Opinion
Record No. 1035-94-1
Decided: December 6, 1994
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Affirmed.
(J. Gray Lawrence, Jr.; Howell, Daugherty, Brown Lawrence, on brief), for appellant.
(Charles F. Midkiff; Bradford C. Jacob; Midkiff Hiner, on brief), for appellees.
Present: Judges Barrow, Koontz and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Mary Jane L. Barnes contends that the Workers' Compensation Commission erred in finding that she failed to prove by clear and convincing evidence that her human immunodeficiency virus ("HIV infection"), an ordinary disease of life, arose out of and in the course of her employment as a licensed practical nurse ("LPN") for Correctional Medical Systems, Inc. ("employer"). Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the commission's decision. Rule 5A:27.
The parties do not dispute the commission's finding that Barnes's condition constitutes an ordinary disease of life.
For an ordinary disease of life to be treated as an occupational disease, Code Sec. 65.2-401 requires that a claimant must establish, by clear and convincing evidence, to a reasonable degree of medical certainty, that the disease arose out of and in the course of the employment; did not result from causes outside of the employment; is characteristic of the employment; and was caused by conditions peculiar to the employment.
"Whether a disease is causally related to the employment and not causally related to other factors is . . . a finding of fact." Island Creek Coal Co. v. Breeding, 6 Va. App. 1, 12, 365 S.E.2d 782, 788 (1988). Unless we can say as a matter of law that Barnes's evidence sustained her burden of proof, the commission's findings are binding and conclusive upon us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
Barnes alleged that she acquired her HIV infection when she accidentally punctured her skin with a hypodermic needle while working for employer. The employer provided health care to inmates in the Virginia Beach City Jail, and Barnes testified that on May 13, 1987, she stuck herself with a needle she had used to take a blood sample from an inmate. Barnes was not tested for HIV infection until March 1991. The test revealed that she was HIV positive.
In holding that Barnes failed to prove that her HIV infection arose out of and in the course of her employment, the commission found as follows:
[E]ven conceding that the claimant may have eliminated a number of possible sources of infection, we are still faced with the following facts: (1) that she has been hospitalized ten times in eleven years, (2) that she has been exposed to blood and blood products, both in her occupation as an LPN and as a patient during hospitalizations, (3) that she did not prove that she was HIV negative before the 1987 needle stick, (4) that she could not identify the inmate on whom she used the needle, and (5) that she is unable to prove the inmate was HIV positive. Based on this evidence, we find that she has not proven by clear and convincing evidence, with reasonable medical certainty, that the 1987 needle stick is the source of her HIV infection.
The commission also noted that Barnes received a blood transfusion in 1981; that her ex-husband testified that he was HIV negative, but did not present test results at the hearing; that Barnes cared for an HIV patient during her career as an LPN; and that she worked in labor and delivery at DePaul Hospital in 1983 and 1984.
Dr. Scott A. Miller, Barnes's treating physician, opined that the level of Barnes's T-helper cells in April 1991 was consistent with an exposure to HIV in 1987. However, in his deposition testimony, Dr. Miller agreed that he could not opine that the 1987 needle stick was the cause of Barnes's HIV infection with any reasonable degree of medical certainty, absent knowledge of the HIV status of the inmate from whom Barnes withdrew blood. Dr. Jack Freund, who examined Barnes's medical records and her October 1992 deposition, opined that he could not state where or when Barnes acquired her HIV infection.
Based upon the lack of any medical opinion relating Barnes's HIV infection with any reasonable degree of medical certainty to the 1987 needle stick, and taking into account the other possible sources of her infection which existed outside of her employment, we cannot say as a matter of law that Barnes's evidence sustained her burden of proving causation by clear and convincing evidence. Accordingly, we are bound by the commission's finding.
For the reasons stated, we affirm the commission's decision.
Affirmed.