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Lemelin v. New Britain General Hospital

CASE NO. 3978 CRB-06-99-02



FEBRUARY 1, 2000









The claimant was represented by Mark F. Volpe, Esq., 1062 Barnes Road, P.O. Box 1946, Wallingford, CT 06492.

The employer was represented by Ralph Russo, Esq., 150 North Main Street, Manchester, CT 06040.

This Petition for Review from the February 11, 1999 Finding and Award of the Commissioner acting for the Sixth District was heard September 10, 1999 before a Compensation Review Board panel consisting of the then Commission Chairman, Jesse M. Frankl and Commissioners Angelo L. dos Santos and Amado J. Vargas.


JESSE M. FRANKL, COMMISSIONER. The respondent employer has petitioned for review from the February 11, 1999 Finding and Award of the Commissioner acting for the Sixth District. In that decision the trial commissioner found that the claimant sustained a compensable injury when she was vaccinated for hepatitis B during a post-offer physical examination. In support of its appeal, the employer argues that the claimant’s injury is not compensable because the vaccination was voluntary, and because the claimant was not yet an employee on the date of the vaccination. We affirm the trial commissioner’s decision.

The trial commissioner found the following relevant facts. On May 13, 1996, the claimant interviewed with the respondent employer for a position as a receptionist in the employer’s fertility clinic. Later that day, the claimant received a telephone call from the employer, advising her to come to the employer’s facility for a drug test and, if she passed the test, she would then undergo a physical examination. A letter dated May 15, 1996, which was received by the claimant on May 16th, stated that “(y)our starting date is May 20, 1996.” (Claimant’s Exh. B). This letter further explained: “A two part, post-offer physical examination is a condition of employment for all employees and must be satisfactorily completed before your starting date.” (Id.; See Finding ¶ 6). On May 16, 1996, the claimant underwent a physical examination at the employer’s facility, and as part of that examination she was offered a hepatitis B vaccination. The claimant testified that she asked the nurse regarding her recommendation as to whether to have the vaccination, and that the nurse replied that she recommended everybody in the hospital have the vaccination. The claimant received the vaccination at the conclusion of the physical examination.

On May 17, 1996, the claimant received a telephone call from the employer advising her to report to Human Resources at 8:00 a.m. on Monday, May 20, 1996 where she would have her orientation, meet the department, and start working. The claimant testified that she believed that May 20th was her “start date” and she did in fact start work on that date. On May 20, 1996, the claimant first began to experience swelling in her feet and ankles. The claimant testified that she had never before experienced such symptoms. The claimant’s condition worsened1 and she sought treatment on May 31, 1996 at the Occupational Health Clinic at the employer’s facility. The claimant was referred to Dr. Chung, an internist in Bristol, who referred the claimant to Dr. Formica, a rheumatologist. Dr. Formica treated the claimant with Prednisone and Ibuprofen. When Dr. Formica wanted to prescribe another medication, the claimant became concerned and sought treatment with another Dr. Chung, an internist at Hartford Hospital. The trial commissioner retroactively authorized this physician.

Dr. Chung was unable to diagnose the claimant’s condition, and she referred the claimant to Dr. Ruderman, a rheumatologist. The trial commissioner retroactively authorized Dr. Ruderman as the claimant’s treating physician. He altered her medication and her condition began to improve. Dr. Ruderman’s presumptive diagnosis was polyarthritis syndrome triggered by hepatitis B. Subsequently, in the Spring and Fall of 1997 the claimant sustained bone fractures as a result of minor falls, and a bone density test indicated that the claimant suffered from osteoporosis. Dr. Ruderman testified that in his view there was a relationship between the osteoporosis and the Prednisone which the claimant was taking, “a recognized risk factor for osteoporosis.” (Finding ¶ 34, citing Depo. at 29). Dr. Ruderman further opined that the claimant’s polyarthritis syndrome was triggered by the hepatitis B vaccination.

“The determination of whether an injury arose out of and in the course of employment is a question of fact for the commissioner.” Spatafore v. Yale University, 239 Conn. 404, 418 (1996). The power and duty of determining the facts rests on the trial commissioner as the trier of fact. This fact-finding authority “entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995) (citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994)). We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

In support of its appeal, the employer contends that there was no contract of employment at the time of the vaccination on May 16, 1996, and that her employment did not commence until May 20, 1996. We note the following:

Since workers’ compensation law is primarily interested in the question when the risks of the employment begin to operate, it is appropriate, quite apart from the strict contract situation, to hold that an injury during a try-out period is covered, when that injury flows directly from employment activities or conditions.
1 Larson & L. Larson, Workers’ Compensation Law (1999) § 26.02[6] (“Try-out Periods and Physical Examinations Before Hiring”) (emphasis added).

In the above cited treatise, the case of Laeng v. Workmen’s Comp. App. Bd., 494 P.2d 1 (1972) is presented as an example. In that case, the claimant was injured while performing an agility test for the position of a refuse crew worker, but had not yet been selected as an employee. The court held that despite the lack of a formal employment status, the claimant was an employee for the purposes of workers’ compensation. In the instant case, the claimant had already been offered the job prior to the physical examination, which was a condition of her employment. (Finding ¶ 6).

In further support of its appeal, the employer contends that the vaccination was not “incidental” to her employment. We disagree. In Smith v. Seamless Rubber Co., 111 Conn. 365 (1930), the employer offered free vaccinations against smallpox to all of its employees and their families as a public service because there was a local epidemic of smallpox. In Smith, supra, the claimant was infected as a result of the vaccination, and the trial commissioner found that “in choosing to be vaccinated, the [claimant] was not fulfilling any duty of her employment or doing any act incidental to it….” Id. at 367. Our Supreme Court explained:

Where an employer merely permits an employee to perform a particular act, without direction or compulsion of any kind, the purpose and nature of the act becomes of great, often controlling significance in determining whether an injury suffered while performing it is compensable. If the act is one for the benefit of the employer or for the mutual benefit of both an injury arising out of it will usually be compensable; on the other hand, if the act being performed is for the exclusive benefit of the employee so that it is a personal privilege or is one which the employer permits the employee to undertake for the benefit of some other person or for some cause apart from his own interests, an injury arising out of it will not be compensable.
Smith, supra, at 368-69.

In the instant case, the employer’s nurse manager testified that the offer of a hepatitis B vaccination was required by OSHA regulation. (Finding ¶ 10). Certainly, the employer, a hospital, would benefit by having its employees inoculated against various communicable diseases. Accordingly, the instant case is distinguishable from Smith, supra, where the employer’s offer of a free vaccination was not found to be a benefit to the employer. Id. at 369.

Moreover, to deprive a claimant of compensation for an injury caused by a vaccination which occurred during a post-offer physical examination, where that vaccination was recommended by the employer’s nurse, would contravene the purpose of the Workers’ Compensation Act, “which is to be liberally construed to provide coverage for employees who are injured on the job.” Muldoon v. Homestead Insulation Co., 231 Conn. 469, 483 (1994) (citation omitted). The Workers’ Compensation Act is remedial and should be construed liberally to achieve its humanitarian purpose. Id. The Supreme Court of Connecticut has repeatedly stated that the Act “is to be construed with sufficient liberality to carry into effect the beneficent purpose contemplated in that legislation, and not to defeat that purpose by narrow and technical definition.” Id. (citation omitted).

The trial commissioner’s decision is affirmed.

Commissioners Angelo L. dos Santos and Amado J. Vargas concur.

1 The claimant testified that from May 20, 1996 to May 31, 1996, the affected parts of her body included “everything, my hands, my knuckles, I couldn’t even close my fist, my wrists, I could hardly move them, my feet, I couldn’t even wear shoes anymore… my ankles, my knees, my elbows.” (Finding ¶ 15, citing 8/18/98 TR. at p. 17). BACK TO TEXT

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