CASE NO. 4401 CRB-4-01-6
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MAY 16, 2002
ESTATE OF JOHN DOE
STATE/DEPT. OF CORRECTION
The claimant was represented by Steven H. Cousins, Esq., 324 Elm St., Suite 201B, Monroe, CT 06468. Notice also sent to Michael Stratton, Esq., Koskoff, Koskoff & Bieder, 350 Fairfield Ave., Bridgeport, CT 06468.
The respondent was represented by Lisa Guttenberg Weiss, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the May 30, 2001 Finding and Dismissal of the Commissioner acting for the Fourth District was heard December 14, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Michael S. Miles and Stephen B. Delaney.
JOHN A. MASTROPIETRO, CHAIRMAN. The estate of the claimant/decedent has petitioned for review from the May 30, 2001 Finding and Dismissal of the Commissioner acting for the Fourth District. It contends on appeal that the trier erred by failing to find that the claimant’s alleged contraction of the Human Immunodeficiency Virus (HIV) during the course of his employment as a correctional officer constituted exposure to an occupational disease, thereby making his workers’ compensation claim timely on its face. We find no legal error, and affirm the trial commissioner’s decision.
The claimant was employed between 1986 and 1991 as a Correctional Officer at the State of Connecticut’s Bridgeport Correctional Facility. On March 17, 1993, he died as a result of Acquired Immune Deficiency Syndrome (AIDS), after allegedly contracting HIV during the course of his employment as a correctional officer. He had been a member of a special team of correctional officers that responded to major disturbances and riots. His job included having to break up fights between inmates, which occasionally exposed him to their blood. He also became involved with inmates having medical emergencies, which likewise might entail blood exposure.
Dr. Blanchette, the Clinical Director for the Department of Correction, indicated that the HIV rate for incarcerated male individuals is 1 in 20, as opposed to the 1 in 1,500 rate for non-incarcerated individuals. He stated that correctional officers were never specifically advised of an inmate’s HIV status; they were instead directed to consider everyone as potentially infected, and to take necessary precautions. The virus may be transmitted through infected blood products, semen, cervical secretions, and breast milk, according to Dr. Shanley, the Director of Infectious Diseases at UConn Health Center. Close physical contact is required, involving the direct transfer of blood across the skin or across a mucous membrane such as the eyeballs, nostrils, oral pharynx, rectum or vagina. Dr. Blanchette explained that the principal methods of HIV transmission are sexual contact, blood transfusions, intravenous drug use, needle sharing and perinatal mother-child infection through breast milk. According to the claimant, who testified by deposition on December 9, 1992, 25% of the inmates at the Bridgeport facility were intravenous drug users. Deposition, pp. 21, 37.
Both Drs. Shanley and Blanchette indicated that the highest-risk occupations for HIV infection are almost exclusively in the health care and research professions. Dr. Blanchette was unaware of any correctional officer who had contracted HIV due to work-related exposure. In terms of statistics, the trier cited Dr. Shanley’s assertion that 0.09 percent of “splash” incidents involving HIV-infected blood actually transmit HIV, while 0.3 percent of needle-stick injuries involving infected blood result in a viral transmission. See October 30, 2000 Transcript, pp. 62, 72.
The claimant was first diagnosed with HIV on April 2, 1992. A claim was filed in March 1993 asserting that his contraction of HIV and his subsequent death were caused by contact with inmates at the Bridgeport Correctional Facility. This claim was filed more than one year after any claimed work incident, and beyond one year from the claimant’s last day of employment with the Correctional Department. In order to bring his claim within the three-year statute of limitations in § 31-294c(a) C.G.S. that applies to occupational diseases, the deceased claimant’s estate argues that HIV should be considered an occupational disease for correctional officers. However, the trier found that a person is infected with HIV from a single event or exposure much like an accidental injury, as one cannot contract HIV from merely being in the regular presence of HIV-positive people. He also found that HIV infection is not peculiar to the occupation of correctional officers, nor is it due to causes in excess of the ordinary hazards of such employment. That ruling is now before us on appeal, as is the trier’s subsequent denial of the claimant’s Motion to Correct.
Section 31-294c(a) states in relevant part, “No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury, provided, if death has resulted within two years from the date of accident or first manifestation of a symptom of the occupational disease, a dependent or dependents, or the legal representative of the deceased employee, may make a claim for compensation within the two-year period or within one year from the date of death, whichever is later.” This commission lacks subject matter jurisdiction over claims that have not been filed in accordance with the time requirements of § 31-294c. Pelletier v. Caron Pipe Jacking, Inc., 13 Conn. App. 276 (1988). Thus, it is imperative that all claims be filed within the time allotted by statute.
There appears to be no dispute that the operative filing date of this claim for purposes of § 31-294c was March 17, 1993.1 As the claimant left his job with the Department of Correction in the spring of 1991, he thus needed to demonstrate that his claim qualified as an occupational disease under § 31-275(15) C.G.S. in order to invoke the extended notice period for such claims. That section defines an occupational disease as “any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such, and includes any disease due to or attributable to exposure to or contact with any radioactive material by an employee in the course of his employment.”
In order to fall within this definition, a disease does not have to be one that uniquely arises out of a particular kind of employment. Glodenis v. American Brass Co., 118 Conn. 29, 40 (1934). Rather, the conditions of the employment must result in a hazard that distinguishes that employment from the general run of occupations. Hansen v. Gordon, 221 Conn. 29, 35 (1992). There should be a proximate causal connection between the duties of the occupation in question and the disease contracted. Id. Thus, the question for the trial commissioner was, in essence, “Were the claimant’s duties as a corrections officer more likely to cause him to contract HIV than the duties of other kinds of employment carried on under the same conditions?” Biasetti v. Stamford, 250 Conn. 65, 73 (1999). If the trier had found that the evidence supported a definite relationship between the job duties of a correction officer and exposure to HIV, he would have been able to conclude that it was an occupational disease. Id., 74. Of course, matters of evidentiary credibility are solely the province of the trial commissioner, so if he was not persuaded that the claimant’s evidence was reliable or definitive enough to prove such a connection, the trier would have been justified in rejecting the claimant’s occupational disease argument. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001).
It is argued on behalf of the claimant that the trier’s finding that incarcerated individuals have a higher incidence of HIV infection than does the general population suffices to establish that the claimant’s guard duties at the prison are hazards of employment in excess of the ordinary. “Therefore, it doesn’t matter if there were other jobs where somebody could develop AIDS. It does not matter that the health care field may pose a higher risk of contracting AIDS than that of a prison guard.” Brief, p. 4. We agree with these statements insofar as they support the idea that a variety of jobs might carry with them high enough risks of exposure to the HIV virus that one would be justified in calling it an occupational disease under § 31-275(15). However, the fact that HIV is unusually prevalent in the average U.S. prison population does not lead inexorably to the notion that a correctional officer’s risk of being exposed to HIV is so high that it constitutes an occupational disease for that particular group of workers.
For example, in Hansen v. Gordon, supra, the Hepatitis B Virus (HBV) was found to be an occupational disease for dental hygienists. There, “all the expert testimony revealed that dental professionals are at an increased risk of contracting HBV because of their exposure to bodily secretions on a daily basis, as well as their use of sharp instruments that can puncture their skin, thereby allowing HBV an entree into their bodies.” Id., 38. The body of medical evidence in Hansen made it clear that dental professionals necessarily engage in conduct that places them at an inordinate risk of being exposed to the blood of others, which creates a means of contracting HBV (and, one might infer, HIV as well) that would not be found in most people’s jobs.
Here, the claimant’s case seems to have faltered in the trial commissioner’s eyes with respect to the presence of a transmission modality for HIV. Though the virus may be enough of a perceived threat to warrant the training of correctional officers in techniques that reduce the risk of being exposed to blood-borne pathogens (as became the department’s practice beginning in 1989), the trier was not persuaded that such officers were in fact likely to contract the virus by virtue of coming into high-risk contact with infected fluids, thereby elevating HIV to the level of an occupational disease. Considering the testimony of Drs. Shanley and Blanchette, it was not unreasonable for the trier to draw this conclusion from the evidence before him.
Unlike health professionals who have concerns about being accidentally pierced with infected needles, the primary concern of correction officers appears to be HIV exposure through “splash incidents”—that is, coming into contact with inmates’ potentially infected blood during the process of attempting to break up fights between inmates, as well as having substances such as excrement and urine thrown at them by unruly prisoners. See, e.g., April 24, 2000 Transcript, pp. 11-12 (testimony of Fred Poole, former Captain at Dept. of Correction); pp. 34-58 (testimony of Dr. Blanchette). Dr. Blanchette testified that sexual or parenteral exposure to HIV (direct injection of the virus into the body via needle) was far more likely to cause infection than was exposure via the presence of blood on a mucous membrane. Id., 54-55. “Not to say there’s no risk [with skin or mucous membrane contact with HIV-positive blood], because there’s always, you know, a smaller chance, but the likelihood of transmission is much, much less than parenteral.” Id., 55. Dr. Blanchette was only aware of one confirmed case of a Department of Correction employee contracting HIV through workplace exposure, and it involved a needle stick to a health care provider. Id., 49-50.
Dr. Shanley went even further in his testimony. He began by explaining the nature of the Human Immunodeficiency Virus, and how upon infection it remains with its host for the rest of the host’s life, progressively weakening the immune system by attacking a certain set of protective white cells “so that at a period of time after infection, usually [on] average eight to ten years, people begin to start showing signs of the immune deficiency and that’s when it becomes AIDS.” October 30, 2000 Transcript, p. 58. He then explained that HIV was a very fragile virus that could not survive for more than a matter of minutes in an outside environment where it might be exposed to drying agents such as air, alcohol, or liquid solvents. Id., 60. Even where something like a needle stick occurs, infection is uncommon, occurring in less than one percent of cases. Id., 62. Thus, the direct transmission into the body of infected blood products, semen, cervical secretions or breast milk is necessary in order for the virus to even have a chance to take hold in another host. Id., 59. Contrarily, sweat, saliva, urine, feces and mucus were not effective agents of transmission at all. Id., 61, 65.
Dr. Shanley then explained that “splash contact” between infected blood and dermatitic skin, chapped skin or even a small cut on a healthy individual had not been documented as a realistic mode of infection for HIV. Id., 69-70. A large laceration through which blood could readily enter the new host would normally be necessary to create a tangible risk of infection, rather than contact with a mucous membrane or moderately damaged skin. “So if somebody has a splash injury onto a mucous membrane—there’s only really been about three or four documented cases of splash injuries leading to HIV infection.” Id., 72. Further, these few infectious splash injuries were mainly suffered by laboratory technicians working with highly concentrated amounts of HIV. Id., 73-74. “[T]he studies that have been done on exposure across skin have not documented any transfer of infection. So people are making recommendations [for safety procedures such as the ones implemented by the Department of Correction] based on extreme caution rather than on data.” Id., 75.
In light of this testimony, which the trial commissioner was entitled to credit in his findings, we cannot fault the factfinder for concluding that the risk of HIV exposure through a “blood splash” was so minimal that it did not amount to an increased occupational hazard for correctional officers peculiar to that employment. Therefore, we find no error in the trial commissioner’s legal conclusion that the claimant failed to prove that HIV should be considered an occupational disease for correctional officers.
Claimant’s counsel has also raised the argument that, notwithstanding the occupational disease issue, his client’s claim should be considered timely because his death occurred within two years of the date of his last employment with the respondent. We note that this claim was not raised at trial, nor was it briefed on appeal, which makes it a very poor candidate for consideration at this time. Further, if the claimant’s counsel wished to pursue the argument that his client’s infectious exposure to HIV constituted an accidental injury within the meaning of § 31-275(16)(A) and Doe v. Stamford, 241 Conn. 692 (1997), he would appear to face an insurmountable hurdle. Section 31-294c(a) would define this claim as timely if it were filed within two years of the accidental injury, e.g., the exposure, that led to the claimant’s death. The injury would therefore have to have occurred no earlier than March 17, 1991, two years before the claimant tragically passed away; or, if one uses the July 3, 1992 notice of claim cited in n.1, supra, the injury would have to have occurred after July 3, 1990.
However, the claimant’s testimony clearly shows that he was already suffering from symptoms of HIV infection at that time, as his continuing bouts with illness during 1990 and 1991 had led to his decision to leave the Department of Correction in April 1991. Also, the medical testimony in the record indicates that HIV has a long incubation period before showing symptoms—on average, eight to ten years. Even assuming the claimant had needed only one or two years to manifest symptoms of immune deficiency, the single accidental incident of his HIV exposure would have to have occurred sometime in the late 1980’s. This claim would not be preserved under Doe, supra, by a Form 30C that was filed in 1993. In Doe, there was no dispute that the claimant’s exposures to HIV and tuberculosis resulted from two documented cases of accidental contact with infected police suspects, for which he immediately sought medical treatment, along with continued testing to determine whether he had been infected. Here, there is no similar proof that such an incident occurred within two years of the filing of either of the claimant’s Forms 30C, and no earlier compensation claim was found to have been preserved. Thus, this argument must be dismissed as well.
The trial commissioner’s decision is accordingly affirmed.
Commissioners Michael S. Miles and Stephen B. Delaney concur.
1 At the April 24, 2000 formal hearing, the claimant’s counsel explained that a claim had been filed on July 3, 1992 for his client’s contraction of the HIV virus while on the job. Transcript, p. 2. When the claimant died in March 1993, a second claim was filed, this time on account of his death from the AIDS virus. As the trial commissioner bifurcated the proceedings at the first formal hearing in order to focus on the initial jurisdictional question of whether HIV was an occupational disease for correction officers, the 1992 notice of claim became unimportant, as the 1993 notice was filed immediately after the claimant’s death, which in turn occurred well within two years of his diagnosis as HIV-positive, and was also filed within three years of his first clear manifestation of any HIV symptoms. Furthermore, the claimant’s employment with the respondent ended over a year before his 1992 notice of claim was filed, and thus that notice would not be helpful in satisfying the one-year notice requirement under an alternative accidental-injury theory. BACK TO TEXT