Doe v. State of Connecticut Department of Correction

The claimant was represented by Nicholas W. Francis, Esq., Law Offices of Nicholas T. Kocian, P.C., 182 Collins Street, Hartford, CT 06105.

The respondent-employer was represented by Lawrence Widem, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the February 25, 2005 Finding and Dismissal of the Commissioner acting for the First District was heard September 23, 2005 before the Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Michelle D. Truglia.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant appeals from the February 25, 2005 Finding and Dismissal of the commissioner acting for the First District.1 In that Finding and Dismissal the trial commissioner dismissed the claimant’s claim that her contraction of the Hepatitis B virus arose out of and in the course of her employment.

The pertinent facts are as follows. From December of 2001 until July 2003, the claimant was employed by the Department of Correction as a mail handler. The claimant testified that in the late fall of 2002 she came into contact with a bloody tissue while sorting through a tub containing the inmates’ mail. The claimant described that the blood on the tissue was dried and that she picked up the bloody tissue by using several clean tissues. She then discarded the bloody tissue and the tissues she used to pick it up and washed her hands. It was not uncommon for the tub containers of the inmates’ mail to contain items of a personal nature in addition to actual mail.

The claimant contends that in the late fall of 2002 she experienced various health concerns including headaches, blurred vision, exhaustion and achiness. The claimant consulted her primary care physician and a neurologist. In December 2002, the claimant learned she was pregnant and as a result of routine blood work ordered by her obstetrician in February 2003 it was found that she was positive for the Hepatitis B virus.

The claimant was previously screened for the Hepatitis B virus in 1995, 1998, and 2001. These prior test results were negative for the virus. The claimant filed the instant claim contending her exposure to the Hepatitis B virus arose out of and in the course of her employment and that as a result of her Hepatitis B infection she suffered emotional distress. The claim was denied.2

The primary issue presented for review is whether the trial commissioner erred in concluding the claimant’s Hepatitis B viral infection did not arise out of and in the course of her employment. Concluding as we do, we need not consider the secondary issue of whether the trial commissioner erred in failing to award benefits for emotional distress. We find no error and affirm the conclusion of the trial commissioner.

The instant matter exemplifies the task confronted by each trial commissioner. The commissioner must evaluate conflicting testimony and decide a claimant’s entitlement to benefits. Here the claimant presented her account of the causation chain resulting in her Hepatitis B infection (i.e., in the course of her employment, utilizing several clean tissues she picked up a tissue containing dried blood and thereafter was diagnosed with Hepatitis B). The respondent’s expert opined that it is virtually impossible for someone to contract Hepatitis B on the basis of the factual scenario described by the claimant. The trier was persuaded by the testimony of the respondent’s expert, Dr. Edward Blanchette, and other evidence.

In support of her claim, the claimant proffered the April 2003 report of Dr. Marcia Trape, an occupational and environmental specialist at the UCONN Medical Center. Dr Trape opined it was possible for someone to become infected due to the contact between the virus and cracks in the person’s skin. The claimant testified that her hands were frequently dry and cracked. Findings, ¶ 16. In her report Dr. Trape stated, “it is ‘most’ likely than not that she [the claimant] acquired the disease through exposures of her non-intact skin to blood even if dried.” Findings, ¶ 32, Claimant’s Exhibit B. Dr. Trape also opined that other factors associated with the spread of Hepatitis B were not present in the claimant’s case.3 On the basis of the history provided to Dr. Trape by the claimant, Dr. Trape offered her conclusion that the claimant’s employment was the source of her Hepatitis B infection.

The respondent’s expert witness, Dr. Edward Blanchette, countered Dr. Trape’s opinion with his testimony that claimant’s handling of the bloodied tissue under the circumstances she described presented virtually no risk of Hepatitis B viral transmission. See Findings, ¶ 44.4 Dr. Blanchette is the clinical director for the Department of Correction and is a physician specializing in infectious disease. Dr. Blanchette also identified other risk factors for Hepatitis B infection such as; sexual activity with an infected person, intravenous drug use, tattooing, body piercing, blood transfusions, travel to Third World countries and hemophilia, and noted that he could not identify the cause of claimant’s Hepatitis B within the parameters of reasonable medical probability. The determination of whether the claimant’s Hepatitis B infection arose out of and in the course of her employment is a factual determination. Gomez v. Laidlaw Education Services, 4859 CRB-2-04-9 (December 15, 2005). The trial commissioner was required to weigh the opinions of the expert witnesses in this matter as well as the other evidence presented and make a determination. While the effect of the claimant’s Hepatitis B infection may have contributed to a decline in the claimant’s social and emotional well-being, the core issue the trial commissioner was asked to resolve was whether the claimant’s Hepatitis B infection was proximately caused by her employment. The burden of proof rests upon the claimant. Dengler v. Special Attention Health Svcs., Inc., 62 Conn. App. 440 (2001).

Any conclusion reached by the trial commissioner is dependent upon the weight and credibility assigned to the evidence presented and such assessments are within the discretion of trial commissioner. Id. See Gagliardi v. Eagle Group, Inc., 4496 CRB-2-02-2 (February 27, 2003), aff’d, 82 Conn. App. 905 (2004) (per curiam). We will not disturb the conclusions of the trier unless they are the result of an incorrect application of the law, without evidentiary support, or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

The trial commissioner found inconsistencies between the history the claimant provided to Dr. Marcia Trape and the evidence presented. The trier noted Dr. Trape’s report reflected the claimant was; “not trained on OSHA Blood borne Pathogens Standards,” not provided with gloves, nor offered the Hepatitis B vaccine. See Findings, ¶ 33. However, the respondent presented evidence that on March 6, 2002 the claimant attended a mandatory training class the subject of which was HIV and blood borne pathogens. See Findings, ¶ 18, June 23, 2004 Transcript, p. 27 and Respondent’s Exhibits 5, 6 and 7). The evidentiary record as to this event indicates that among the recommendations for dealing with blood borne pathogens was the use of gloves. Respondent’s Exhibit 4.

The record also indicates that gloves were to be available to staff and the claimant’s own testimony reflects she used gloves in the course of performing her duties from time to time. Findings, ¶ 10, June 23, 2004 Transcript, p.41 and Claimant’s Exhibit U. Whether the claimant was offered the Hepatitis B vaccine is an inference the trier may make on the basis of the evidence presented. We cannot say that the trier’s factual inference here was impermissible as a matter of law.

As to claimant’s exposure to other risk factors, with one exception, the claimant testified she did not engage in other behaviors identified by both experts as sources for Hepatitis B infection. The exception was claimant’s receipt of a body tattoo in 1994 and a belly button piercing in June 2002. She further testified that the tattooing and body piercing occurred in a State certified facility. The claimant essentially posits that the fact finder cannot consider her belly button piercing as a possible infection source as the tattoo parlor in which the piercing occurred was certified by the state. Certification and licensing by a regulatory body reflects a degree of oversight for which a consumer may place a certain degree of confidence in a facility’s operation. However, the mere licensing of an establishment does not in and of itself eliminate all perils and hazards that may result from transacting business with the facility.

In her brief, the appellant argues Dr. Blanchette was unable to identify the cause of claimant’s Hepatitis B within the parameters of reasonable medical probability. If we were to accept the appellant’s argument, we would impermissibly shift the burden of proof to the respondent and require it to prove that the claimant’s Hepatitis B virus infection was not caused by her employment. Such a shift in the burden of proof would be improper.

We therefore affirm the February 25, 2005 Finding and Dismissal of the Commissioner acting for the First District.

Commissioners Stephen B. Delaney and Michelle D. Truglia concur.

1 We note the appellant was granted an extension of time while this matter was pending. BACK TO TEXT

2 The risk of exposure to viruses contained in blood to Department of Correction personnel was the subject of the Supreme Court’s opinion in Doe v. State/Dept. of Correction, 268 Conn. 753 (2004). There the Court concluded that human immunodeficiency virus (HIV) constitutes an occupational disease, as defined by General Statutes § 31-275(15), for correction officers who are members of the department’s emergency response unit. BACK TO TEXT

Dr. Trape’s report states that other possible risk factors for Hepatitis B infection were excluded as the Claimant’s husband tested negative, her children all tested negative, a girlfriend who was living in the Claimant’s house at the time tested negative, the Claimant had tested negative during her previous pregnancies, and the Claimant never received blood transfusions, the Claimant never used intravenous illicit drugs, she never shared a straw for cocaine and she only obtained tattoos and body piercings in certified shops. (Claimant’s Exhibit B) BACK TO TEXT

Dr. Blanchette testified that the risk of transmission of an infectious disease such as hepatitis B from the blood found on a surface, such as a tissue, is measured by a series of risk factors:

E) Whether the exposed area of the skin was intact or encumbered with cuts, scars or sores which expose the skin below the epidermis layer;

F) The time lapse between the contact and a washing of the exposed skin with soap and water, and;

G) Whether immediate medical attention was sought at the time of exposure. BACK TO TEXT