City of Turlock v. WCAB (STK09 YYZZZ)

Filed 7/27/07 City of Turlock v. WCAB (STK09 YYZZZ) CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for writ of review from a decision of the Workers Compensation Appeals Board. Frank M. Brass, William K. OBrien, and James C. Cuneo, Commissioners. Bertram Cohen, Workers Compensation Administrative Law Judge.

Law Office of Matthew Brueckner and Matthew Brueckner, for Petitioner.

No appearance by Respondent Workers Compensation Appeals Board.

Moorad, Clark & Stewart and Adam J. Stewart, for Respondent STK09 YYZZZ.

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The City of Turlock (City) petitions this court for a writ of review (Lab. Code,^[1]  5950; Cal. Rules of Court, rule 8.494) contending the Workers Compensation Appeals Board (WCAB) issued a decision lacking substantial medical evidence. The City argues the record does not demonstrate a causal connection between a sewage workers employment and his contraction of hepatitis C. Finding substantial evidence supporting the WCABs decision, we will deny the petition.

BACKGROUND

Respondent, identified anonymously in the WCABs records as STK09 YYZZZ, worked as a utility maintenance worker in the Citys sewage system for 16 years. In May 2004, Respondent filed a claim for workers compensation benefits alleging he contracted hepatitis C while working in the City sewers.

In September 2006, the parties asked a workers compensation administrative law judge (WCJ) to determine whether Applicant contracted hepatitis C in connection with his employment.^[2] Although the City did not include the WCJs summary of evidence as an attachment to its petition with this court,^[3] the WCJ later summarized the following facts in a report to the WCAB:

[Appellant] was exposed to raw sewage on a daily basis. According to his credible and unrebutted testimony, he worked around needles, feminine napkins, tampons and human waste, which contacted his skin, at times in the presence of open sores caused by glass-sharp broken clay sewage pipe. Although he wore gloves, the gloves would often fill with raw sewage, and he would sometimes slip down manhole ladders, skinning his legs and covering them with sewage. Applicant also testified that he had never used intravenous drugs, never had a blood transfusion, and never engaged in homosexual sex.

Applicant was diagnosed with hepatitis C, and filed a compensation claim. In connection therewith he was examined by Dr. James F. Lineback on his own behalf, who reported that it is well known that the hepatitis C virus is present in human feces, and that given the facts of the case it is medically probable that Applicant contracted the disease by the travel of raw sewage through intermittent breaks in the skin at work. On the other hand, Dr. Leonard Davis, examining for Defendant opined that the injury was not industrial, for lack of literature proving that hepatitis C is associated with the type of risks found in water treatment workers. According to Dr. Davis, Applicant belongs in a class of people with hepatitis C where the origin of the exposure is not clearly identifiable.

The WCJ found Dr. Linebacks medical reporting more persuasive than that of Dr. Davis and therefore concluded Applicants hepatitis C arose out of and occurred in the course of his employment with the City. After the City petitioned the WCAB for reconsideration, the WCJ reaffirmed that Dr. Lineback was far more accurate in his analysis than was Dr. Davis, who would have it that Applicant simply developed the disease from unknown sources. The WCAB adopted the WCJs reasoning and denied the Citys petition for reconsideration in April 2007.

DISCUSSION

The applicant in a workers compensation proceeding has the burden of proving industrial causation by a reasonable probability.  (Rosas v. Workers Comp. Appeals Bd. (1993) 16 Cal.App.4th 1692, 1700, citing McAllister v. Workmens Comp. App. Bd. (1968) 69 Cal.2d 408, 413.) This burden does not require the applicant to prove causation with scientific certainty. (Ibid.)

As an appellate court, we must uphold a WCAB decision supported by substantial evidence in light of the whole record. ( 5952; LeVesque v. Workmens Comp. App. Bd. (1970) 1 Cal.3d 627, 637 (LeVesque).) This standard is not met by simply isolating evidence which supports the board and ignoring other relevant facts of record which rebut or explain that evidence. (Garza v. Workmens Comp. App. Bd. (1970) 3 Cal.3d 312, 317.)

The opinion of a single physician may constitute substantial evidence. (LeVesque, supra, 1 Cal.3dat p. 639; Braewood Convalescent Hospital v. Workers Comp. AppealsBd. (1983) 34 Cal.3d 159, 169.) Thus, the WCAB is empowered to choose among conflicting medical reports and rely on that which it deems most persuasive. (Painter v. Workers Comp. Appeals Bd. (1985) 166 Cal.App.3d 264, 269.) But a medical experts opinion that is not based on relevant facts or assumes an incorrect legal theory is not substantial evidence. (Zemke v. Workmens Comp. App. Bd. (1968) 68 Cal.2d 794, 798.) A medical opinion also lacks substantial evidence if it is erroneous, beyond the physicians expertise, no longer germane, or based on an inadequate history, surmise, speculation, conjecture, or guess. (Place v. Workmens Comp. App. Bd. (1970) 3 Cal.3d 372, 378; see also Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620-621 [en banc].)

The City presents a dispute between the opinions of two evaluating physicians. Applicants physician, Dr. Lineback, concluded that [b]ased on this fact pattern, it is more probable than not (reasonably medically probable) that [Applicant] contracted the hepatitis C virus while working with raw sewage through intermittent breaks in the skin. Meanwhile, the Citys physician, Dr. Davis, reasoned that [s]ince the epidemiological literature does not describe any connection between waste water treatment work and the development of hepatitis C, then the contention that [Applicants] hepatitis C was caused by his occupation can only be speculative, and would not satisfy the normal criterion of being more likely than not.

Acknowledging the WCABs authority to choose between conflicting medical reports, the City contends Dr. Linebacks opinion, relied upon by the WCAB, does not amount to substantial evidence. The City argues Dr. Linebacks statement that [i]t is well known that the Hepatitis C virus is present in human feces is conclusional, patently speculative, and nothing more than unsupported presumptive conjecture because he does not substantiate sewage worker transmission of hepatitis C with supporting medical literature. The City therefore believes the WCAB erred in adopting the WCJs one-sentence opinion that [e]xposure to raw sewage is a known causative factor for Hepatitis C.

In response to the same contention, the WCJ advised the WCAB on reconsideration that the Citys attempt to belittle the opinion of Dr. Lineback was unconvincing. The WCJ proceeded to quote from Dr. Linebacks medical report responding to Dr. Daviss contrary medical opinion:

This patient was evaluated by Dr. Leonard Davis on 7/01/04. In his report of 08/15/04, Dr. Davis stated that the medical literature does not substantiate the [contention] that hepatitis C is associated with nonparenteral risks, and in particular with the risk in water treatment workers. He also went on to state that a significant number of cases have no clearly identifiable factors, and [Applicant] undoubtedly falls into that group.

Dr. Davis makes it sound as if the hepatitis virus simply appears in a particular group of patients with no clear identifiable factors. As I stated previously, hepatitis involves a virus that is transmitted from one location to the blood stream of an infected individual who eventually develops inflammation and scaring of the liver.

It is well known that the hepatitis C virus is present in human feces. As I stated previously, this gentleman has no nonindustrial risk factors of hepatitis C including IV blood transfusions, homosexual contact or IV drug use. However, during the several years he has worked for the City of Turlock, he has been exposed to raw sewage almost on a daily basis while repairing sewer pipes. As I stated previously, he would often be standing in raw sewage (i.e., feces) and would often work in a bent-over position while repairing those pipes. He states that on at least 12 occasions, that the skin of his hands was broken while working on raw sewage.

Obviously in patients with hepatitis C, these individuals have contracted the hepatitis virus from a particular source. This patient was working in an occupation that involved almost daily contact with raw sewage for several years. The intermittent, seemingly minor injuries to his hands while working on those pipes would seem insignificant, although certainly would be adequate to allow entry of the hepatitis virus through those breaks in the skin. Based on this fact pattern, it is more probably than not (reasonably medically probable) that the patient contracted the hepatitis C virus while working with raw sewage through intermittent breaks in the skin. Therefore, his hepatitis C should be considered an industrial injury.

Emphasizing Dr. Daviss opinion, the City contends that because there is a lack of medical literature evidencing of transmission of hepatitis C in similar sewage workers cases, it was not reasonably probable that Applicant contracted the virus while working for the City. The Citys claim, however, is not entirely accurate. Although Dr. Davis recites several studies of sewage workers in which there was not a significant correlation with an increase of hepatitis C contamination, he also refers to another that expressly disagrees. In a 1999 study attached to Dr. Daviss medical report, University of Southern California researchers concluded sewer workers may be at increased risk of contracting hepatitis C. (Brautbar & Navizadeh, Brief Communication: Sewer Workers: Occupational Risk for Hepatitis C in Archives of Environmental Health (Sept./Oct. 1999) p. 328 (hereafter, Brautbar).) Although Dr. Davis dismisses the conclusions as speculative and not supported by literature, the report itself is based on outbreaks of hepatitis C caused by sewage water:

A waterborne epidemic of hepatitis C virus (HCV) (non-A, non-B hepatitis) was reported in Medea, Algeria, where an accidental sewage contamination of the river water resulted in widespread HCV infection. Epidemics of viral hepatitis in Rewa, Madhya Pradesh, India, and Kathmandu Valley, Nepal, suggest that the source of infection is water contaminated by sewage. (Brautbar, supra, at p. 328, fns. omitted.)

The report continues:

The results of case reports, case studies, and epidemiological studies have suggested that sewage-contaminated water is the vector of the transmission of hepatitis A and hepatitis B. Inasmuch as hepatitis C has also been transmitted via water accidentally contaminated with sewage, it is reasonable for us to suggest that sewer water may serve as a vector in transmitting hepatitis in occupational settings. Sewer workers are exposed to many pathogens during employment and traditionally have been at greater risk for acquiring infections (e.g., hepatitis A virus) than the general population. (Brautbar, supra, at p. 329, fns. omitted.)

Thus, as the WCJ noted, the literature cited by Dr. Davis does include cases, however rare, in which just such a connection [between sewage exposure and hepatitis C] was found.

In the present case, the record contains the opinion of one medical expert, Dr. Lineback, who opined that hepatitis C is transmittable via human waste and raw sewage, versus the medical opinion of another physician, Dr. Davis, who found insufficient medical literature supported such a conclusion. Dr. Davis, however, offered no alternative explanation for Applicants contraction of the disease in light of the nonexistence of any other risk factors. Although Applicants contraction of the virus may never be known with scientific certainty, Dr. Linebacks opinion and the medical literature presented by Dr. Davis provided the WCAB with substantial evidence to support a finding that it was reasonably probable that Applicants contraction of hepatitis C was industrially related.

DISPOSITION

The petition for writ of review is denied. Applicants request for sanctions is denied, but his request for attorney fees is granted. ( 5801; Crown Appliance v. Workers Comp. Appeals Bd. (2004) 115 Cal.App.4th 620, 627-628.) The cause is remanded to the WCAB to issue a supplemental award to Applicants counsel for legal services rendered in answering the petition.

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^*Before Wiseman, Acting P.J., Levy, J., and Cornell, J.

^[1] Further statutory references are to the Labor Code.

^[2] The WCJ explained in the minutes of hearing: It is noted for the record that in light of the mechanism of injury and the type of injury herein, the file has been sealed with the designation that is indicated above. At all times, when this matter is not either with the reporter or in actual litigation before the Judge, the file will be sealed and will be placed with the PJs secretary under the YYZZZ designation. Although Applicant contends the City has violated the seal by carelessly and recklessly filing documents with this court bearing his name, Applicant does not attempt to demonstrate with any legal authority that the matter remains confidential before this court. (See Cal. Rules of Court, rule 2.550(c) [[C]ourt records are presumed to be open & rule 2.550(d) [Express factual findings required to seal records].) Without sealing this courts records, we will respect the decision of the WCJ and not refer to Applicant by name.

^[3] See California Rules of Court, rule 8.494(a)(1)(B) [petition for writ of review must include the workers compensation judges minutes of hearing and summary of evidence].)