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Muir v. C.R. Bard Inc.6/21/1999
Muir v. C.R. Bard, Inc.
Appeal From Berkeley County
B. Hicks Harwell, Jr., Circuit Court Judge
Heard May 11, 1999
AFFIRMED
Dale Muir brought this Workers' Compensation action alleging he contracted hepatitis C, aplastic anemia and myelodysplasia as a result of examining used foley catheters in his employment with C.R. Bard, Inc. (Bard). The Single Commissioner found Muir's illnesses compensable as occupational diseases. In addition, the Single Commissioner refused to allow Bard a credit for payments of short term and long term disability. The Full Commission and the Circuit Court affirmed. Bard appeals. We affirm.
FACTS/PROCEDURAL BACKGROUND
The Single Commissioner, Full Commission, and Circuit Court treated Muir's claim as one for occupational disease. Accordingly, we address his claim as one for occupational disease, rather than accidental injury .
In 1977, Muir began working with Davol as a Senior Quality Assurance Engineer in its Moncks Corner facility. Bard purchased Davol in the fall of 1980. Muir continued working for Bard in the same capacity as he had with Davol. As part of his job , Muir inspected failed foley catheters to determine the cause of the problem. He made visual inspections and tried to duplicate the problems. For some catheters, he had to inflate and deflate the balloon. If the balloon did not deflate, Muir would use a syringe with a needle to remove the water. For approximately thirty percent of the catheters, Muir had to dissect them using scissors or exacto knives. He would then microscopically examine the catheter to find the defect. Muir estimated he examined 12,000 to 15,000 failed catheters during his years with Bard.
Initially, the failed catheters were sent to a Bard facility in either Covington, Georgia, or Murray Hill, New Jersey. The failed catheters arrived at the customer complaint department of the Covington facility. The department packaged each catheter, gave it a number, placed it in a corrugated box, and sent it to the sterilization department to be processed. It took approximately two days for a catheter to get from the customer complaint department to the sterilization department.
The sterilization process took a minimum of three days. First, the catheter went to a preconditioning area to prehumidify it for sterilization. Then, it went through a sterilizer of ethylene oxide gas (EtO). During the first twelve years Muir worked for Bard, the catheters were processed with a blend of EtO and freon. In late 1992, Bard began using 100 percent EtO. After sterilization, the department postconditioned the catheter to allow for off-gassing of the EtO. The catheter remained in postcondition for a minimum of 24 hours. According to Elizabeth Bruette, who is the Operations Manager in charge of EtO sterilization at the Covington facility, the minimum amount of time the catheters are kept in her department is four days.
Bruette testified EtO is labeled a toxic chemical and is possibly carcinogenic. EtO is not approved by the Federal Food and Drug Administration to sterilize used and contaminated medical products. Vivian Stephens, the Field Assurance Manager at Covington, stated there were no guarantees of sterility and no way to validate sterilization. The catheter is bagged without any capability of maintaining sterility. She said they did no decontamination of the samples for fear of alleviating the defective condition. Stephens insisted no other Bard employee has contracted hepatitis C or aplastic anemia.
Approximately one to two days after the sterilization process was completed, the customer complaint department sent the
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