Opinion
CLAIM NO. E700350
OPINION FILED APRIL 13, 2000
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by FREDERICK (RICK) SPENCER, Attorney at Law, Mountain Home, Arkansas.
Respondent represented by WALTER MURRAY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed
OPINION AND ORDER
Respondent appealed the Administrative Law Judge's opinion that claimant suffered a compensable injury when she contracted a skin condition. Respondent argued that claimant failed to satisfy her burden of proof. Claimant argued that the burden of proof is satisfied and that the statute limiting occupational diseases to those occurring in a hospital or sanatorium is unconstitutional. She argued the burden of proof should be a preponderance of the evidence and not clear and convincing evidence.
Claimant's testimony was that she never had skin problems or allergy problems prior to the contraction of the condition at issue now. She began experiencing symptoms after she was assigned to an elderly couple's home. Her testimony was that this couple maintained a very unsanitary and unhygienic lifestyle, and that the husband suffered from a skin condition which required medicated shampoo and that his legs were "black." She also stated the wife was afraid to use the shower and that neither bathed regularly, even at her urging. Claimant testified that she began developing redness, swelling and bumps on her arms and legs and that after two months, when her husband and apparently one of her children began developing symptoms, she was seen by Dr. Tucker on December 24, 1996, at the request of claimant's employer. She was treated for a skin infection, and given medicine which she used to treat herself and her husband. When her lesions were finally tested on January 1997, the culture was negative for infection. Claimant testified that the patient/client was never cultured for infection.
Dr. Tucker noted on December 24, 1996 when he first saw Claimant that she thought she got the rash from a client at work. His diagnosis at that time was a "staph infection, contagious." On December 31, 1996, Dr. Tucker stated that she was much better and that he felt that she did get the infection from a patient: "I am sure that this patient got this infection from some patient (client) she was caring for."
On March 6, 1997, Dr. Tucker wrote a note stating "this patient had a skin infection 12-24-96. It is my opinion that this patient did contract this infection from a patient-client that she was caring for." Dr. Tucker also completed a form AR-3 stating "patient/care giver came in contact with a client that had skin rash and skin lesions. She became infected (skin)."
Dr. Tucker wrote another note, dated December 31, 1997, stating: "I have reviewed my file on this patient and in retrospect I am not sure how this patient contracted this rash. By history I had thought that she did get this from a client. However, I cannot say for sure that that is the case. In summary I am unable to determined the etiology of her skin problem."
Dr. Tucker wrote yet another note on January 20, 1999, stating that "It is my opinion, stated within a reasonable degree of medical probability, that given the history of caring for a patient with a skin disorder is true, that the skin disorder she had and for which I treated in December of 1996 was causally related to her duties while employed by White River Area Agency on Aging. I must rely upon my patients' history given as true without any other evidence."
Dr. Tucker in his deposition on February 15, 1999, stated that he did not culture claimant's lesions when he first saw her and that he could not tell for sure what infection she had. He also stated that he had no way of knowing how she contracted the infection, except based upon the history she gave him. He stated that based upon the history that claimant gave him and based upon his examination of her he cannot say whether her problems came from a particular patient of hers. Dr. Tucker stated that the general public, if they come in contact with a person infected with staph, is subjected to the risk of staph infection. The general public is not "in general" subject to staph infections "unless there is an area where bacteria has been. . . . A lot of people do have it on their skin, outside, you know, on their skin." He stated that it would be contracted through an opening in the skin, a lesion or abrasion. Dr. Tucker stated that he could not testify with any degree of medical certainty that the infection, if she had an infection, was the result of contact with a client, absent the history he took from claimant. Dr. Tucker indicated that one reason he was unable to say that claimant contracted the infection from the patient/client was because her husband also had the infection when claimant saw the doctor on December 24, 1996, and because he had no way of knowing who had the infection first.
Dr. Bozeman wrote a note, dated December 26, 1996, regarding claimant's patient/client which stated that he had "chronic stasis dermatitis lower legs — non contagious." (Emphasis in original.)
Dorland's Medical Dictionary, 27th Edition, defines "stasis dermatitis" as "an often chronic, usually eczematous dermatitis (inflammation of the skin), which initially involves the inner aspect of the lower leg just above the internal malleolus and which later may involve the entire lower leg or portions thereof, characterized by edema, pigmentation, and commonly ulceration; it is due to venous insufficiency."
Arkansas Code Annotated Section 11-9-601 applies to the current claim. The Code defines occupational disease in Section 11-9-601 (e):
(1)(A)"Occupational disease", as used in this chapter, unless the context otherwise requires, means any disease that results in disability or death and arises out of and in the course of the occupation or employment of the employee, or naturally follows or unavoidably results from an injury as that term is defined in this chapter.
(B) However, a causal connection between the occupation or employment and the occupational disease must be established by clear and convincing evidence.
(2) No compensation shall be payable for any contagious or infectious disease unless contracted in the course of employment in, or immediate connection with, a hospital or sanatorium in which persons suffering from that disease are cared for or treated.
There is no question that claimant suffered a disease which caused her to be temporarily restricted from working while she was treated and recovered. The issues in this case are whether claimant proved by clear and convincing evidence that the disease arose "out of and in the course of the occupation or employment of the employee," and whether claimant is barred from recovery by Ark. Code Ann Section 11-9-601(e)(2).
Claimant testified that she believed that her infection was caused by her contact with a particular patient/client couple who suffered skin problems and very poor hygiene. There is no evidence to show exactly what type of infection claimant suffered, although her doctor considered it to be a staph infection in his notes. At the deposition he stated that all he could say about the infection, identified by her high white blood cell count, was that she had cellulitis, which is an infection of the tissues, and a skin rash and that the lesions were infected and pustular. When he performed a culture, it was negative for any infection, indicating to Dr.,. Tucker that she was no longer infected. The patient/client from whom claimant believes her infection to have come was never cultured for infection and was determined to be non-infectious by a doctor.
Under the clear and convincing burden of proof, claimant has failed to show that her rash was contracted from her patient/client. "Clear and convincing evidence is evidence that is so clear, direct, and convincing as to enable a fact finder to come to a clear conviction, without hesitation, of the truth of the facts related." Tibbett v. Agricultural Productivity Co., Full Commission Opinion Filed March 11, 1998 (WCC NO. E510708) ( citing Taylor v. Hill, 10 Ark. App. 45, 661 S.W.2d 412 (1983)). The mere possibility that the claimant's employment caused or contributed to his condition is not sufficient to support an award of compensation. Instead, the evidence must establish that the disabling condition is causally related to the employment. Speculation and conjecture can never be substituted for credible evidence, no matter how plausible. Owens v. Robbins, Inc., Full Commission Opinion Filed February 27, 1997 (WCC No. E310171) ( citing Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 151 [ 575 S.W.2d 155] (1980).
In Dodd v. Colson Caster Corporation, Full Commission Opinion Filed March 24, 1997 (WCC No. E402142), the claimant developed contact dermatitis due to exposure to certain chemicals at work. The claimant suffered several outbreaks. The claimant failed to prove by clear and convincing evidence that his outbreaks which occurred on or about June 22, 1994 and July 8, 1994 were causally related to his work environment, because there was no evidence in the record that claimant was exposed to any type of oil, chemical, paint or grease prior to June 22, 1994, and because the claimant's dermatologist, Dr. Rosenberg, opined that the outbreak at that particular point in time was caused by an allergic reaction to a plant and not to claimant's work environment. The claimant also failed to meet his burden of proof as to another episode about which his dermatologist stated that it was "reasonable to assume" a causal connection with regard to this outbreak. However, the Commission held that an assumption is not the equivalent of a "reasonable degree of medical certainty," and that the dermatologist statement did not rise to the requisite level of a medical opinion addressing compensability stated within a reasonable degree of medical certainty. Ark. Code Ann. § 11-9-102 (6).
In Bridges v. Georgia-Pacific Corporation, Full Commission Opinion Filed April 21, 1997 (WCC No. E504125), the claimant failed to meet his burden of proof where the most compelling evidence claimant presented is a medical record from his doctor which states: "possible contribution from industrial bronchitis" and "suspect that his occupational exposure may be aggravating underlying allergy . . ." These reports were equivocal. Terminology such as "possible" and "suspect" do not rise to the level of clear and convincing evidence. The reports did not constitute proof so clear, direct, weighty and convincing as to enable the Commission to render an opinion in claimant's favor without hesitation. It was simply too speculative to find a causal connection between the claimant's condition and his employment.
In Skillern v. Mid-America Distillations, Inc., Full Commission Opinion Filed May 13, 1997 (WCC No. E600554), the claimant failed to meet his burden of proof by clear and convincing evidence that his occupational disease was causally related to his work. The claimant developed a reaction for which he was tested for allergies. He had reactions to many substances but was not tested for the substances to which he was exposed at work. Many of the substances he reacted to in the test were found in the claimant's daily living environment. Again, absent from the patch testing was any chemical or substance from the claimant's work environment. No evidence, let alone clear and convincing evidence, was introduced to prove that the claimant's skin disease was causally connected to his work environment. In addition, it is interesting to note that although the claimant had not worked for respondent for over two years, the claimant continued to complain of persistent allergic symptoms. If the claimant was no longer exposed to the conditions at work, then claimant's condition should have improved. The claimant's allergies, if anything, were ordinary diseases of life as they resulted from his everyday living environment and uncompensable under Ark. Code Ann. § 11-9-601 (e)(3). The claimant relied upon a doctor's correspondence which stated "the diagnosis, dermatitis, could be caused by a substance that he was coming in contact with at work." This statement was nothing more than speculation and conjecture. Conjecture and speculation, even if plausible, cannot take the place of proof. Ark. Dept. of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1970)[(1979)]. Arkansas Methodist Hospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (1993).
In Skillern, the only evidence in the record which supported the claimant's allegations that his work environment caused his skin disease was the claimant's testimony and belief as to the causal connection. Obviously, it was this belief upon which the doctor relied. No matter how sincere a claimant's beliefs are that medical problems are related to a compensable injury, such beliefs are not sufficient to meet a claimant's burden of proof.
There was no comparative testing done to relate claimant's infection to the skin problems suffered by her patient/client. Claimant was not tested until her infection was gone. The patient/client was never tested, although a physician diagnosed him with chronic stasis dermatitis and stated that he was not contagious. Furthermore, Dr. Tucker's opinions are all based upon claimant's history and nothing else. He stated that all he had to base his opinion on was claimant's history and that after reviewing the case, he felt that he could not say that claimant contracted the infection from her employment. Even if we looked to the statements he made in his notes that the infection did come from her employment, the basis for that opinion is her history. This is insufficient to satisfy the requirements of clear and convincing evidence. In fact, this is insufficient to satisfy the requirements of a preponderance of the evidence. The only evidence of causal connection is claimant's belief and that she worked and had an infection.
Furthermore, there was evidence that infections in general and even staph infections are risks to which the general public is exposed, an no evidence that claimant was in a situation peculiar to her employment. Thus her claim is barred under Ark. Code Ann. § 11-9-601(e)(3): "No compensation shall be payable for any ordinary disease of life to which the general public is exposed."
Claimant argued that the bar to recovery in Ark. Code Ann. § 11-9-601 (e)(2) that "no compensation shall be payable for any contagious or infectious disease unless contracted in the course of employment in, or immediate connection with, a hospital or sanatorium in which persons suffering from that disease are cared for or treated" is unconstitutional. However, claimant's claim failed before analysis was required under this section, and it is not necessary to address the constitutional arguments. Likewise, it is not necessary to address claimant's arguments that the differences in standards of proof are unconstitutional because her claim failed under either burden of proof. However, it appears clear that when considering a gradual onset injury, occupation disease, as opposed to a specific injury, it would be necessary to require a higher standard of proof to avoid abuse where the variety of causes of and opportunities to contract occupational diseases would require some type of expert opinion, backed by a reasonable explanation.
Claimant has failed to provide a record sufficient to prove her case. She has failed to meet her burden of proof. There is no evidence from which we can firmly state that her condition arose out of any particular circumstance. Any determination that claimant was infected while at work must be speculation and therefore is impermissible. We reverse the decision of the Administrative Law Judge and dismiss this claim.
IT IS SO ORDERED.
__________________________ MIKE WILSON, Commissioner
CONCURRING OPINION
I concur in the principal opinion's conclusion that the claimant has failed to establish by clear and convincing evidence a causal connection between her employment and the disease at issue. I also concur that, because the claimant failed to establish the necessary causal connection, we need not reach the respondents' alternative grounds for denying liability in this case, i.e., that the claimant cannot show that her disease was contracted in the course of employment in or immediate connection with, a hospital or sanatarium, as required by Ark. Code Ann. § 11-9-601(e)(2). Finally, I note that the claimant raised her constitutional challenge to Ark. Code Ann. § 11-9-601(e)(2) for the first time in a post-hearing brief. I concur that we should not address the claimant's constitutional challenge to Ark. Code Ann. § 11-9-601(e)(2), because we have not reached the issue as to whether Ark. Code Ann. § 11-9-601(e)(2) bars the claimant's claim. However, I also point out that the claimant's constitutional challenge, which was raised for the first time in a post-hearing brief, was not timely raised. See, Thomas E. Trader v. Single Source Transportation, Full Workers' Compensation Commission, Op. filed Feb. 12, 1999 (Claim No. E507484).
___________________________
DISSENTING OPINION
I must respectfully dissent from the majority opinion finding that claimant failed to prove that her infection was a compensable work related injury. Based upon my de novo review of the record I would affirm the opinion of the Administrative Law Judge.
Claimant is a certified nursing assistant employed by respondent to provide home health care services to respondent's patient-clients. In the fall of 1997 claimant was assigned to provide care to the sick and elderly Cunningham couple. Mr. Cunningham suffered from psoriasis. One of claimant's duties was to shampoo Mr. Cunningham with medicated shampoo. According to claimant the Cunningham's living conditions were squalid. Part of the care provided by claimant included cleaning to aid in fighting infection.
Shortly after starting to work with the Cunninghams claimant noticed symptoms of an infection in her arms. Claimant's disease grew in her arms until her elbows became badly swollen and inflamed and she also developed boils. The infection continued to spread which prompted her to seek treatment on December 24, 1996. On that date claimant was seen by Dr. Charles Tucker who was selected by respondent. Dr. Tucker observed lesions and an elevated white blood cell count. Dr. Tucker concluded that claimant had an infection. Claimant was treated for her infection with antibiotics which proved to be successful. Dr. Tucker took a culture from claimant on January 20th which was negative and accordingly released claimant to return to work. Claimant seeks TTD benefits for the period from December 24th, the date of her first diagnosis, until January 20th, the date she was found to be clear of infection and released to return to work.
Claimant's condition constitutes an occupational disease and as such her claim is subject to the standard for occupational diseases set forth in A.C.A. § 11-9-601. An occupational disease is any disease that results in disability or death and arises out of and in the course of the occupation or employment of the injured worker. An employer is not liable for any compensation for an occupational disease unless the disease is due to the nature of an employment in which the hazards of the disease actually exist and are characteristic thereof and peculiar to the trade, occupation, process, or employment and is actually incurred in her employment. A causal connection between the occupation or employment and the occupational disease must be established by clear and convincing evidence. Clear and convincing evidence is that degree of proof that will produce in the trier of fact a firm conviction as to the allegation sought to be established. Maxwell v. Carl Bierbaum, Inc., 48 Ark. App. 159, 893 S.W.2d 346(1995).
The majority has found that claimant failed to prove a causal connection between her work and the resultant infection by clear and convincing evidence. I disagree and would affirm the award on this issue as well. In my opinion the lack of an alternative explanation for claimant's infection is an important element to consider on this issue. I also find it important that when respondent referred claimant to Dr. Charles Tucker for treatment of her infection respondent assured his staff that claimant had a worker's compensation claim, the only basis upon which Dr. Tucker would see claimant. Dr. Tucker testified that claimant had an infection of the tissues, a skin rash and infected lesions that were pustular. Dr. Tucker made it clear that any conclusion about the cause of the infection would necessarily turn on the claimant's history. That history clearly ties claimant's injury to her employment.
The majority has denied this claim on the basis of a single hand written note which appears in the record without supporting testimony or explanation. That note indicates that A.G. Cunningham had, among other things, a non-contagious form of dermatitis on his lower legs. It is important that this slip of paper does not mention the presence of psoriasis, or diabetes and it makes no statement regarding squalid living conditions. This note is dated after the onset of claimant's infection and her request for medical treatment. The absence from the record of any background or corroborative evidence or testimony regarding this brief note leaves us to speculate as to its genesis and import. It is well settled that speculation can not take the place of proof.
The majority has also found that the type of injury suffered by claimant was a risk to which the general public is exposed, not peculiar to her employment and therefore not compensable under A.C.A. § 11-9-601(e)(3). The fact that the general public may contract a disease, is not controlling; the test of compensability is whether the nature of employment exposes the worker to a greater risk of that disease than the risk experienced by the general public or workers in other employments.Osmose Wood Preserving v. Jones, 40 Ark. App. 190, 843 S.W.2d 875 (1992); Sanyo Mfg. Corp. v. Leisure, 12 Ark. App. 274, 675 S.W.2d 841 (1984). In this instance I can not agree with the conclusion of the majority that claimant's work as a health care provider did not put her at an increased risk of contracting an infection.
Respondent also argues that this claim should be subject to A.C.A. § 11-9-601(e)(2) "No compensation shall be payable for any contagious or infectious disease unless contracted in the course of employment in, or immediate connection with, a hospital or sanatorium in which persons suffering from that disease are cared for or treated". Claimant argues that the application of this statute would be a violation of her constitutional right to due process as expressed in Golden v. Westark Community College, 333 Ark. 41, 969 S.W.2d 154 (1998). The opinion below is silent on this issue. I find claimant's argument convincing and would agree.
Because the record contains substantial evidence that claimant contracted her infection on the job and no substantive evidence exists to the contrary, it is my firm conviction that claimant contracted her infection in the course of her employment with respondent. Accordingly, I would affirm the opinion of the Administrative Law Judge.
________________________________ PAT WEST HUMPHREY, Commissioner