State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Nordstrom v. State of Connecticut Department of Correction

CASE NO. 5376 CRB-2-08-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 19, 2009

FREDERICK J. NORDSTROM

CLAIMANT-APPELLEE

v.

STATE OF CONNECTICUT/DEPARTMENT OF CORRECTION

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

and

GAB ROBINS OF NORTH AMERICA

ADMINISTRATOR

APPEARANCES:

The claimant was represented by Scott A. Carta, Esq., Law Offices of Leighton, Katz & Drapeau, 20 East Main Street, P.O. Box 838, Rockville, CT 06066.

The respondent was represented by Taka Iwashita, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the August 20, 2008 Finding and Award from the Commissioner acting for the Second District was heard January 23, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The following appeal deals with whether the trial commissioner properly applied § 5-142(a) C.G.S. in awarding benefits to an injured correction officer. The respondent argues the situation herein does not fall within the scope of the “special hazards” covered in the statute. We conclude that based on the record presented that this was a judgment call for the trial commissioner. We affirm the Finding and Award and dismiss this appeal.

The trial commissioner found the following facts. As the respondent did not file a Motion to Correct, we conclude that for the purposes of this appeal they are conclusively admitted. See Crochiere v. Board of Education, 227 Conn. 333, 347 (1993) cited in Stevens v. Raymark Industries, Inc., 5215 CRB-4-07-4 (March 26, 2008).

On September 28, 2006 the claimant was employed by the Department of Correction as a counselor at the J.B. Gates correctional facility. The claimant had an “open door” policy and met with inmates three quarters (¾) of the day in his 10 X 12 office, sitting behind a three-foot desk. He had a caseload of approximately 100 inmates and helped them with transactional supervision, re-entry furlough, parole questions, etc. On that date one inmate came to the claimant’s office to ask him to call his parole officer.

At this meeting the claimant declined to contact the parole officer since he had hand delivered a request to the parole officer for the inmate the day before in an attempt to facilitate the inmate’s release on parole. The inmate was concerned the recent Cheshire home invasion case would impede his release. The claimant testified that the inmate began to shout and swear and became aggressive and belligerent. The claimant further testified that he asked the inmate to leave his office but the inmate became louder and more aggressive and belligerent. The claimant testified the inmate had clenched his fists and was about three feet away from him across a desk.

Believing that the inmate posed a threat of danger and perceiving physical harm as the situation was escalating out of control, the claimant stood up quickly from his chair to get around to the other side of the desk. He had the inmate place his hands against the wall and the inmate complied with this request. In the process of doing this the claimant felt something pop in his lower back. The claimant further testified that when he got up, he yelled for an officer to come and assist since he did not have a radio. While the claimant had a body alarm, he did not activate this device. Another correction officer handcuffed the inmate and the matter was resolved. The inmate was written up for “flagrant disobedience.”

Based on those facts the trial commissioner concluded the claimant was among the class of protected workers enumerated in § 5-142(a) C.G.S. and the claimant suffered a compensable injury on September 28, 2006 while in the actual performance of his correctional officer duties. The trial commissioner found the claimant to be credible. He found the claimant’s back injury occurred due to the attempt to control the situation developing between the claimant and the inmate. Since “[r]esponding to the inmates escalating belligerent and aggressive behavior resulted in a heightened danger or peril that sometimes arises in the performance of the claimant’s job duties” the trial commissioner concluded “[t]he claimant’s injury was as a direct result of a special hazard inherent in his duties.” Finding, ¶ G and H. The commissioner awarded the claimant benefits under § 5-142(a) C.G.S.

Since the facts herein are not disputed, this becomes solely a question of whether the statute in question provides for relief in this instance. The relevant text of the statute reads as follows.

(Enumerates qualified employees) . . . sustains any injury (1) while making an arrest or in the actual performance of such police duties or guard duties or fire duties or inspection duties, or prosecution or public defender or courthouse duties, or while attending or restraining an inmate of any such institution or as a result of being assaulted in the performance of such person’s duty, or while responding to an emergency or code at a correctional institution, and (2) that is a direct result of the special hazards inherent in such duties, the state shall pay all necessary medical and hospital expenses resulting from such injury. (Emphasis added)

The respondent argues that the facts of this incident do not rise to the level of a “special hazard.” They interpret the statute as dealing exclusively with extraordinary circumstances and believe the present incident was within the ordinary scope of danger faced by correction officers. We have reviewed the most recent case opining on this statute, and cannot agree with such a stringent application of this statute.

A few years ago this panel considered the case of Nelson v. State/Judicial Department, 4783 CRB-7-04-2 (October 3, 2005). In that case this panel upheld the finding of the trial commissioner that a state marshal who was injured moving an inmate after a suicide attempt did not fall under this statute; as “the claimant’s injury is outside of the special hazards provisions of § 5-142(a).” We were reversed on appeal.

In Nelson v. State, 99 Conn. App. 808 (2007) the Appellate Court endorsed a more expansive reading of § 5-142(a) C.G.S. It offered this definition of “special hazard.”

On the basis of decisional precedent, a special hazard inherent in the job, for the purpose of satisfying § 5-142 (a), is a heightened danger or peril that sometimes arises in performing the enumerated jobs, other than the general hazard always present in those jobs, or present in events involving the general populace.

Id., at 820.

The Appellate Court concluded that in the Nelson case the claimant “was confronted with a unique or special situation not usually encountered in that job, a situation that could not be immediately diffused without further investigation.” Id. Therefore, it was determined that responding to a suicide attempt did pose a special hazard within the scope of the statute.

In the present case, the trial commissioner found that the claimant did perceive that the inmate in question posed a threat of physical harm and the situation was escalating out of control. The record does not reflect that the claimant faced this level of peril on a daily basis. Based on the record herein, we cannot find the trial commissioner’s finding inconsistent with the standard that “a heightened danger or peril” be present at the time of the injury. While we must ensure that our decisions conform to binding precedent, see Berry v. State/Dept. of Public Safety, 5162 CRB-3-06-11 (December 20, 2007), we cannot find the trial commissioner’s application of the law herein legally unsound.

The respondent argues that the “inmate’s behavior was not a special hazard” since the entire correctional facility is a “zone of danger.” Respondent’s Brief, p. 6. The Respondent also argues that unless the claimant activated his body alarm he should be barred from claiming he faced a “special hazard.” We reject this approach for two reasons. First, we find it constitutes a retrying of the facts and apart from the lack of a Motion to Correct cited previously, it would be inconsistent with Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). In addition, we note that in Nelson the Appellate Court stated that the “special hazard” statute governed injuries suffered while rendering humanitarian relief to an inmate who had tried to commit suicide. We cannot find any support in Nelson for limiting coverage when a correction officer is injured trying to defuse an unanticipated volatile confrontation.1

We find the trial commissioner in this matter reached a reasonable conclusion based on the facts presented and the binding appellate precedent. We must respect the trial commissioner’s decision making in such matters. Fountain v. Coca Cola Bottling Company, 5328 CRB-1-08-3 (February 18, 2009). Therefore, we affirm the Finding and Award and dismiss this appeal.

Commissioners Peter C. Mlynarczyk and Randy L. Cohen concur in this opinion.

1 Counsel for the respondent stated at oral argument that he believed that a completed battery of a correction officer would be the requisite event to trigger the statutory “special hazard” provision. We believe that consistent with § 1-2z C.G.S. that had the General Assembly intended to limit coverage in that fashion, the plain meaning of the statute would have stated as much. BACK TO TEXT

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