The opinion of the court was delivered by: Judge Pellegrini
Submitted: November 13, 2009
BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge, HONORABLE KEITH B. QUIGLEY, Senior Judge.
Lancaster General Hospital (Employer) appeals from an order of the Workers' Compensation Appeal Board (Board) affirming the decision of the Workers' Compensation Judge (WCJ) granting the claim petition of Janice Weber-Brown (Claimant) in which she claimed a work-related eye injury resulting in blindness in her left eye and a cornea transplant. Finding no error in the Board's decision, we affirm.
Claimant worked in Employer's intermediate unit as a licensed practical nurse from 1979 to 1985. Sometime during 1979 or 1980, Claimant was cleaning the tracheotomy of a patient infected with the herpes simplex virus (HSV) when the patient coughed causing sputum to spray in Claimant's left eye. She proceeded to Employer's emergency room to have her eye flushed, was given antibiotics, and was told to see her eye doctor. Approximately two weeks later, Claimant's eye ached, swelled and her vision began to blur, so she returned to the emergency room. As a result of this visit, Claimant believed she contracted an HSV infection in her left eye.
The infection in Claimant's eye recurred numerous times over the following years and each time she received treatment, the symptoms would dissipate and her vision would eventually improve. However, the infection recurred in October 2006 and did not improve or respond to treatment. By February 2007, Claimant had lost vision completely in her left eye. She sent a letter to Employer dated March 9, 2007, giving the background of her employment, explaining the incident with the tracheotomy patient, her history of recurrent flare-ups, and her deteriorating condition. In May 2007, Claimant underwent a cornea transplant and was off work for three weeks.*fn1 Claimant filed a claim petition alleging loss of the use of her left eye as of March 8, 2007, due to exposure to HSV while in the course of her employment. Employer filed an answer denying the allegations.
Before the WCJ, Claimant testified that she worked for Employer as a licensed practical nurse for approximately six years. She could not remember the exact date of the incident, but stated that at some point during 1979 or 1980, she was cleaning the tracheotomy of a patient infected with HSV when the patient coughed and sputum sprayed in her left eye. She stated that she immediately reported the incident to her charge nurse who directed her to Employer's emergency room where her eye was flushed and she was given antibiotics. However, Claimant alleged that two weeks later, her eye ached, swelled, was red and her vision began to blur so she returned to the emergency room. After that visit, Claimant believed she had contracted an HSV infection in her eye due to the above spraying incident. She testified that she again notified her charge nurse as well as the day supervisor, June Stum, of the infection.
Claimant testified that at Employer's direction, she treated three to four times at the emergency room. She was not billed for these visits and understood that Employer was paying for the treatment. The infection in her eye recurred several times for which she treated with her regular eye doctor, William Spitler, III, M.D. (Dr. Spitler), until he referred her to Barton L. Halpern, M.D. (Dr. Halpern) in 1985. Claimant testified that the eye infection recurred several times over the years, with her vision becoming cloudy and her eye swelling, and that the longest period she went without an active infection was six to seven years. She testified that the infection surfaced again in October, 2006, that it did not respond to treatment, and that she lost vision in her left eye completely in February 2007. She reported her loss of vision to Employer's workers' compensation office at that time. Dr. Halpern performed a cornea transplant in February 2007, but the transplant had not improved her vision. At the present time, Claimant could only see light and colors with her left eye, her vision was blurry and she could not read with that eye.
Marcia Goss (Nurse Goss), a registered nurse who worked in Employer's intermediate unit from June 1979 to June or July 1980, also testified. Nurse Goss was Claimant's supervisor and she testified that there was a patient infected with HSV on their unit during that time period. She remembered Claimant's incident quite clearly because it was unusual to have a chronic ventilation patient on the intermediate unit. She testified that after the incident, Claimant's eye was red, swollen and irritated, that she told her to treat at the emergency room, and that Claimant later informed her that she had contracted an HSV infection in her eye. Claimant also presented the testimony of Beverly Earhart (Earhart), a nurse's aide who worked on the intermediate unit beginning in 1980 during the same shift as Claimant and Nurse Goss. Earhart corroborated the testimony of Goss that there was a chronic ventilation patient with HSV on their unit in early 1980, and that they rarely had such patients in the intermediate unit. She also testified that Claimant's eye became infected at that time and that she complained of pain.
Henry Canello (Canello), Employer's Director of Benefits, testified that in response to Claimant's March 9, 2007 letter, he had his department search the hospital records but they did not find any records relating to this incident, Claimant's emergency room treatment, or to a patient infected with HSV. However, Canello admitted that while Employer retained some records from 1979 and 1980, he could not attest that they were complete.
Teresa Yost (Yost), benefits administrator in Employer's Human Resource Department, also testified. She has worked for Employer for 33 years and was the benefit clerk from 1979 to 1982. She testified that during the timeframe of Claimant's incident, that when an employee was injured on the job, she would either provide the emergency room with an injury report or the emergency room would have the employee complete one. Once it was determined that the injury was work-related, the hospital would write off the emergency room charges and would pay any bills the employee incurred for outside treatment. Yost also testified that she maintained a log of the reported work injuries, and when reviewing the records from the hospital, she was unable to find an injury report or any hospital bills regarding Claimant's alleged incident. However, Yost admitted that her records were not complete as she could only find logs from March through September 1980.
Claimant also presented the deposition testimony of Dr. Halpern, which indicated that he first examined Claimant in August 1985. At that time, Dr. Halpern noted that she had swelling of the left cornea, consistent with HSV, and that she stated that she first contracted HSV five years prior.*fn2 Dr. Halpern treated Claimant intermittently with steroids and antiviral medication for her HSV flare-ups. Claimant would improve only to later suffer another flare-up. He indicated that Claimant's testimony was consistent with her suffering an initial infection soon after she was sprayed in the face with sputum from the tracheotomy patient and suffering recurring secondary infections thereafter. Dr. Halpern indicated that Claimant's vision failed to improve after the October 2006 recurrence, and he diagnosed Claimant as having suffered a dense vascularized corneal scar in her left eye related to chronic inflammation due to an HSV infection. In March 2007, he discussed with her the possibility of a cornea transplant. By May 16, 2007, Claimant's vision was 20/200, which qualified as legally blind for tax purposes, and Dr. Halpern performed Claimant's cornea transplant on May 22, 2007. Despite the transplant, Claimant's vision had not improved, and Dr. Halpern indicated that while her new cornea was clear, HSV could affect other tissues in the eye beyond the cornea. On cross-examination, Dr. Halpern admitted that HSV was very common in the population and could be transmitted through kissing, skin or mucous contact and that it was a common reason for cornea transplants.
Employer presented the deposition testimony of Kristen Hammersmith, M.D. (Dr. Hammersmith). Dr. Hammersmith testified that HSV was very common and that after a person was infected, it becomes latent and could cause recurrences throughout the person's lifetime. She testified that common symptoms of HSV were vesicles on the skin, swelling, light sensitivity, redness, poor vision and a feeling as if something was in the eye. She also stated that only one to six percent of HSV patients knew when they were initially infected. Dr. Hammersmith evaluated Claimant on January 21, 2008, and reviewed Dr. Halpern's records. Claimant provided a history of the spraying incident in which she denied vesicles or redness of the eye, but indicated she experienced blurred vision, drooping of her eyelid and a feeling that something was in her eye. Dr. Hammersmith agreed that Claimant's symptoms and recurring pattern of blurred vision were consistent with HSV infection and that Claimant underwent a cornea transplant because of scarring from HSV infection. However, she believed that it was only possible and not likely that the spraying incident while Claimant was cleaning the patient's tracheotomy was the actual source of her infection. Claimant's report of poor vision after the spraying incident, without any redness or vesicles on the skin, was more typical of a secondary or recurrent infection and was not typical of initial exposure to HSV, although she agreed that it would depend upon where the herpes was attacking. Dr. Hammersmith also admitted that it was difficult to determine whether the spraying incident was Claimant's initial exposure without reviewing her initial treatment records, which could not be located.
The WCJ granted Claimant's claim petition finding that her left eye was initially infected with HSV in February 1980 during the course of her employment, and that she suffered a permanent and complete loss of use of her left eye as a result of this work-related incident entitling her to benefits pursuant to Section 306(c) of the Workers' Compensation Act (Act).*fn3 Claimant's left eye did not materially contribute to her overall vision, even in conjunction with her right eye. He found that Claimant was initially infected while cleaning the tracheotomy of a patient infected with HSV, that she suffered periodic flare-ups which caused scarring of her cornea, and that this eventually necessitated a cornea transplant. In addition, the ...