Sapko v. State of Connecticut Department of Correction

CASE NO. 5335 CRB-8-08-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 23, 2009

CHRISTINE L. SAPKO, Dependent Spouse of ANTHONY SAPKO

CLAIMANT-APPELLANT

v.

STATE OF CONNECTICUT DEPARTMENT OF CORRECTION

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

and

GAB ROBINS OF NORTH AMERICA

ADMINISTRATOR

APPEARANCES:

The claimant was represented by John J. Quinn, Esq., Furniss & Quinn, P.C., 248 Hudson Street, Hartford, CT 06106.

The respondent was represented by J. Sarah Posner, 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 April 3, 2008 Finding and Dismissal of the Commissioner acting for the Eighth District was heard October 24, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Charles F. Senich.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in the instant matter appeals from the April 3, 2008 Finding and Dismissal of the Commissioner acting for the Eighth District. In that Finding and Dismissal, the trial commissioner denied the claimant’s claim for benefits as a dependent spouse pursuant to § 31-306.

The claimant is the dependent spouse of Anthony S. Sapko [hereafter decedent]. She and the decedent were the parents of two minor children. On August 18, 2006, the decedent died. The decedent’s cause of death was the result of multiple drug toxicity due to the interaction of excessive doses of oxycodone and seroquel (quetiapine). In addition to identifying the cause of death as multiple drug toxicity, the medical examiner’s report also indicated that the nature of the decedent’s death was an accident and not suicide. See ¶ k, Claimant’s Exhibit A and Claimant’s Exhibit G.

The claimant contends that the decedent’s death was causally related to his compensable workers’ compensation injury. The trial commissioner did not agree and this appeal followed. The pertinent facts are as follows. Until the time of his death, the decedent was employed as a Correction Officer for the State of Connecticut. The decedent’s employment with the State began December 8, 1995 and followed his 21 year tenure as Police Officer for the City of New Britain.

In the course of his employment as a Correction Officer, the decedent experienced four incidents which gave rise to claims for workers’ compensation benefits.1 Following the May 16, 2006 incident the decedent remained out of work due to a compensable back injury. Between March 15, 2005 through August 1, 2006 the decedent was treated for back pain by Dr. Mark Thimineur of the Comprehensive Pain and Headache Treatment Center. During the period of this treatment the decedent was prescribed various medications. The prescribed drugs included; Oxycodone, Zanaflex, Kadian, Celebrex, Roxicodone, Avinza, lidoderm patches and Duragesic. See Finding, ¶ 11. The record before the trial commissioner reflected that the Comprehensive Pain and Headache Center counseled the decedent on the proper use of the drugs prescribed for pain control and required the decedent to participate in a “controlled substances agreement.” See Finding, ¶ 12, Claimant’s Exhibit K.

Beginning in December 1999 the decedent started treatment for major depression with Dr. Edgardo Lorenzo, a psychiatrist. The decedent treated with Dr. Lorenzo until the time of his death. The week prior to his death, the decedent complained to Dr. Lorenzo of depression and racing thoughts. It was for these symptoms that Dr. Lorenzo prescribed Seroquel.

The record also indicated that, at the time of his death, the decedent’s level of oxycodone was 20 times higher than the therapeutic dosage and the level of seroquel was in excess of 5 times the therapeutic dosage. The trial commissioner found that both drugs can be taken safely if taken in proper dosages. Finding, ¶ ff. The trier then found “Mr. Sapko’s ingestion of excessive quantities of oxycodone and seroquel, though accidental, constitute a superseding cause of his death.” Finding, ¶ gg. The trial commissioner also found, “The work injuries of February 13, 2001, September 25, 2005, December 10, 2005, and May 16, 2006 were neither a substantial factor nor the proximate cause of Mr. Sapko’s death.” Finding, ¶ hh.

In her appeal the claimant argues that the trial commissioner’s conclusion that the decedent’s death was not compensable was erroneous. One of the bases of the appellant’s arguments is that the trial commissioner erred in concluding that the decedent’s ingestion of excessive dosages of oxycodone was a superseding cause of death. The claimant argues that, in effect, the trial commissioner’s conclusion is a finding and conclusion that the decedent’s death was due to his wilful or serious misconduct. The claimant contends that as the respondent did not properly assert wilful misconduct as an affirmative defense the claimant was without notice that the affirmative defense accorded to a respondent by § 31-284(a) was at issue. The claimant therefore contends that the respondent’s defense on that basis was procedurally improper and should not be permitted to stand. We disagree. We believe the trial commissioner’s findings were nothing more than a finding and conclusion consistent with proximate cause concepts under our workers’ compensation law.

Further, as this tribunal noted in Nolan v. Brennan Concrete Corporation, 11 Conn. Workers’ Comp. Rev. Op. 224, 1362 CRD-7-91-12 (November 4, 1993), dismissed for lack of final judgment, A.C. 13041 (January 5, 1994)

“By wilful misconduct is meant either intentional misconduct, that is, such as is done purposely with knowledge, or misconduct of such a character as to evince a reckless disregard of consequences to himself by him who is guilty of it.” (Citation omitted) Gonier v. Chase Companies, Inc., 97 Conn. 46, 55-56 (1921). “[W]ilful and serious misconduct means something more than ordinary negligence. . . . No misconduct which is thoughtless, heedless, inadvertent or of the moment, and none which arises from an error of judgment, can be ‘wilful and serious misconduct.’ ” Id., 56. . . . Thus, in order to determine that an employee was guilty of serious and willful misconduct causing his injuries, it is necessary to make factual findings as to (1) the nature of the misconduct, (2) the claimant’s appreciation of the risk to which he was exposing himself in engaging in the improper conduct and (3) the mental state or intent of the injured employee in engaging in the misconduct.

Applying the above to the trier’s findings and conclusions offers further support of our belief that his conclusion was not the result of an inappropriate application of the wilful and serious misconduct defense.

Claimant’s next argument is that the trial commissioner’s conclusion that the claimant’s act of ingesting excess quantities of the drugs was a superseding cause of death is a misapplication of the proximate cause analysis as it now exists under Connecticut law. The claimant points to our Supreme Court’s opinion in Barry v. Quality Steel Products, Inc., 263 Conn. 424 (2003) in which the court held that as a general rule the intervening or superseding cause theory was no longer viable under the law of negligence. The court held that the amendment to our negligence law wherein liability was subject to apportionment under the theory of comparable negligence obviated an analysis under superseding cause theory concepts. See also, Archambault v. Soneco/Northeastern, 287 Conn. 20 (2008). The claimant then argues as the law of negligence in our state no longer permits an analysis of a break in the chain of proximate causation by a superseding causal agent, application of the superseding causation theory should not be part of the proximate cause analysis under workers’ compensation law.

First we note that the law regarding proximate cause analysis in workers’ compensation matters has been and continues to be that which was recently re-uttered in our Appellate Court’s opinion in Brown v. United Technologies Corp., 112 Conn. App. 492, 498 (2009)

The personal injury must be the result of the employment and flow from it as the inducing proximate cause. The rational mind must be able to trace resultant personal injury to a proximate cause set in motion by the employment and not by some other agency, or there can be no recovery. (Internal quotation marks omitted.) Ryker v. Bethany, 97 Conn. App. 304,309, 904 A.2d 1227, cert. denied, 280 Conn. 932, 909 A.2d 958 (2006).

Secondly, our reading of Barry reflects the court’s analysis of proximate causation in a claim of negligence and where our tort law has been amended so as to apportion liability on the basis of comparable negligence. Given the strict liability concepts underpinning our Workers’ Compensation Act, we do not think that Barry applies as argued by the claimant. Brown, supra. See also, Keeney v. Laidlaw Transportation, 5199 CRB-2-07-2 (May 21, 2008).

Applying the appropriate proximate cause analysis to the instant matter we do not believe the trial commissioner erred. Essentially, the trial commissioner concludes that in the instant matter there was “some other agency” in the chain of proximate cause and that other agency was the claimant’s, accidental, ingestion of excessive quantities of prescribed medication. There is no question that the record in this matter could just have easily been construed to support a conclusion that the decedent’s death was the result of events set in motion by the decedent’s compensable injury. However, as our Supreme Court stated in Fair v. Peoples Savings Bank, 207 Conn. 535, 541 (1988)

To the extent that we have articulated a standard for reviewing a determination by a commissioner that an injury arose out of the employment, we have treated this issue as factual in nature and, therefore, have accorded the commissioner’s conclusion the same deference as that given to similar conclusions of a trial judge or jury on the issue of proximate cause. “A finding of a fact of this character [whether the injury arose out of the employment] is the finding of a primary fact. . . . This ordinarily and in this case presents a question for the determination of the commissioner and we have no intention of usurping his function.” Herbst v. Hat Corporation of America, 130 Conn. 1, 4, 31 A.2d 329 (1943). “This rule leads to the conclusion that unless the case lies clearly on the one side or the other the question whether an employee has so departed from his employment that his injury did not arise out of it is one of fact.” Id., 7-8; see also Woodley v. Rossi, 152 Conn. 1, 6, 202 A.2d 136 (1964); Gordon v. United Aircraft Corporation, 150 Conn. 328, 329, 189 A.2d 384 (1963). (emphasis ours.)

We cannot say that the conclusion reached by the trial commissioner in the instant matter lies clearly on the other side of the question. As such the trier’s conclusion will not be disturbed unless it results from an incorrect application of law, is without support in the evidence or based on unreasonable or impermissible factual inferences. Fair, supra. The trial commissioner’s conclusion therefore must stand.

We therefore affirm the April 3, 2008 Finding and Dismissal of the Commissioner acting for the Eighth District.

Commissioners Ernie R. Walker and Charles F. Senich concur.

1 The dates of the incidents were February 13, 2001, September 25, 2005, December 10, 2005 and May 16, 2006. BACK TO TEXT