. (W.C.C.A. Aug 18, 1994), citing City of Minnetonka v. Carlson, 298 N.W.2d 763, 767.  The compensation judge was not required to adopt Dr. Mikhail=s subsequent opinion over his hearing testimony.  We note, among other factors, that the employee=s treating physicians warned him that his chronic hepatitis B was extremely infectious.  The compensation judge could reasonably conclude that it was unlikely that the employee was infected for six months before passing the infection on to his wife.  While the opposite conclusion is also possible on the evidence in this case, we cannot conclude that the compensation judge=s adoption of Dr. Mikhail=s hearing testimony as to the timing of the employee=s contraction of hepatitis was clearly unreasonable.

 

The employee argues that, in any event, the presumption cannot be rebutted except through positive evidence for the presence of risk factors outside of the employment setting, something that was not shown in this case.  The compensation judge referred to the employer=s evidence as having rebutted the presumption, and we have followed that phrasing in this opinion.  However, we note that, in showing that the employee did not work as an EMT during the period that the contraction of hepatitis B was found to have occurred, the employer=s evidence can also be said to have gone to the question of the applicability of the presumption, as much as to its rebuttal.

 

The employee relied primarily on the presumption to prove his case and offered little in the way of specific evidence of a work exposure to the disease.  He offered no evidence at all of any opportunity for exposure during the period during which Dr. Mikhail had testified that the disease was contracted.  Having adopted the expert opinion expressed in Dr. Mikhail=s hearing testimony, the compensation judge found that, in the absence of the presumption, the preponderance of the evidence failed to show that the employee was exposed to hepatitis B as a result of his work activities.

 

We cannot say that the compensation judge=s findings on causation were clearly erroneous and we must affirm.

 

2. Other Issues

 

The employee=s claim at the hearings included claims for benefits associated with pulmonary hypertension, depression, and sexual dysfunction, which he claimed were caused by his hepatitis B infection.  Because she found the employee=s contraction of hepatitis B to be  unrelated to his employment, the compensation judge did not reach the issue of whether the hepatitis B was a substantial contributing cause of these other conditions.  Also, after determining the issue of causation, the compensation judge also found that the employee had failed to meet the statutory requirements with respect to notice and the timely initiation of an action with respect to his claims arising from his hepatitis B condition.  The employee has appealed from the findings regarding untimely notice and the statute of limitations, and further contends that, if the causation findings are reversed, a remand will be necessary to determine whether there was a causal connection between the hepatitis B and the other claimed conditions, and whether these other conditions warranted a new and separate notice and statute of limitations period.

 

Our affirmance of the compensation judge=s finding that the employee failed to establish that his contraction of hepatitis B was causally related to his employment with the employer renders these other issues moot.  Accordingly, we have not considered them in this opinion.