Winter 2009 SBH Work Comp Quarterly
PDF FormatMRSA: A Roadmap for Processing
By Jennifer Roumell and Krishna Balasubramani
The number of workers' compensation claims made for infectious diseases and, in particular, methicillin-resistant staphylococcus aureus (MRSA) have been increasing. Determining causation of these claims is very difficult as the exact exposure is usually hard to ascertain and a definitive diagnosis is not always available. Below is a roadmap to help you navigate the initial determination of compensability of an infectious disease claim.
Evaluating the Claim
The first step is to determine if objective evidence supports the claim. Workers' compensation rules require medical evidence supported by objecting findings to establish a condition. This threshold is very low, as claimant's findings do not have to be presently verifiable, just capable of being verified. Therefore, if you have a chart note from a medical provider that states claimant had such symptoms, it may be enough to constitute objective evidence. For example, in SAIF v. Lewis, 335 Or 92 (2002), the worker stirred up dust and experienced fatigue, irritation, coughing and became disoriented. By the time he sought medical treatment, he had none of these symptoms. The Oregon Supreme Court held claimant's symptoms could constitute objective evidence if the examining doctor considers the symptoms and states the worker had prior verifiable findings.
Second, you need to determine if you are dealing with an injury or occupational disease claim. This will impact what legal standard of proof applies. For an accidental injury situation, the threshold is very low: a material cause of disability or need for treatment. ORS 656.005. A material contributing cause is a substantial cause, but not necessarily the sole cause or even the most significant cause. The worker need not even prove a specific diagnosis for an accidental injury claim - just a need for treatment. In the MRSA context, a need for treatment can be preventative treatment, such as a vaccine, culture or lab work, and/or medication, such as used in AIDS exposure. See K-Mart v. Evenson, 167 Or App 46 (2000). An occupational disease claim, however, requires a higher standard of proof. The worker must establish that the exposure is the major contributing cause of the diagnosed condition. ORS 656.802. Major contributing cause is defined as a cause that is 50 percent or greater than other causes combined. Schuler v. Beaverton School Dist. No. 48J, 334 Or 290, 296 (2002). If the MRSA or other infectious disease is claimed as a consequential condition - such as an infection setting in after treatment for an open wound or surgery - the higher, major contributing cause standard also applies.
Investigating the Claim
Once you have identified the appropriate standard to determine compensability, you will need to investigate the claim. In most instances, you will initially be presented with an exposure claim and will not know whether it will progress into an actual diagnosable condition. The investigation will include both fact investigation and medical investigation.
On the fact side, the initial question is whether an actual exposure occurred. A potential exposure may not have been an actual exposure. For example, in a blood borne pathogen case, you need to determine not just whether there was exposure to blood, but whether there was exposure to blood carrying a disease. Or, if the Oregon Safety and Health Administration (OSHA) rules apply and claimant followed a blood borne pathogen protocol, the risk of actual exposure is decreased. Thus, the factual investigation may involve evaluation of employer policies, industrial hygiene testing, evaluation of a third-party's medical information (if obtainable) and potential exposure outside of work. The first step in the factual investigation, however, should always be a recorded statement. A recorded statement covers everything from how, when, where, witnesses, job duties, safety procedures, outside activities, exposures, medical conditions and providers. The sooner it is conducted, the better - before stories change and memories fade.
For making compensability determinations, you may also want input from a medical expert. In MSRA and infectious disease cases, the experts you choose can influence later litigation. Recent Board cases dealing with MSRA have relied upon specialized experts over primary care physicians in determining compensability. Possible experts could include experts in infectious disease, county health department experts, OSHA experts, or experts from the National Institute for Occupational Safety and Health.
Finally, it is always important to consider the bigger picture. Do you have a large number of claims based upon an isolated possible exposure? Accepting a possible exposure and paying for preventative treatment may be an option. Are you dealing with one claimant who has potential outside exposures? More investigation into possible sources of exposure may be warranted. The final consideration when looking at exposures from several sources is the risk of a Smothers claim. Such a claim for personal injury liability may be brought under ORS 656.019 if a denial is based on failing to meet the major contributing cause standard. The potential for a Smothers claim should be considered as a factor when denying a claim based on relative weight of several exposures.
In sum, following this simple roadmap for evaluating and investigating infectious disease claims, including MRSA, should help you effectively deal with exposure claims. If you have further questions or have a specific claim to process, you should contact your attorney.
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