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LINDENFELD v. CITY OF RICHMOND SHERIFF'S OFFICE, et al.


LINDENFELD v. CITY OF
RICHMOND SHERIFF’S OFFICE, et al.


NOVEMBER 4, 1997
Record No. 0790-97-2

BRIAN S. LINDENFELD

v.

CITY OF RICHMOND SHERIFF’S OFFICE
AND TRIGON ADMINISTRATORS

OPINION BY JUDGE LARRY G. ELDER
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

Present: Chief Judge Moon, Judges Willis and Elder
Argued at Richmond, Virginia

Malcolm Parks, III (Christopher A. Jones; Maloney, Barr &
Huennekens, on briefs), for appellant.

William Joe Hoppe, Senior Assistant City Attorney (Office of the
City Attorney, on brief), for appellees.


Brian S. Lindenfeld (claimant) appeals an order of the
Workers’ Compensation Commission (commission) denying his claim
for benefits. He contends the commission erred when it found
(1) that his tuberculosis was an ordinary disease of life
rather than an occupational disease and (2) that he failed to
prove by clear and convincing evidence that his tuberculosis was
caused by his employment at the Richmond City Jail. For the
reasons that follow, we affirm.

I.

BACKGROUND

Claimant, a deputy sheriff, has worked at the Richmond City
Jail (jail) since 1985. In early 1992, claimant took a TB skin
test and tested "negative." In early March, 1994,
claimant took another TB skin test and this time tested
"positive." A subsequent biopsy of a lesion in his lung
revealed that he had active tuberculosis.

Believing he had contracted tuberculosis while working at the
jail, claimant filed a claim for medical benefits and temporary
total disability benefits. A deputy commissioner held a hearing.
Dr. Jack Freund, the chief physician at the jail, testified
during a de bene esse deposition about the
methods by which tuberculosis is transmitted and the course of
the disease. He testified that tuberculosis is generally
transmitted only through the inhalation of airborne droplets of
saliva or sputum from a person with an "active" case of
the disease. Unlike the common cold, tuberculosis is generally
not transmitted through contact with the skin of a person
suffering from active TB. The doctor testified that tuberculosis
would not be transmitted "[i]f someone who is active with TB
coughed or sneezed into his or her hand and then shook hands
with" a non-infected person.

Dr. Freund testified that tuberculosis is a bacterial disease
with two stages: an asymptomatic stage and an "active"
stage. A person infected with the tuberculosis bacteria remains
asymptomatic as long as his or her immune system is healthy
enough to produce macrophages that destroy the bacteria. Although
a person with asymptomatic tuberculosis will test positive for
the disease when he or she undergoes a TB skin test, these
persons are incapable of transmitting the disease to others. A
person infected with tuberculosis will develop an
"active" case — and thus be able to transmit the
disease — if his or her immune system "breaks down"
and no longer holds in check the TB bacteria living in his or her
body.

Dr. Freund testified that the incidence of tuberculosis is
greater among prison inmates than it is in the general
population. He cited two articles from the Journal of the
American Medical Association
(JAMA) reporting on the
increased incidence of tuberculosis in certain prison
populations. See M. Miles Braun, et al., Increasing
Incidence of Tuberculosis in a Prison Population
, 261 JAMA
393, 394 (1989) (stating that the incidence of tuberculosis in
New York prisons increased from less than 25 cases per 100,000
inmates from 1976 through 1979 to 105.5 per 100,000 in 1986); Government
Issues Guidelines to Stem Rising Tuberculosis Rates in Prisons
,
262 JAMA 3249, 3249 (1989) (stating that the incidence of
tuberculosis in prisons in California and New Jersey in 1987 was,
respectively, six times and eleven times greater than the
incidence of the disease in the general populations of those
states). In the latter article, John J. Seggerson, Jr., Chief of
the Division of Tuberculosis Control of the Centers for Disease
Control, explained that "[o]vercrowded and poorly ventilated
prisons are ideal environments for the spread of TB." See
Government Issues Guidelines to Stem Rising Tuberculosis Rates
in Prisons
, 262 JAMA at 2349.

Both Captain Michael Minion, the Director of Medical Services
at the jail, and Dr. Freund testified about the physical
condition of the Richmond City Jail and the incidence of
tuberculosis exposure among inmates and staff. Both agreed that
the Richmond City Jail is overcrowded and has an unsophisticated
ventilation system. The facility was designed to house a maximum
of 750 to 800 inmates; in May, 1996, its inmate population was
between 1,100 and 1,300. In addition, the section of the jail in
which the male inmates are housed does not have air-conditioning
and is ventilated only by air flowing through windows, which are
closed during cold weather, and hallways.

Captain Minion testified that he maintains statistics
regarding the incidence of tuberculosis at the jail among inmates
and employees. He testified that, in 1993 and 1994, a total of
four inmates were diagnosed with active tuberculosis, two in each
year. He also testified that twenty-six of the jail’s employees
who took a TB skin test in 1994 "converted" from TB
negative to TB positive. Fourteen more employees converted to TB
positive in 1995. Dr. Freund testified that the "conversion
rate" of jail employees from TB negative to TB positive was
higher than in the general population. Claimant was the only
employee to be diagnosed with active tuberculosis.

Claimant testified about his duties at the jail and the nature
of his contact with inmates. In between his "negative"
TB test in 1992 and October, 1994, claimant was assigned to
"shakedown" duty, which included examining the inside
of inmates’ mouths from a distance of two to three inches. During
these examinations, inmates occasionally yelled or breathed
heavily upon claimant. Since October 21, 1992, claimant worked as
the officer in charge of the property and supply section of the
jail, a job that had three components. First, claimant issued
supplies to inmates who were escorted to the property and supply
office and worked side-by-side with inmates who had been
"detailed" to assist him with unloading delivery
trucks. Second, claimant provided security in the mess hall five
days per week from 11:00 a.m. until 12:30 or 1:00 p.m. During
this time, every inmate in the jail except those held in
isolation passed through the mess hall for lunch. Third, claimant
continued to perform shakedowns of inmates once or twice a week.
His shakedown duties included the close inspection of inmates’
mouths.

Claimant testified about his known exposure to tuberculosis at
work and in public. Claimant testified that he was not aware of
ever having actual contact with an inmate suffering from
active tuberculosis during the time between his two TB tests. He
testified that jail authorities did not disclose the identities
of inmates who had active TB. Claimant also testified that he was
not aware of ever having interacted with a person infected with
active tuberculosis outside of his work at the jail. Claimant
testified that, although he had part-time jobs outside of his
employment during the relevant time period, these jobs involved
little contact with other people. He testified that he did have
contact with his family and intermittent visitors to his house
and occasionally frequented stores such as 7-Eleven and Wal-Mart.
Finally, claimant testified that, when he learned that he had
active tuberculosis, he immediately told the people with whom he
had the most contact: his four children, his girlfriend and her
children, his ex-wife, and the person who employed him to drive
the tow truck. All of these people subsequently tested negative
for tuberculosis.

Both Captain Minion and Dr. Freund testified about the
procedures established at the jail to test and treat inmates for
tuberculosis. Every inmate who enters the facility and stays long
enough is given a "TB Mantoux Skin Test" within
twenty-four to forty-eight hours after his or her arrival. The
results of these tests are obtained when the inmate is reexamined
forty?eight to seventy-two hours later. If the skin test is
positive, the inmate is subjected to an x-ray photograph of his
or her chest and a test of his or her liver function, which
diagnose the extent of the inmate’s infection. The "TB
positive" inmate is also given "prophylactic
medications for TB." Unless the chest x-ray and the liver
test indicate that an inmate has active TB, the inmate remains
housed in the general inmate population. If an inmate is
discovered to have active TB, the inmate is isolated in the
medical tier of the jail and then transferred as soon as possible
to either the Department of Corrections’ Office of Health Service
or to the Medical College of Virginia. This transfer occurs
quickly because the medical facility in the jail does not have
"respiratory isolation." While an inmate with active
tuberculosis is isolated in the medical tier awaiting transfer,
both the inmate and deputies working nearby wear a
"hepa-filter tuberculosis mask."

As a matter of practice, not every inmate entering the jail is
tested for tuberculosis. The population of the jail is transient,
and Captain Minion estimated that as many as 20,000 inmates pass
through the jail each year. Inmates who are released within
twenty-four hours of entering the jail do not receive a TB test
because they leave before the test can be administered. In
addition, the skin test is unlikely to detect TB in inmates who
are also HIV positive. The jail houses an unknown number of
inmates who are HIV positive. Any of these inmates who also
have TB are likely to produce a "false negative"
response to the TB skin test because their weakened immune
systems no longer produce the antibody upon which the skin test
relies to detect the presence of the tuberculosis in the body.

The record contains the opinions of three physicians regarding
the causation of claimant’s TB infection, only one of whom opined
to a reasonable degree of medical certainty that claimant
contracted tuberculosis while working in the jail. Dr. C.F. Wingo
of the Commonwealth’s Department of Health opined in a letter to
claimant’s attorney that "it is entirely possible that
[claimant’s] tuberculosis infection resulted from his
employment." In support of his opinion, the doctor cited the
"excessive" conversion rate of employees at the jail
from TB negative to TB positive and the fact that claimant’s
family had tested negative for the disease. Dr. Yale H. Zimberg,
who performed the biopsy of claimant’s lung and treated
claimant’s tuberculosis, opined that he did "not know the
source of [claimant’s] TB contact" and that it was possible
that claimant was exposed to the disease outside of the jail. Dr.
Freund testified that he believed to a reasonable degree of
medical certainty that it was more likely than not that the
exposure that caused claimant’s TB infection occurred while he
was working at the jail. Dr. Freund based his opinion on: (1) the
articles in the JAMA that stated that the incidence of
tuberculosis in prisons was greater than in the general
population; (2) the fact that claimant’s relatives tested
negative for tuberculosis while "there was active TB in the
jail"; (3) the high "conversion rate" of employees
in the jail from TB negative to TB positive; and (4) the
hypothetical description of claimant’s duties at the jail given
by claimant’s attorney. Dr. Freund testified that he neither
examined nor treated claimant and that he could not rule out the
possibility that claimant was infected outside of work.

Following the hearing, the deputy commissioner denied
claimant’s claim. The deputy commissioner reasoned that
claimant’s tuberculosis was an ordinary disease of life and that
the evidence did not clearly and convincingly prove that claimant
contracted tuberculosis at the jail. The deputy commissioner
stated that

[i]t is certainly reasonable to suppose that work in an
area exposing a worker to a greater chance of infection of a
certain disease in fact causes that disease. Nevertheless, .
. . it is for the legislature to act to create a presumption
that prison workers or other government employees coming into
close contact with the general public or prisoners and who
contract tuberculosis do so as a result of their employment.

Claimant appealed, and the commission affirmed. The commission
found that claimant’s tuberculosis was an ordinary disease of
life and analyzed his claim under Code ? 65.2-401. The commission
then found that claimant had not proven by clear and convincing
evidence that his tuberculosis was caused by his employment at
the jail.

II.

CLASSIFICATION OF CLAIMANT’S TUBERCULOSIS

Claimant argues that the evidence was insufficient to support
the commission’s finding that tuberculosis is an ordinary disease
of life rather than an occupational disease. We disagree.

An "occupational disease" is "a disease arising
out of and in the course of employment, but not an ordinary
disease of life to which the general public is exposed outside of
the employment." Code ?
65.2-400(A). Conversely, an "ordinary disease of life"
is a disease "to which the general public is exposed outside
of the employment." See Code ? 65.2-401. Whether a
particular condition or disease is an ordinary disease of life is
a question of fact. See Knott v. Blue Bell, Inc., 7
Va. App. 335, 338, 373 S.E.2d 481, 483 (1988). The commission’s
factual findings are binding on this Court and will be upheld on
appeal if supported by credible evidence. See Wells v.
Commonwealth, Dept. of Transp.
, 15 Va. App. 561, 563, 425
S.E.2d 536, 537 (1993) (citation omitted); Code ? 65.2-706(A).

We hold that credible evidence supports the commission’s
finding that claimant’s tuberculosis was an ordinary disease of
life to which the public is exposed outside of claimant’s
employment. See Van Geuder v. Commonwealth, 192 Va.
548, 551, 65 S.E.2d 565, 567 (1951). Two of the physicians who
expressed opinions about the nature and causation of claimant’s
tuberculosis indicated that claimant could have been exposed to
the disease outside the jail environment. Dr. Zimberg opined that
it was possible for claimant to have contracted tuberculosis
"regardless of his work environment." Dr. Freund
testified that claimant could have been exposed to tuberculosis
while walking in any public place, such as a supermarket, in
which a person with active tuberculosis discharged saliva or
sputum by sneezing. Because credible evidence supports the
commission’s finding, it is binding on appeal.

III.

CAUSATION OF CLAIMANT’S TUBERCULOSIS

Claimant next argues that the commission erred when it
concluded that his tuberculosis was not compensable as an
ordinary disease of life under Code ? 65.2-401. We disagree.

For an ordinary disease of life to be compensable under Code ? 65.2-401, a claimant must
prove by "clear and convincing evidence, to a reasonable
degree of medical certainty" that the disease (1) arose out
of and in the course of his employment, (2) did not result
from causes outside of the employment, and (3) follows as an
incident of an occupational disease, is an infectious or
contagious disease contracted in the course of the employments
listed in Code ?
65.2-401(2)(b), or is characteristic of the employment and was
caused by conditions peculiar to the employment. See Chanin
v. Eastern Virginia Medical School
, 20 Va. App. 587, 589, 459
S.E.2d 523, 524 (1995).

The commission concluded that claimant failed to prove the
first and third elements required to receive benefits under Code ? 65.2-401. Specifically,
the commission found that claimant did not prove by clear and
convincing evidence that his employment in the jail caused his
tuberculosis. "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).

The medical evidence in the record established that
tuberculosis is only transmitted through the inhalation of
airborne droplets of sputum or saliva from a person with an
"active" case of the disease. Thus, in order to prove
that he contracted tuberculosis at the jail, claimant had to
prove by clear and convincing evidence that he inhaled oral
droplets containing the TB bacteria that were discharged from an
inmate with active tuberculosis.[1]
Although the record established that claimant worked in an
environment where the chances of contracting tuberculosis were
greater than in other employments or in public, we hold that
credible evidence supports the commission’s finding that claimant
did not prove by clear and convincing evidence that he contracted
tuberculosis while working at the jail.

First, no evidence in the record directly established that
claimant was exposed to an inmate with active tuberculosis.
Claimant testified that he did not know whether he ever
personally interacted with an inmate suffering from active
tuberculosis during the time between his TB tests in 1992 and
1994.

In addition, the circumstantial evidence regarding claimant’s
potential exposure to inmates with active tuberculosis supports
the commission’s refusal to infer that claimant inhaled airborne
droplets carrying the disease while working at the jail. Claimant
testified that his duties at the jail during the relevant time
period required him to interact regularly with inmates and
included the periodic examination of their mouths from a distance
of two to three inches during "shakedown" duty. He
testified that inmates occasionally yelled or breathed heavily
upon him during these examinations.

However, the evidence of claimant’s interaction with inmates
must be considered together with the evidence regarding the
jail’s policies regarding tuberculosis and its records of
documented cases. When this is done, the totality of the evidence
in the record does not provide clear and convincing proof that
claimant was in fact exposed to an inmate with active
tuberculosis. Although some inmates carried active tuberculosis
during the time between claimant’s TB tests, none of these
inmates remained in the general inmate population for an extended
period of time. Active tuberculosis was detected in four inmates
during the relevant time period. However, pursuant to jail
policies, these inmates were isolated from the general inmate
population as soon as their tuberculosis was diagnosed. In
addition, due to small loopholes in the implementation of the
jail’s policy of testing every inmate for tuberculosis, it is
possible that some inmates lived in the general inmate population
with undetected cases of active TB. In practice, some inmates are
released from the jail before the TB skin test can be
administered to them, and Captain Minion testified that it was
possible that some of these inmates had active tuberculosis.
However, the possibility that claimant was exposed to these cases
of active tuberculosis was remote because these inmates occupied
the jail for a short interval of time and did not frequent the
areas of the jail in which claimant performed his duties.
Although inmates who had both HIV and active tuberculosis may
have eluded detection when given the TB skin test, no evidence in
the record establishes how many HIV positive inmates were in the
general population during the relevant time period.

Finally, the medical evidence also supports the commission’s
conclusion that claimant did not meet the high burden of proof
required by Code ?
65.2-401. Dr. Zimberg stated that he did not know the origin of
claimant’s tuberculosis and that claimant could have been exposed
outside of his employment. Dr. C.F. Wingo of the State Department
of Health wrote that it was "entirely possible" that
claimant contracted tuberculosis from his employment, but his
letter did not indicate that he held this opinion to a reasonable
degree of medical certainty. Although Dr. Freund testified that
he believed claimant contracted his tuberculosis at the jail, the
commission, as the trier of fact, was entitled to assign his
opinion little weight in light of the other evidence in the case,
including its conflict with the opinions of Drs. Zimberg and
Wingo. See Penley v. Island Creek Coal Co., 8 Va.
App. 310, 318, 381 S.E.2d 231, 236 (1989) (stating that
"questions raised by conflicting medical opinions will be
decided by the commission").

Claimant argues that four key facts establish as a matter of
law that he contracted his tuberculosis at the jail. First, he
cites the articles in the JAMA stating that the incidence
of tuberculosis among some prison populations in other states was
greater than the incidence of the disease in the general
population. Second, he cites the fact that the conversion rate of
employees at the jail from "TB negative" to "TB
positive" was higher than the conversion rate in the general
population in 1994 and 1995. Third, he cites the fact that all of
the people closest to him outside of his employment tested
negative for tuberculosis after he contracted the disease.
Finally, he cites the fact that he came into contact with
virtually every inmate of the jail, except those isolated from
the general population, during his lunch time security duty in
the mess hall.

Although claimant established that his risk of TB infection at
the jail was greater than in the general public and he eliminated
some possible sources of infection from outside of his employment
(which is the second element of a claim under Code ? 65.2-401), these
facts alone do not compel the conclusion that he inhaled the TB
bacteria while working in the jail. Instead, these facts merely
show through an incomplete process of elimination that claimant
may have contracted tuberculosis while at work. To hold that this
method of proof constitutes clear and convincing evidence as a
matter of law of a causal link between employment and a disease,
such as tuberculosis, that is transmitted through the general
population would effectively shift the burden to the employer
to prove that claimant contracted his disease from a source
outside of his employment. The express provisions of Code ? 65.2-401 assigning the
burden of proof by clear and convincing evidence to the employee
preclude such a conclusion. See Van Geuder, 192 Va.
at 557, 65 S.E.2d at 570.

Moreover, claimant’s reliance on his contact with inmates
while patrolling the mess hall overstates the extent of his
exposure to tuberculosis. Although claimant was in close
proximity to most of the inmate population while performing this
duty, it is unlikely that he contracted tuberculosis from this
interaction. Claimant could only contract tuberculosis by
inhaling airborne droplets of sputum or saliva from a person with
active tuberculosis. Only four cases of active
tuberculosis were detected among the inmate population during the
relevant time period. The inmates with active tuberculosis were
isolated from the general population and were prevented from
eating in the mess hall as soon as their cases were diagnosed.
Dr. Minion testified that most of the inmates with
"hypothetical" cases of active tuberculosis would have
been released from the jail before lunching in the mess hall.
Claimant testified that he could not say he ever encountered an
inmate with an active case of tuberculosis. Based on this tenuous
circumstantial evidence of exposure to airborne droplets
containing the TB bacteria at the jail, we cannot say the
commission erred when it declined to infer that claimant
contracted the disease at the jail. Compare Fairfax
County v. Espinola
, 11 Va. App. 126, 130, 396 S.E.2d 856, 859
(1990) (holding that circumstantial evidence of medical
technician’s exposure to hepatitis supported the commission’s
finding that disease was contracted at work).

For the foregoing reasons, we affirm the decision of the
commission denying claimant’s claim for benefits.

Affirmed.

 

 

FOOTNOTES:

[1] The
record established that claimant was the only employee of the
jail to suffer from active tuberculosis during the relevant time
period.