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Bouchard v. State of Connecticut/Dept. of Mental Health and Addiction

CASE NO. 4120 CRB-08-99-09

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 28, 2000

GARY BOUCHARD

CLAIMANT-APPELLEE

v.

STATE OF CONNECTICUT/DEPT. OF MENTAL HEALTH AND ADDICTION

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by James Berryman, Esq., Suisman, Shapiro, Wool, Brennan, Gray & Greenberg, P.C., 2 Union Plaza, Suite 200, P. O. Box 1591, New London, CT 06320.

The respondent was represented by Michael J. Belzer, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the September 1, 1999 Finding and Award of the Commissioner acting for the Eighth District was heard January 21, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent State of Connecticut has petitioned for review from the September 1, 1999 Finding and Award of the Commissioner acting for the Eighth District. The state contends on appeal that the trier erred by concluding that the claimant’s injury was sufficiently related to the special hazards of his job to qualify for an award of benefits pursuant to § 5-142(a). We agree with the substance of the state’s argument, and reverse the trial commissioner’s decision.

The trier found the following facts. The claimant was employed on January 13, 1998 as an RN supervisor with the Whiting Forensic Institute, which is a division of the state Department of Mental Health and Addiction Services. His duties consisted, among other things, of overseeing group meetings. He had occasionally been required to restrain inmates in the past. On the above date, the claimant sustained a serious right foot injury while playing volleyball during the course of his employment. He was participating in the game along with three other staffers and eight inmates, in accord with a policy that decreed the appropriate inmate/staff ratio. The trier found that “if there was a collision between the claimant and an inmate, at most it was a minor brush.” Findings, ¶ 3.

Section 5-142(a) C.G.S. states, “If any member of . . . any institution or facility of the Department of Mental Health and Addiction Services giving care and treatment to persons afflicted with a mental disorder or disease . . . sustains any injury (1) . . . while attending or restraining an inmate of any such institution or as the result of being assaulted in the performance of his duty and (2) that is a direct result of the special hazards inherent in such duties,” the state must pay all necessary medical expenses, as well as the worker’s full salary in the event of total incapacity. The trial commissioner found that the claimant’s volleyball activities fell within the scope of the statutory term “attending,” and further determined that his injuries were a direct result of the “special hazards” inherent in his duties. He thus ordered the respondent to pay the claimant full salary benefits for all related periods of temporary total disability. The state has appealed that decision, along with the denial of its Motion to Correct.

The most insightful method of approaching the current version of § 5-142 is to begin by examining the previous version of the statute. Until 1991, § 5-142(a) permitted compensation to be paid whenever an employee of a state institution such as Whiting Forensic was injured while attending or restraining an inmate or as the result of an assault suffered in the performance of his duties. The statute did not yet mention the “special hazards” that such duties entailed. In Lucarelli v. State, 16 Conn. App. 65 (1988), a case in which a correction officer was injured when his chair collapsed as he sat down, our Appellate Court held that § 5-142(a) did not imply that a claimant seeking benefits had to demonstrate that his duties were hazardous. “These employees, in the daily course of performing their duties, work in an atmosphere sometimes charged with emotion and stress, and face the possibility of confrontations with inmates, patients or arrestees, which confrontations often result in violence. It is not illogical that the legislature recognized this heightened risk factor in their employment and sought to provide these employees with a special benefit.” Id., 69. The court noted that the legislature, if it had so desired, could easily have limited the benefits of § 5-142 to “those situations fraught with hazard” by incorporating the terms “hazardous” and/or “special” into its language. Id., 70.

A few years later, the legislature amended the statute in that very manner by enacting P.A. 91-339. An injury must now be a direct result of the special hazards inherent in a qualifying employee’s duties for him or her to be awarded benefits. To date, the sole appellate decision interpreting the revised § 5-142(a) is Gray v. State of Connecticut/Fairfield Hills Hospital, 12 Conn. Workers’ Comp. Rev. Op. 279, 1476 CRB-4-92-8 (June 7, 1994), which concerned a claimant who injured himself while preventing a mentally retarded patient from falling to the floor. This board observed that, though the legislature clearly passed P.A. 91-339 in order to remove a perceived loophole in § 5-142(a), it did not expressly define the phrase “special hazards inherent in such duties.” Id., 281. Reading the new language in light of the Lucarelli decision, supra, the Gray panel drew a distinction between injuries due to the ordinary hazards of “attending” an inmate, which are not exceptionally hazardous, and injuries that are due to a peculiar risk associated with the claimant’s duties. “Such risks will generally arise either from the specific job duties assigned to the state employee or from the characteristics of the person(s) with whom the state employee works.” Id., 282. Because the trier had reasonably found that the claimant was “restraining” his patient when he was injured, this board affirmed his decision to award full salary benefits under § 5-142(a).

In Gray, this board consulted the legislative history of P.A. 91-339 in its attempt to discern the meaning of “special hazards.” See 34 H. Proc., Pt. 24, 1991 Sess., pp. 9068-69, remarks of Rep. Joseph Adamo. As this definition remains cloudy six years later, we will revisit the history here. Noting that the proposed amendment would require an injury to result from the special hazards inherent in an employee’s duties, Rep. Robert Farr asked if, in the case of a Department of Mental Retardation worker, this would include an assault by a patient, but not a back sprain from lifting that same patient out of a chair. His question was answered by Rep. Adamo, who stated, “All people who work in hospitals attain back injuries by lifting patients. If the back injury was obtained as a result of a belligerent or a patient who was fighting with that person, yes. If not, no.” Id., 9068-69. The conflation of this language and the circumstances of the “special hazards” amendment suggest, as we held in Gray, that § 5-142(a) may not be invoked unless one of the unusually dangerous aspects of a covered employee’s job directly causes his injury.

Applying these principles to the present case, we discover that the facts found by the trier are missing an element that is needed to support his legal conclusion. Spatafore v. Yale University, 239 Conn. 408, 419 (1996). Although the trial commissioner found that the claimant’s participation in the volleyball game of January 13, 1998 fell within the scope of his duties to attend the inmates of his facility, the fact that the hospital setting as a whole was potentially dangerous did not legally transform each act of “attending” into an inherently hazardous activity under § 5-142(a). Volleyball is a chiefly recreational game that is played in many settings, such as a high-school gym class or a company picnic. Collisions and injuries are foreseeable whenever one engages in this sport. In order to label this particular injury the product of a peculiar hazard intrinsic to his job duties, we must specify the manner in which his actions put him at greater risk than he would have been in a normal volleyball contest. In other words, the presence of potentially belligerent inmates on the court may have represented a latent threat, but the claimant had to demonstrate that this threat was realized in some manner in order to qualify for § 5-142(a) benefits.

In his findings, the commissioner presumes that this danger came to fruition without identifying how this occurred. The evidence, which primarily consists of the claimant’s deposition, does not provide this missing information. The claimant testified that he could not recall whether or not any contact with an inmate precipitated his ankle injury. Joint Exhibit 1, p. 40. He could only remember seeing the ball, attempting to reach it, and falling to the court in tremendous pain. Not once did he even suggest that the conduct of a patient caused him to tumble to the floor, other than in the attenuated sense that he would not have been playing volleyball in the first place had two additional inmates not wanted to join the game. Id., 24. That is not enough to trigger § 5-142(a).

Although there are undoubtedly various risks inherent in the claimant’s job, only one is compensated by this statute. The “specially hazardous” aspect of working with patients of the Whiting Forensic Institute is the very real risk that one could be seriously injured during a physical confrontation with a person who has been identified as suffering from some sort of mental illness, and who has engaged in socially aberrant behavior in the past. Id., 21-22. The claimant, however, was unable to state that his injury was caused by interacting with an inmate who was behaving in a manner inappropriate to the situation, or in a manner that was likely to cause the claimant physical harm. Even taking into account the trial commissioner’s authority as the finder of facts and the evaluator of evidentiary credibility; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998); the record in this case does not offer sufficient support for an award of benefits under § 5-142(a). As such, we must reverse the trier’s decision.

Commissioners Robin L. Wilson and Leonard S. Paoletta concur.

Workers’ Compensation Commission

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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