KENTUCKY EMPLOYERS SAFETY ASSOCIATION V. LEXINGTON DIAGNOSTIC
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RENDERED: MAY 21, 2009
TO BE PUBLISHED
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2008-SC-000671-WC
KENTUCKY EMPLOYERS SAFETY ASSOCIATION
V.
APPELLANT
ON APPEAL FROM COURT OF APPEALS
CASE NO. 2007-CA-002360-WC
WORKERS' COMPENSATION BOARD NO . 06-01234
LEXINGTON DIAGNOSTIC CENTER ;
LEE KIRKLAND ; HONORABLE JOHN B .
COLEMAN, ADMINISTRATIVE LAW JUDGE,
AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION OF THE COURT
AFFIRMING
This appeal results from a medical fee dispute between an employer and
its workers' compensation insurance carrier.' At issue is whether a healthcare
worker who was splattered in the face and eye with blood sustained a
compensable injury and, as a consequence, whether the employer or the
insurance carrier bears liability for the expense of OSHA-required prophylactic
testing. Affirming a decision by the Workers' Compensation Board, the Court
1 803 KAR 25:012, ยง 1 permits an employer, carrier, medical provider, or injured
worker to file a medical fee dispute regardless of whether the worker has filed an
application for workers' compensation benefits .
of Appeals determined that the worker sustained a compensable injury and,
thus, that the carrier was liable. We affirm but our reasoning differs.
Being splattered in the face and eye with foreign blood or other
potentially infectious material is a traumatic event for the purposes of KRS
342.0011(1) . The presence of blood in the eye constitutes an exposure as
defined in 29 CFR 1910 .1030(b), which shows a harmful change in the human
organism, i.e. , the introduction of foreign blood or potentially infectious
material into the worker's body.
KRS 342 .0011(1) provides as follows:
"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. "Injury" does not include . .
. any communicable disease unless the risk of
contracting the disease is increased by the nature of
the employment . "Injury" when used generally, unless
the context indicates otherwise, shall include an
occupational disease . . . but shall not include a
psychological, psychiatric, or stress-related change in
the human organism, unless it is a direct result of a
physical injury[.]
The worker was splattered in the face and eye with blood and saline
while flushing a patient's IN. line. He notified the employer and sought
medical treatment immediately after the incident occurred, at which point the
applicable post-exposure protocol was initiated . It required a series of five
office visits that included tests for bloodborne pathogens, for a total cost of
about $700.00 . The carrier paid for the first two visits and part of the third but
resisted further payment, stating that its policy was to pay for an initial test
and one follow-up "as a matter of custom and practice and a courtesy to its
members ." The carrier asserted that an exposure has the potential to harm
but does not constitute an injury until such time as objective medical findings
show that it produced a harmful change in the human organism .
The carrier supported its position with testimony from Dr. Wolens, who
stated that OSHA requires an employer to provide post-exposure prophylaxis
for workers who are exposed to blood and certain body fluids. Although he
opined that an exposure to the risk of infection is not synonymous with an
injury, he did not state that the protocol at issue was unreasonable or
unnecessary treatment when foreign blood is spattered into the eye. Likening
the present exposure to an exposure to coal dust, he stated that employers pay
for tests to determine if employees have developed pneumoconiosis but that the
workers' compensation carrier does not become liable until the exposure
produces a harmful change that is shown with objective medical findings .
Affirming decisions by the Board and the ALJ, the Court of Appeals relied
on authority that concerned psychological harm and held that contact with
blood and other body fluids constitutes a "physical injury" under KRS
342 .0011(1) ;2 that blood spattered into the worker's eye caused a temporary
2 See Richard E. Jacobs Group, Inc v White , 202 S .W.3d 24 (Ky. 2006) (physical
exertion from performing CPR and first aid constitutes a physically traumatic event) ;
Lexington-Fayette Urban County Government v West , 52 S.W.3d 564 (Ky. 2001) (a
psychological, psychiatric, or stress-related change must directly result from a
3
change in the human organism ; and that the purpose of the protocol was to
determine if a permanent change occurred.
Appealing, the carrier continues to assert that the employer failed to
meet its burden of proof. The carrier argues that the Court of Appeals equated
mere contact with blood and other body fluids with a physical injury, thereby
extending the definition of injury to include a mere exposure to a potentially
hazardous substance without regard to whether the exposure produced a
harmful change shown by objective medical findings . Stating that the
expanded definition would have far reaching impact on Kentucky employers
and insurers, the carrier questions whether it would become liable for medical
monitoring to determine whether workers' exposure to potentially hazardous
substances or to repetitive motion has, in fact, produced a harmful change.
Neither an occupational disease, nor a gradual injury, nor any other
harmful change in the human organism becomes compensable until it is
shown by objective medical findings to exist. Chapter 342 views a sudden,
accidental exposure to a substance that produces a harmful change as being
an injury.3 The present case concerns a single traumatic event. The carrier
physically traumatic event in order to be compensable as an injury). West and
White involved allegations of psychological or psychiatric harm . At issue was the
requirement that a psychological, psychiatric, or stress-related change in the human
organism must result directly from a "physical injury" to be considered an injury
under KRS 342.0011(1) . The court construed the term "physical injury" as referring
to "a physically traumatic event" rather than to a physical harm . Thus, West and
White are instructive but of limited value because the present claim involves a
physical harm. Physical harm is compensable under KRS 342 .0011(1) without
regard to whether the trauma that caused it was physical or emotional.
3 Mobile Wash_of Louisville, Inc. v. Lovitt, 565 S.W .2d 150 (Ky. App. 1978) .
4
asserts that no objective medical evidence showed a harmful change in the
human organism but does not dispute that blood splattered onto the worker's
face and into his eye. Contrary to its assertion, the traumatic event produced a
harmful change (the introduction of foreign blood into the worker's eye),
regardless of whether subsequent objective medical findings showed the
presence of an infection or other harmful change .
29 CFR 1910.1030 requires employers to protect all workers whose job
duties may be reasonably anticipated to bring them into contact with blood and
other potentially infectious materials . 4 When a worker is exposed to such
materials, the regulation requires post-exposure prophylaxis as indicated by
United States Public Health Service recommendations . 29 CFR 1910 .1030(b)
defines an exposure as being "a specific eye, mouth, other mucous membrane,
non-intact skin, or parenteral contact with blood or other potentially infectious
materials ." Parenteral contact means "piercing mucous membranes or the skin
barrier through such events as needlesticks, human bites, cuts, and
abrasions." Thus, mere contact with blood or other potentially infectious
materials may or may not constitute an exposure.
Being splattered in the face and eye with foreign blood or other
potentially infectious material constitutes a traumatic event for the purposes of
KRS 342.0011(1) . Objective medical evidence of a resulting exposure as
defined in 29 CFR 1910.1030(b) evidences a harmful change in the human
4 Secretary of Labor, Commonwealth of Kentucky v. Irvin H. Whitehouse 8s Sons, 977
S .W.2d 250 (Ky. App. 1998) .
organism because such exposure introduces foreign blood or other potentially
infectious material into the worker's body. Thus, KRS 342 .020(1) entitles the
affected worker to reasonable and necessary medical treatment "for the cure
and relief from the effects of an injury. "5 KRS 342 .020(1) includes treatment
for the injury's immediate effects as well as treatment to help determine if it
produced harmful changes not evident immediately or to address such
changes . What treatment is reasonable and necessary depends on the
circumstances .
The carrier argues that all medical treatment and testing to date has
failed to reveal any objective medical findings of a harmful change in the
human organism, but it does not dispute that blood and saline splattered onto
the worker's face and into his eye . Thus, the absence of a medical report to
confirm that fact does not compel a finding in the carrier's favor. We conclude,
therefore, that the AL,J did not err in finding that the worker sustained an
injury and that the carrier is liable for reasonable and necessary medical
treatment, including both the initial treatment and post-exposure prophylaxis.
The decision of the Court of Appeals is affirmed .
All sitting. All concur.
5 FEI Installation, Inc. v. Williams , 214 S .W.3d 313 (Ky. 2007).
6
COUNSEL FOR APPELLANT,
KENTUCKY EMPLOYERS SAFETY ASSOCIATION :
Thomas L. Ferreri
Ferreri 8, Fogle
333 Guthrie Green
203 Speed Building
Louisville, KY 40202
Gregory Lonzo Little
Ferreri 8v Fogle
300 E. Main Street
Suite 400
Lexington, KY 40507
COUNSEL FOR APPELLEE,
LEXINGTON DIAGNOSTIC CENTER :
Kevin Wayne Weaver
Sturgill, Turner, Barker & Moloney, PLLC
333 West Vine Street
Suite 1400
Lexington, KY 40507
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