OPINION ENTERED: October 29, 2007
CLAIM NO. 06-01234
KENTUCKY EMPLOYERS SAFETY ASSOCIATION PETITIONER
VS. APPEAL FROM HON. JOHN B. COLEMAN,
ADMINISTRATIVE LAW JUDGE
LEXINGTON DIAGNOSTIC CENTER
LEE KIRKLAND
and HON. JOHN B. COLEMAN,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
* * * * * *
BEFORE: GARDNER, Chairman, COWDEN and STIVERS, Members.
COWDEN, Member. Kentucky Employers Safety Association (KESA) appeals from an opinion and order dated June 20, 2007 rendered by Administrative Law Judge (“ALJ”) John Coleman which sustained Neurodiagnostics PSC d/b/a Lexington Diagnostic Center’s (“Neurodiagnostics”) medical fee dispute filed against KESA. In the opinion and order, the ALJ found that the contested medical expenses which were subject to the dispute were reasonable and necessary and compensable under KRS 342.020. On appeal, KESA argues that Lexington Diagnostic Center has failed to produce evidence that a compensable work-related injury occurred since no evidence was filed establishing the occurrence of a work-related event which caused a harmful change in the human organism as evidenced by objective medical findings. KESA also argues that the ALJ erred in not dismissing the medical fee dispute in as much as it failed to comply with 803 KAR 25:012, 803 KAR 25:010 Section 13 (9)(b) and 803 KAR 25:096(6).
The medical fee dispute alleges that on June 13, 2005, Lee Kirkland, (“Kirkland”) an employee of Neurodiagnostics, was exposed to hazardous body fluids when flushing an IV of a patient. The medical fee dispute further alleges that the saline and blood from the syringe splattered on Kirkland’s face and into his right eye. The injury was immediately reported via facsimile to KESA, the workers’ compensation insurance carrier for Neurodiagnostics, and Kirkland left the office to seek medical attention. Dr. Uzma Aslam of the Urgent Treatment Center (“UTC”) began the protocol for post exposure which required Kirkland to be seen six weeks post injury, twelve weeks post injury, six months post injury and twelve months post injury. The medical fee dispute further noted that Quest Diagnostics (“Quest”) performed the testing of the blood. The medical fee dispute acknowledges that KESA paid for a July 13, 2005 bill from UTC and Quest; a July 25, 2005 bill from UTC and Quest; and a September 20, 2005 bill from UTC and Quest. However, Kirkland began receiving bills at his house for unpaid claims. The medical fee dispute continues by noting that on January 12, 2006, KESA wrote a letter to the UTC stating that Kirkland’s claim was denied based on the fact that the injury was not work-related. A copy of this letter was attached to the medical fee dispute from KESA.
In response to inquiries, KESA enclosed another letter dated April 12, 2006 from Kevin Fallahay, Claims Manager and addressed to Debbie Winslow at Neurodiagnostics which 1) makes reference to KESA’s policy on needle sticks and other exposures and 2) notes that it has expanded the policies to pay for the initial test and one follow-up. Attached to the medical fee dispute was KESA’s policy on needle sticks and other exposures. KESA’s policy on needle sticks provides as follows:
Needle Sticks
Injury: As defined in Kentucky Workers’ Compensation: Any work related traumatic event or series of events which is the proximate cause producing a “harmful change” in the human organism evidenced by objective medical findings.
KESA advises its members that needle sticks must be reported. Unless or until diagnosed, it is undetermined whether a harmful change has occurred. KESA as a matter of custom and practice and a courtesy to its members has agreed to pay, if requested, the initial blood test in the absence of any diagnosed harmful change.
If it is determined that a harmful change has occurred by objective medical findings, then all reasonable and related medical treatment arising out of the work injury will be borne by KESA.
NOTE: The statute adequately provides for a reopening of a reported claim for a period of 2 years from the date of injury.
Neurodiagnostics then asserts in the medical fee dispute that after corresponding with a representative from KESA and having been assured that the bills would be paid, on June 16, 2006, UTC wrote Kirkland a letter indicating that his account was in default and that a possible collection procedure would be set in place. A request was made with KESA to expand its coverage to include the entire recommended post exposure control plan and asking for utilization review to be performed. In response, Neurodiagnostics asserted that a claims manager at KESA informed Neurodiagnostics that KESA would not change its policy and that it stood by its denial. A copy of this denial letter dated June 29, 2006 was also attached to the medical fee dispute.
Neurodiagnostics attached to the medical fee dispute, copies of the unpaid medical bills which included a July 25, 2005 bill; December 20, 2005 bill; and a June 23, 2006 bill from UTC for $13.00 a piece as well as a June 23, 2006 bill for $93.60 to cover the cost of laboratory service for viral antibody from Quest and a December 20, 2005 bill for $564.45 from Quest to cover the following blood work: EIA: HEP B Surface AG, HEP A AB IGM, HEP B Core AB IGM, Viral Antibody 1 titer and HEP C AB.
Also attached was a KESA claims profile dated June 13, 2005 which reflects that KESA reserved $400.00 in medicals on the claim for an accident date of June 13, 2005 which occurred to Kirkland when he was exposed to bodily fluids involving blood in his right eye when flushing an IV.
Also attached to the medical fee dispute was a protocol for post exposure with dates to return for follow-up treatment which included June 13, 2005 for a hepatic function test, HIV testing pre and post counseling and hepatitis C tests, July 25, 2005 for HIV testing and hepatic function tests, September 19, 2005 for HIV testing, December 19, 2005 for HIV testing and hepatic function tests, and June 3, 2006 for HIV testing.
Also included with the medical fee dispute was a Needle Stick and/or Sharps Incident policy.
On October 25, 2006, KESA filed a response to the medical fee dispute and on October 30, 2006 KESA filed an addendum to the response. In an order dated December 18, 2006, the Chief ALJ considered the medical fee dispute and the response filed by KESA and ordered that the matter be assigned to an Administrative Law Judge for the taking of proof. The order provided in part as follows:
. . . . The undersigned Administrative Law Judge recognizes that the amounts of the disputes in this claim are relatively small. However, the complexity of the larger issues involved in this matter do not render themselves to a summary resolution on the Frankfort motion docket. . . .
In addition to the protocol for post exposure attached to the medical fee dispute, the Needle Stick and/or Sharps Incident policy was also filed and attached to the medical fee dispute. This policy provides in part that an employee sustaining a contaminated needle or dirty instrument shall immediately inform his/her supervisor, fill out an incident report and report to the provider on duty. The policy further provides in part as follows:
. . . .
5. If the source is KNOWN, permission should be obtained from the source patient to draw HbsAg, anti-HBs, liver-function tests, and HIV. In addition, an anti-HCV and/or VDRL may be sent only in at risk patients (see section 9 and 11). The employee shall have a Quantitative anti-HBs (if unknown), liver function tests, and HIV. A base line anti-HCV and/or VDRL shall only be sent if source patient is at high risk.
. . . .
The policy further provides as follows:
7. The provider must assess risk of HIV transmission, HIV pre- and post-counseling must be implemented by the medical provider. A baseline HIV on the employee shall be sent with follow up HIV serology at six weeks, three months, and six months. Factors associated with high risk transmission are:
. . . .
b. Visible blood on device of injury
. . . .
8. The results of the HIV status, on the patient and the employee, will be reported to the provider.
a. If the patient is HIV positive, and the employee negative, appropriate anti-retroviral therapy will be started if not presently implemented. Follow up HIV serology on the employee shall be sent at six weeks, three months, and six months as recommended by the Centers for Disease Control.
b. If the source patient is HIV negative and low risk, the employee may stop any anti-retroviral prophylaxis with appropriate HIV serology follow up.
c. If the source patient is HIV negative but with risk behaviors, the decision to stop prophylaxis therapy must be weighed. Follow up HIV serology on the employee shall be sent at six weeks, three months, and six months.
9. If the source of the contaminated needle is known positive for syphilis (positive RPR or VDRL) or the source of increased risk (i.e. visit to clinic for STDs), the following steps will be taken:
a. With permission, a VDRL will be added to the source patient’s lab.
b. Draw a baseline VDRL on the employee within 24 hours. If the VDRL is positive, have the laboratory quantify the VDRL titer. If significant, treat employee appropriately (consider the need to treat as more than one year’s duration). If titer is low may confirm test with a FTA-ABS.
c. If employee’s VDRL is negative, repeat test in six weeks. If positive, quantify VDRL titer, treat with antibiotics and follow titer at 1, 3, 6, and 12 months after the treatment. If again negative, repeat at 3 months with repeat HIV test.
d. If source patient is VDRL positive and employee negative, would treat employee with appropriate antibiotics for primary syphilis. Quantitative VDRL should be checked at 1, 3, 6, and 12 months.
10. On all incidents please check the last Tetanus booster and treat appropriately.
11. Hepatitis C exposure must be considered if source patient is known to have Hepatitis C or to be at high risk (multiple sex partners, injecting drug use, multiple blood transfusions). If source is at increased risk, source patient should be checked for anti-Hepatitis C (anti-HVC) with permission.
a. If source is known positive for HCV, employee shall have a baseline anti-HCV and liver function tests added their lab studies. Anti-HCV and liver function tests should be repeated at 6 weeks, 6 months, and 1 year after exposure.
b. If source is not known to be positive for HCV but has elevated liver function test, an anti-HCV to the source patients lab studies should be added.
c. If source patient has normal liver function test and is at low risk for HCV or is negative for HCV, no further action is necessary.
d. If source of injury is unknown, the provider should consider checking the employee for anti-HCV at 3 and 6 months with the repeat HIV.
Also attached to KESA’s response to the motion to reopen was a medical report dated October 24, 2006 from Dr. Daniel Wolens. Dr. Wolens received a history that while working at the Lexington Diagnostic Center, Kirkland was flushing an intravenous line of a patient when blood splattered and entered in his right eye. Subsequent medical management was performed by Lexington Urgent Treatment Center where the blood-borne pathogen protocol for ongoing assessment was initiated. Dr. Wolens noted that it was his understanding that under Kentucky Workers’ Compensation Law in order for there to be an injury there must be a “harmful change” in the organism resulting from either an acute or cumulative process. Dr. Wolens opined that when one is exposed to human fluids, and there is the potential for blood-borne pathogen exposure, one has not suffered an “injury”. He recognized, however, that exposure to bodily fluids of another person does create the potential for the development of an infection in the exposed person. However, Dr. Wolens noted that exposure was not synonymous with injury. Dr. Woolens then equated the situation to an individual who was employed as a coal miner being exposed to coal dust or an individual in the construction industry who may be exposed to asbestos. In both of these situations, Dr. Wolens noted that a person has not developed an injury until either develops pneumoconiosis or asbestosis from the exposure. He did, however, differentiate this situation by noting a protocol for ongoing screening process was mandated by OSHA for exposures such as the one which is the subject matter of this medical fee dispute and that it is the burden of the employer to assume this protocol. Dr. Wolens went on to say that with blood-borne pathogens, screening includes a series of blood tests. Dr. Wolens concluded that it was his experience that the cost of screening tests was the responsibility of the employer particularly so since the screening programs were mandated by OSHA. He concluded by noting that these costs were not generally considered to be the burden, however, of the workers’ compensation carrier due to the fact that exposure and injury were not synonymous.
After proof taking and a benefit review conference was held, the ALJ made the following findings of fact and conclusions of law as it applies to the issues raised on appeal:
1. This is a claim initiated by Form 112 medical fee dispute filed on behalf of an employer requesting that its workers' compensation insurance carrier pay medical expenses on behalf of an employee. The medical expenses were incurred after the employee was exposed to hazardous body fluids and blood in the course and scope of his employment with the defendant-employer on June 13, 2005. The defendant-employer argues the plaintiff did not sustain an injury as defined by the Act and therefore, they are not liable for the medical expenses involved in testing. However, the Administrative Law Judge notes the definition of injury does not require the harmful change in the human organism to be a permanent harmful change. In this instance, the plaintiff was splashed in the face by contaminants including blood and/or other body fluids. The Administrative Law Judge believes this introduction of a foreign substance into and onto the plaintiff's body is a traumatic event arising out of and in the course and scope of employment. There is objective medical evidence that the event occurred as the parties involved could obviously see the foreign substance. In Cavin v. Lake Construction Co., Ky., 451 S.W.2d 159 (1970), it was noted that a finding of occupational disability is not a prerequisite to an award of medical benefits. In this particular instance, the employee is not alleging that he has sustained a permanent physical injury or occupational disability, but nevertheless, the incident does meet the definition of injury and falls within the dictates of K.R.S. 342.020.
2. The defendant-employer argues that the requested expenses are not reasonable or necessary for the treatment of the work related injury. However, the medical protocol submitted by the employer and the plaintiff clearly indicates the testing for Hepatitis B, HIV, liver function, and Hepatitis C should be performed within 24 hours of exposure and repeated in six weeks, three months, six months and twelve months. The report of Dr. Daniel Wolens does not say this testing is not reasonable and necessary medical care, but simply tries to shift the burden for paying for the testing onto the employer instead of the workers' compensation carrier. However, Dr. Wolens clearly indicates that such screening programs are mandated by OSHA. This, in and of itself, is proof the contested treatment is reasonable and necessary for the cure and relief of the plaintiff's work related injury. Therefore, the Administrative Law Judge finds the contested medical expenses which are the subject of this dispute reasonable and necessary and compensable under K.R.S. 342.020. The defendant-employer is ordered to pay for these contested expenses.
On appeal, KESA argues that 1) Neurodiagnostics has failed to produce evidence that an “injury” has occurred as that term is defined by statute in as much as no evidence was filed establishing the occurrence of a work-related event which has caused a harmful change in the human organism as evidenced by objective medical findings. KESA also argues that the medical fee dispute must be dismissed in as much as it failed to comply with 803 KAR 25:012, 803 KAR 25:010 Section 13 (9)(b) and 803 KAR 25:096. KESA argues in particular that the Form 112 did not contain any necessary supporting expert testimony from which the ALJ could have properly concluded that the contested treatment was reasonable, necessary and work-related. KESA also argues that there was no supporting expert testimony, corresponding treatment records or other substantial evidence of record upon which the ALJ could have properly determined what the contested bills were related to and/or whether they were reasonable and necessary. KESA also argues that there was no proof that Neurodiagnostics brought copies of unpaid medical bills and documentation of out of pocket expenses to the benefit review conference as required by 803 KAR 25:010(13)(9)(b). KESA further argues that there was no evidence of record that Neurodiagnostics entered a completed statement for services as required by 803 KAR 25:096 Section 6.
KRS 342.0011(1) provides as follows as applicable to the issues raised in this appeal:
“Injury” means any work-related traumatic event or series of traumatic events, including cumulative trauma, arising out of and in the course of employment which is the proximate cause producing a harmful change in the human organism evidenced by objective medical findings. . . .
KRS 342.020(1) provides as follows as it applies to the compensability of medical expenses:
In addition to all other compensation provided in this chapter, the employer shall pay for the cure and relief from the affects of an injury or occupational disease of the medical, surgical, and hospital treatment, including nursing, medical and surgical supplies and appliances as may be reasonably be required at the time of the injury and thereafter during disability. . . .
In F.E.I. Installation, Inc. vs. Williams, 214 S.W.3d 313 (Ky. 2007) the Supreme Court of Kentucky ruled that KRS 342.020(1) does not state that eligibility for medical benefits requires proof of a permanent impairment rating, a permanent disability rating, or of eligibility for permanent income benefits.
In Richard E. Jacobs Group, Inc. and Jacobs Group Management Company, Inc. vs. White, 202 S.W.3d 24 (Ky. 2006) the Supreme Court found that performing CPR and first aid on an individual with multiple gunshot wounds clearly required physical exertion and therefore constituted a physically traumatic event for purposes of 342.0011(1). See also Lexington Fayette Urban Government vs. West, 52 S.W.2d 564 (Ky. 2001) where the Court viewed that an incident described as a “full fledged fight” in which a police officer was scuffling and rolling on the ground as an event that involved physical trauma, in other words, a physically traumatic event.
From the cases cited above, this Board has no problem in saying that a work-related traumatic event has occurred in this case when the saline and blood from the syringe splattered on Kirkland’s face and into his right eye. Moreover, the blood that went into Kirkland’s right eye was clearly a harmful change to the human organism albeit a temporary harmful change. It is clear that Kirkland’s eye was temporarily contaminated with foreign blood and that the eye needed to be cleaned out. It takes no great leap of faith to infer that this is an objective medical finding in as much it is information gained through direct observation and testing. See KRS 342.0011(33). See also Staples, Inc. v. Konvelski, 56 S.W.3d 412 (Ky. 2001).
In this case, both parties agree that there is a protocol in place to treat this sort of “injury”. The protocol that has been put in place is an objective standardized method/test to determine the extent of permanent and harmful change, if any, of this exposure. Even Dr. Wolens, the petitioner’s own independent medical evaluator, noted that what makes this exposure unique is that there is a well defined protocol for ongoing screening, a process that is often mandated by OSHA and is the burden of the employer to assume. Medical expenses that are incurred to treat this exposure pursuant to the protocol are medical expenses that just happen to extend for a period of one year. It is of no consequence that the treatment pursuant to this protocol extends beyond the day the blood was splattered into the eye. It is clear that pursuant to KRS 342.020(1), the medical treatment mandated by the protocol should be the responsibility of the employer in as much as the expenses were incurred to pay for the cure and/or relief from the effects of the injury and was medical treatment which was reasonably required “at the time of the injury. . . .” (Emphasis added). To this extent, substantial evidence supports the ALJ’s finding that and this finding cannot be disturbed on appeal. See Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
This Board could not find any Kentucky cases that address the precise issue raised by the petitioner on this point. One out of state case, however, has addressed this issue and although its statute which defines “injury” is worded differently than KRS 342.0011(1), it is illustrative and supportive of the Board’s ruling. In Doe vs. City of Stanford, et al. 241 Conn. 692 A2d52, 699 (1997) a police officer in the performance of his police duties was exposed to the Human Immunodeficiency Virus (HIV) when medical pads contaminated with bodily fluids of a criminal suspect came in contact with an open wound on a claimant’s thumb. In yet another incident, a claimant, while engaged in the performance of police duties, was exposed to tuberculosis when he came into repeated close physical contact with another criminal suspect who, it was later learned suffered an active case of that disease. In connection with initial testing, the claimant incurred bills for medical treatment and laboratory work. The employer paid for laboratory services but not for medical treatment. The Connecticut Court concluded that the claimant had established, as a matter of law, that his exposures to two potentially fatal infectious diseases were compensable “injuries under the Act”. The court ruled that the claimant was improperly denied the right to recover for reasonable expenses that were incurred for medically appropriate testing and treatment. In so ruling, the court noted in part as follows:
Indeed, it would be contrary to humanitarian and remedial purpose of the Act to infer that the Legislature intended that an employee who sustains actual exposure to a potentially fatal infectious disease must await the onset of the disease before he can recover expenses associated with necessary and possibly life saving, medical intervention. . . .
Unlike the case cited above, there exists no proof in the record in this case that the blood splattered on Kirkland’s face and eyes contained a potentially fatal infectious disease. Nonetheless, it would be absurd to rule that the protocol recognized by the parties that has been put in place to treat this type of exposure would not be compensable under the Act.
Finally, contrary to the assertions made by KESA, the filing of the Form 112 was not deficient. Although the letter attached to the medical fee dispute was not in affidavit form, the medical fee dispute was notarized by Deborah Winslow with Neurodiagnostics. Moreover, the Form 112 contained the protocol for post exposures which served as necessary supporting evidence to demonstrate the reasonableness and necessity of such medical treatment. The medical report of Dr. Wolens attached to KESA’s response and dated October 24, 2006 also makes reference to this well-defined protocol for ongoing screening which further provides expert testimony in this regard. Furthermore, a copy of the unpaid bills that were being contested was in fact attached to the Form 112 satisfying the requirement of 803 KAR 25:012(3)(a)(1). Although there is no record whether Neurodiagnostics brought unpaid medical bills to the benefit review conference as required by 803 KAR 25:010(13)(9)(b), as has been demonstrated, the unpaid medical bills were attached to the medical fee dispute and any violation of this regulation was waived by KESA’s failure to object at the benefit review conference. Finally, each of the UTC bills include a diagnosis code of V15.85 on a Form CMS-1500 as required by 803 KAR 25:096(6). Furthermore, the contested medical bills from Quest specifically state on their face and demonstrate that the laboratory services were consistent with the protocol established for ongoing assessment which calls for testing for Hepatitis B, HIV, Liver Function, and Hepatitis C.
Accordingly, for the reasons stated above, the opinion and order dated June 20, 2007 is hereby AFFIRMED.
ALL CONCUR.
COUNSEL FOR PETITIONER
HON GREGORY LITTLE
FERRERI & FOGLE
300 E MAIN ST STE 400
LEXINGTON KY 40507
COUNSEL FOR RESPONDENT
HON KEVIN WEAVER
333 W VINE ST STE 1400
LEXINGTON KY 40507
ADMINISTRATIVE LAW JUDGE
HON JOHN B COLEMAN
107 COAL HOLLOW ROAD STE 100
PIKEVILLE KY 41501
