Virginia Court Says Employee’s MRSA Was Consequential Injury Related to Earlier Work-Related Dog Bite

Quoting Larson’s Workers’ Compensation Law, § 10.01, a Virginia appellate court affirmed a decision by the state’s Workers’ Compensation Commission that awarded workers’ compensation benefits to an employee who developed methicillin-resistant staphylococcus aureus (MRSA) on two separate occasions where the employee’s treating physician testified that the infections were causally related to dog bites the employee received when he entered the yard of a customer to perform swimming pool work [Aqua Leisure Pools v. Greene, 2020 Va. App. LEXIS 266 (Nov. 4, 2020)]. The physician testified the first infection was caused by the dog bite and likely made the employee a carrier of the infection. The second infection occurred following surgery to treat a hip condition that also was causally connected to the original dog bites.

Background

Greene, a pool liner installer for the employer, was attacked by a customer’s dog as Greene entered the customer’s yard. In an attempt to get away from the animal, Greene stepped up onto a small brick wall that was about one-and-a-half or two feet off the ground. The dog jumped up and bit Greene’s Achilles tendon, causing him to fall off the wall onto a “hard dirt area.” Greene landed on his left hip. He sustained two additional bites to his left wrist and left thigh before he was able to get away. In the days following, Greene only experienced pain related to the bite wounds. He did not notice any bruising or cuts on his left hip. The bite wound on his ankle eventually developed MRSA.

In a subsequent recorded statement provided to the workers’ compensation carrier, Greene described the dog attack, but did not specifically mention falling from the brick wall. Some two months after the dog attack, Greene developed pain in his groin. He described pain in the area of the thigh where he’d been bitten by the dog.

In November 2017, the Commission entered an award order providing for temporary total disability and medical benefits for the dog bites to Greene’s left wrist and ankle. On March 5, 2018, the Commission entered a stipulated order, adding the injury from the bite on Greene’s left thigh to the medical award.

Avascular Necrosis Diagnosis

In July 2018, more than 10 months after the dog incident, following MRI and CT scans, a physician diagnosed Greene with avascular necrosis in his left hip. Generally speaking, avascular necrosis is the death of a bone due to an interruption in blood supply to the bone. As the blood supply comes back, the bone softens, causing significant pain.

The physician indicated there are a number of risk factors associated with avascular necrosis, including a fracture, dislocation, or other trauma to the hip. Usually, young people will only develop avascular necrosis after a hip dislocation. Because Greene had no other risk factors, no history of injuries to his hip, and gradually developed pain, the physician determined that the most likely cause of Greene’s avascular necrosis was the “hard impact injury” Greene sustained after falling off the brick wall.

Additional MRSA – Same Profile as Before

In September 2018, the physician performed hip replacement surgery to treat the avascular necrosis. A few weeks later, Greene’s incision site from the surgery developed MRSA with the same antibiotic profile as the MRSA he developed from the dog bite to his ankle. On October 2, 2018, the physician performed a second surgery to treat Greene’s post-surgical MRSA infection.

Commission’s Findings

On April 1, 2020, the Commission held that Greene’s left hip injury was causally related to the work-related accident, that he developed causally related avascular necrosis in his left hip, and that surgical treatment of the avascular necrosis caused a MRSA infection. Specifically, the Commission found that Greene’s omission of falling off the brick wall in his recorded statement was not fatal to his claim because “his answers were not evasive” and he “failed to realize the amount of detail he should have provided.”

The Commission also credited the testimony of Greene’s treating physician, indicated that it had considered the opposing testimony of the employer’s expert, who had opined that Greene’s avascular necrosis was more likely idiopathic than caused by the fall on his hip. The Commission noted that the employer’s expert had not examined Greene, whereas Greene’s treating physician had provided treatment over an extended length of time. The employer appealed.

Appellate Court Decision

Quoting Larson, § 10.01, the appellate court stressed that under the compensable consequences doctrine, the injured employee is entitled to recovery for all medical consequences and sequelae that flow from the primary injury, as long as there is a direct, causal link between the primary compensable injury and the additional injury for which benefits are sought.

The appellate court indicated the record established that the MRSA infection Greene developed after the surgery was either a compensable consequence of the dog bite, or a compensable consequence of the surgery, which was a treatment for the injury caused by the fall. Greene’s expert found that Greene first contracted MRSA after being bitten by the dog, causing him to become a permanent carrier of the disease. The physician also determined that the same bacteria caused both of Greene’s MRSA infections because, in his opinion, the antibiotic profile of the cultures taken after the dog bite and after the surgery were “identical.” But for the original bite wound, the doctor opined that Greene would not have developed this same strain of pathogen because “he wouldn’t have had MRSA” [Opinion, p. 14].

The court concluded that the testimony of Greene’s expert established, with a reasonable degree of certainty, that the MRSA infection was causally connected to the compensable injury, either as a compensable consequence of the bite, or as a compensable consequence of the treatment for his avascular necrosis. Accordingly, the Commission did not err in determining that the post-surgical MRSA infection was a consequence of the dog bite, and the judgment of the Commission was affirmed.