EMAIL TO A FRIEND COMMENT

 

No Pulmonary Benefits for Police Officer with Cystic Fibrosis For Stun Gun Injury


A workers' compensation claimant, who suffered from cystic fibrosis, petitioned for review of the decision of the Office of Administrative Hearings (OAH) that upheld the denial by the Workers' Safety and Compensation Division of benefits for treatment of pulmonary and joint symptoms that the claimant attributed to a workplace accident.

 

The claimant was diagnosed with cystic fibrosis when he was a few months old. Cystic fibrosis is an inherited chronic disease of the exocrine glands that affects the pancreas, respiratory system and sweat glands. Patients suffer from production of abnormally viscous mucous by the affected glands, usually resulting in chronic respiratory infections and impaired pancreatic function. As a child, the claimant had frequent bouts of pneumonia associated with his condition. When he became older, he used regular strenuous exercise to keep his lungs relatively free of mucous and, therefore, less susceptible to infection. Prior to the incident at issue in this case, the claimant had not had any serious lung issues for many years. Although the claimant exercised regularly, he disregarded his physicians' recommendations to use “daily Flutter therapy with compression and nebulizer” to aid in keeping his airways open.

 

The claimant was employed as a police officer by a Wyoming city police department. He was required to be certified in the use of a taser and on August 18, 2010, underwent a training session which included him being “tased.” When the taser was energized, he fell from a kneeling position onto a mat and his chest hit his left hand. He went to the emergency room, where x-rays showed his left hand was broken. The emergency room doctor prescribed pain medication and directed him to consult with an orthopedic surgeon, who recommended surgery.

 

On August 21, 2010, the claimant went back to the emergency room complaining of pain in his chest. A chest x-ray did not show any rib fractures, although there were findings consistent with cystic fibrosis. He was diagnosed with a chest contusion and prescribed additional pain medication. The next day, August 22, he returned to the emergency room complaining of “out of control” pain, and received more pain medication. The claimant underwent surgery on August 24, 2010, to pin the fractured hand.

 

On September 11, 2010, the claimant returned to the emergency room with an “awful” metallic taste causing him to feel nauseous. The emergency room physician thought the metallic taste was coming from a sinus infection or the pins in his hand. The claimant was prescribed antibiotics for the sinus infection.

 

On September 17, 2010, The claimant again visited the emergency room with complaints of joint pain, chest tightness, chills, fever, weakness, and coughing. Chest x-rays showed evidence of cystic fibrosis but were “stable from August.” He was admitted to the hospital, and a doctor treated him for the joint pain and gave him additional antibiotics and respiratory treatments. The claimant’s condition improved and he was discharged on September 21, 2010, with a diagnosis of “pneumonia, sinusitis with cystic fibrosis.”

 

Although the Division granted benefits for the medical treatment associated with his broken hand, it denied benefits for his hospitalization and associated treatment, stating that treatment for pneumonia and cystic fibrosis was not related to his work injury. The claimant disagreed with the Division's decision and requested a hearing. He stated his ailments were the result of being unable to exercise because of his broken hand. The matter was referred to the OAH for a contested case hearing.

 

At the contested case hearing, The claimant presented a report from a registered nurse in which the nurse opined that the claimant’s hospitalization was related to his work accident. The claimant also testified on his own behalf. The Division presented an expert medical opinion from a doctor who stated there was no evidence of any clinically significant injury to the claimant’s chest wall or pneumonia, and he had adult cystic fibrosis.

 

The OAH hearing officer noted, the “situation begs the question as to what caused [the claimant’s] symptoms. [The claimant] himself acknowledged he was speculating that the electricity from the tasing caused his joint pain. There was no evidence presented at [the] hearing establishing the side effects, if any, of tasing. There was no evidence presented establishing that tasing causes an onset of sinusitis or other pulmonary symptom[s]. Nor was there any evidence presented that tasing causes joint pain. Because [the claimant’s] symptoms between September 17, 2010 and September 21, 2010 do not appear to be the natural causes of tasing, medical testimony was necessary to demonstrate the required causal connection. This Office found [the claimant’s nurse witness] to be completely unqualified to render a medical opinion and her reasoning not well supported. [However,] [the Division’s medical expert] is extremely well qualified in pulmonary diagnosis and care… Even if the evidence established [the claimant] suffered from pneumonia on September 17, 2010, there was no evidence connecting this condition to the tasing on August 18, 2010.”

 

After the hearing, the OAH upheld the Division's denial of the claimant’s requests for benefits on the ground he had not met his burden of proving his hospitalization and associated treatment were causally connected to the tasing incident. The claimant petitioned the district court for review, and it affirmed the OAH decision. He then appealed to the Wyoming Supreme Court.

 

The Wyoming Supreme Court found the nurse witness did not have any specific educational background or vocational experience with cystic fibrosis or pulmonary complications. Her opinions appeared to be based only upon a review of literature covering those medical issues. The hearing examiner's refusal to recognize her opinions was, therefore, understandable. On the other hand, the hearing examiner accepted the Division’s narrow opinion that there was no evidence of chest wall injury or pneumonia. The examiner concluded this expert was “extremely well qualified in pulmonary diagnosis and care,” and that conclusion is well supported in the record.

 

The Court determined that when a single incident is alleged to have caused an injury, medical testimony may not be required to establish causation. However, this rule is limited to injuries which are “immediately and directly or naturally and probably the result of an accident.” In this case, complex issues related to cystic fibrosis, infection and the physical effects of tasing, are present making medical evidence necessary to establish causation. The claimant did not present any credible evidence that his condition was actually exacerbated by the tasing incident or his failure to exercise. The Division’s expert supported the hearing examiner's decision that the claimant did not meet his burden of proving the causal connection between the chest contusion from the tasing incident and his subsequent hospitalization. According to the Court, “The problem with his argument is that he did not prove the critical causal link with credible medical evidence.”

 

The Wyoming Supreme Court held that the claimant failed to prove that his hospitalization for pulmonary symptoms and joint pain was caused by the accident one month earlier in which the claimant, a police officer, sustained a chest contusion in a fall after being shocked by a stun gun. The denial by Workers' Safety and Compensation Division of benefits for treatment of the claimant’s pulmonary and joint symptoms was affirmed.

 

See: Hayes v. State ex rel., Wyoming Workers' Safety and Compensation Div., 2013 WL 4068182 (Wyo.  Aug 13, 2013) (not designated for publication).

 

 

REPRINTS & PERMISSIONS COMMENT