CASE NO. 5581 CRB-4-10-8
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JULY 18, 2012
STATE OF CONNECTICUT UCONN HEALTH CENTER
THIRD PARTY ADMINISTRATOR
The claimant was represented by John J. D’Elia, Esq., Kennedy, Johnson, D’Elia & Gillooly, LLC, Long Wharf Maritime Center, 555 Long Wharf Drive, 13th Floor, New Haven, CT 06511.
The respondent-employer was represented by Michael J. Belzer, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, PO Box 120, Hartford, CT 06141-0120.
This Petition for Review1 from the July 19, 2010 Finding and Award of the Commissioner acting for the Fourth District was heard January 20, 2012 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Jodi Murray Gregg and Daniel E. Dilzer.
JOHN A. MASTROPIETRO, CHAIRMAN. A single issue is presented in the appeal herein: was a correctional nurse within the “special hazard” provisions of § 5-142(a) C.G.S. when she was injured at work on February 9, 2007. The trial commissioner concluded that she was within that scope of that statute and awarded her the benefits available under this statute. The respondent has appealed. While this is a very close case as to the application of law, we believe that under the facts herein the trial commissioner could reasonably determine a “special hazard” was present at the time of the claimant’s injury. We affirm the Finding and Award dated July 19, 2010.
The trial commissioner found the following facts. The claimant was the sole witness who testified at the formal hearing. She testified she was hired in October 1993 and has been employed since as a nurse at the Bridgeport Correctional Facility. She received training in prisoner transport, the secure transport of handcuffed inmates and in handling hostile situations. Her duties included assisting when inmates had to transfer to medical facilities where specialized medical care was available that could not be provided at the Bridgeport Correctional Facility. Normally, handicapped inmates were transported by way of a medical handicapped van and ambulatory inmates were transported by correction officers. She occasionally had to transport non-ambulatory inmates who could be transported by private ambulance or using a prison transport van, depending on the order of the doctor at that correctional facility.
On the day the claimant was injured, she was told a problem inmate was refusing to enter the non-handicapped accessible prisoner transport van and demanded medical personnel to help. Accompanied by her supervisor and another nurse, she was instructed to move the inmate into the van, which is normally done when inmates have their hands handcuffed and feet shackled to the wheelchair. The inmate was being moved to the McDougall Correctional Facility to finish his sentence.
The claimant moved the inmate by standing inside the van and the other two nurses stood outside. She grabbed the inmate’s body and the other two each leg and attempted to lift the paraplegic inmate, who did not assist in his own lifting, and was resisting a bit. The claimant testified that this created “dead weight” and caused her to slip and required her to attempt to lift him again to get him into the van seat. This was the first time she ever performed such a lift into a prisoner transport van as opposed to a handicapped-accessible van.
The claimant testified she did not immediately feel pain due to the excitement and nervousness of being surrounded by prisoners in the van screaming at her. She later began to feel discomfort to her back, right shoulder and neck after returning to the nursing unit. She missed two to three months from work because of the injury. She treated first at Immediate Medical Care and then came under the care of Dr. Robert Dawe, an orthopedist, at Orthopedic Specialty Group, who later referred her to Dr. Patrick Kwok of the same practice. Dr. Kwok sent her for therapy, some of which was directed at her back. A medical incident report dated February 10, 2007, notes the claimant complains of back and right shoulder pain. A separate claimant report of accident notes back pain and a possible 1999 back problem that was not treated.
The claimant presented medical reports from Dr. Dawe, who issued a February 27, 2007 report indicating cervical and thoracic injuries. A May 12, 2008 report by Dr. Dawe indicates the claimant continues to complain of back pain. Dr. Dawe on June 4, 2007, ordered physical therapy for a right rotator cuff injury, cervical sprain, and lumbar sprain. Physical therapy notes in May 2008 indicate the diagnosis was cervical and lumbar strain. Other physical therapy notes indicate the claimant was provided with a variety of lumbar spine physical therapy exercises and therapy treatments after the February 9, 2007 incident. The trial commissioner noted the respondent did not present a Respondent’s Medical Examination to contest the nature or extent of the claimed back injury.
The trial commissioner also considered a video of the event submitted as evidence. He found the video showed the claimant did not actually slip in the van, but had to bend within the van to perform the lift as she had testified.
Based on this evidence, the trial commissioner concluded the claimant was a credible witness “although at times nervous and unclear about every detail of what occurred in the van when she was injured.” Conclusion, ¶ e. While the claimant was employed by the University of Connecticut Health Center on the day of her injury, February 9, 2007, and the University of Connecticut Health Center is not specifically listed in § 5-142(a) C.G.S., the statute says any member of any correctional institution is eligible for the 100 percent hazardous duty pay provision. The trial commissioner concluded the claimant, as a nurse assigned full time to the Bridgeport Correctional Facility, qualifies under that provision of the statute. The commissioner also concluded the second prong of the statute had been satisfied as her injury was a direct result of the special hazards inherent in such duties, i.e., helping in the transport of prisoners. The commissioner also concluded the reports of Dr. Dawe and Dr. Kwok reference the claimant’s back injury and treatment after the February 9, 2007 incident; the claimant has been clear in her initial filings her back was among her injuries and the respondent offered no medical evidence countering the claim. The trial commissioner further concluded that notwithstanding the respondent’s argument that the video displayed a routine seating; that the claimant’s back injury was caused during her efforts to seat the paraplegic inmate in the non-handicapped accessible prisoner transport van and was compensable. The trial commissioner ordered the respondent to pay for necessary medical treatment and pay indemnity benefits pursuant to § 5-142(a) C.G.S.
The respondent filed a Motion to Correct. This motion challenged the commissioner’s factual finding that the prisoner in this situation had offered resistance to being transported, offered a factual challenge to the medical evidence presented, and made a legal argument that the claimant was not among the employees enumerated to be within the scope of § 5-142(a) C.G.S., as her official employer was not the Department of Correction. The trial commissioner denied this motion in its entirety. The respondent then pursued the present appeal.
The respondent makes a number of arguments in support of its appeal. They argue the statute does not cover employees such as the claimant who are not in their opinion enumerated as being covered under § 5-142(a) C.G.S. They argue that even if the claimant is among those employees who are covered by this statute, the facts of the incident do not rise to the level of being a “special hazard” which would entitle the claimant to benefits under the statute. Finally, the respondent argues, reiterating arguments made in their Motion to Correct, that the claimant failed to proffer sufficient medical evidence for her claim and that the trial commissioner should have adopted the respondent’s interpretation of the video evidence presented.
We may dispense expeditiously with the factual issues related to the respondent’s Motion to Correct. We conclude the trial commissioner did not find the evidence cited in this motion was probative or persuasive. As an appellate panel, we must defer to this judgment. See Brockenberry v. Thomas Deegan d/b/a Tom’s Scrap Metal, Inc., 5429 CRB-5-09-2 (January 22, 2010), aff’d, 126 Conn. App. 902 (2011)(Per Curiam), and Vitti v. Richards Conditioning Corp., 5247 CRB-7-07-7 (August 21, 2008). In regards to the claimant’s injuries, we note that she almost immediately reported the injury, commenced treating and lost time from work. Even assuming, arguendo, there were deficiencies in the claimant’s medical evidence, the precedent in Lee v. Standard Oil of Connecticut, Inc., 5284 CRB-7-07-10 (February 25, 2009) and Sprague v. Lindon Tree Service, Inc., 80 Conn. App. 670 (2003) supports the trial commissioner’s conclusion, as it is within the realm of common knowledge that lifting a heavy object can lead to a back injury. In light of the fact the claimant was found to be a credible witness and presented medical evidence consistent with her narrative of injury, we find no error. As for the trial commissioner’s evaluation of the videotape, we simply find that appellate review is barred by the precedent in Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). The Compensation Review Board will not usurp the fact-finder’s conclusions after evaluating such evidence, especially when the question of witness credibility is so intertwined in considering this evidence. See Burton v. Mottolese, 267 Conn. 1, 40 (2003).
We now turn to the trial commissioner’s decisions as related to the hazardous duty statute, § 5-142(a) C.G.S.2 The trial commissioner determined that the claimant was within the scope of the statute and was injured as the result of a “special hazard” encountered during her employment. This constitutes a mixed question of fact and law. We must defer to the trial commissioner’s factual findings, Fair, supra, and must provide “every reasonable presumption” supportive of the Finding and Award. Torres v. New England Masonry Company, 5289 CRB-5-07-10 (January 6, 2009). However, we must also determine if the trial commissioner has properly applied the law to the facts in this case, Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007), and can only affirm the trial commissioner’s Finding and Award if it properly applies the law.
The respondent argues that since the statute did not enumerate employees of the University of Connecticut Health Center as being within the scope of the hazardous duty statute, correctional nurses, notwithstanding whatever risk they may face in the scope of their employment, are not within the ambit of § 5-142(a) C.G.S. The respondent argues that pursuant to § 1-2z C.G.S. the omission of the claimant’s job title and employer from the enumerated employees under § 5-142(a) C.G.S., bars applicability of this statute. Respondent’s Brief, pp. 4-6. We reject this argument for a number of reasons. First, we note that such a stringent interpretation of the statute could also eliminate coverage to employees of the Department of Correction. The precise verbiage of the statute contains no mention of that agency, or the job title “correction officer.” We take administrative notice that these employees have functionally long been entitled to hazardous duty compensation. As the Supreme Court pointed out in Hummel v. Marten Transport, Ltd., 282 Conn. 477 (2007), the enactment of § 1-2z C.G.S. was not intended to overrule existing precedent. Id., 501.3
The hazardous duty compensation statute provides coverage to an employee who is a “member” of a “correctional institution.” The statute does not define the term “member.” In accord with § 1-2z C.G.S., we look to the dictionary for a “plain meaning” definition of this term. The applicable definitions herein are “a distinct part of a whole” and “one who belongs to a group or an organization.”4 The issue therefore is whether the claimant was a “member” (based on the “plain meaning” of this term) of a correctional institution, so as to be within the ambit of § 5-142(a) C.G.S. The trial commissioner concluded that “[t]he claimant, as a nurse assigned full time to the Bridgeport Correctional Facility, qualifies under that provision of the statute.” Conclusion, ¶ f. In reviewing the evidence, we find this was a reasonable conclusion.
At the formal hearing the claimant testified she had worked continuously as a correctional nurse since 1993. September 30, 2009 Transcript, p.15. She testified that she had been instructed on an annual basis on how to handcuff and escort a prisoner. Id., pp. 17-18. She further testified this was part of her job. Id., p. 18. She testified that she had worked continuously at the Bridgeport Correctional Facility since 1993. Id., p.19. She further testified her job duties included assisting correction officers when prisoners with medical issues needed to be transferred. Id., pp. 23-24. Given this factual predicate, we find that it is immaterial that the claimant’s de jure employer was the University of Connecticut Health Center. On a de facto basis the claimant was an integral part of the operation of the correctional facility and was permanently employed at this facility. We find no error in the trial commissioner’s legal conclusion that the claimant was a “member” of the correctional facility for the purposes of § 5-142(a) C.G.S.
We turn to the issue of whether a “special hazard” was present when the claimant was injured. The trial commissioner concluded that such a special hazard was present at the time of the claimant’s injury, finding the circumstances of her injury “inherent in such duties as a nurse helping cause the transport of prisoners.” Conclusion, ¶ f. The respondent argues that the circumstances of the claimant’s injury were not sufficiently fraught with peril and unusual in nature as to qualify the injury as being the result of a special hazard. We look first to the law, where we find the definition of “special hazard” encompasses a significant level of factual discretion by the trier of fact.
During the years the appellate precedent has wrestled with the appropriate definition of what constitutes a “special hazard” for the purposes of this statute. The respondent cites Bouchard v. State/Dept. of Mental Health and Addiction, 4120 CRB-8-99-9 (July 28, 2000) as setting the appropriate standard. In Bouchard this tribunal relied on Gray v. State/Fairfield Hills Hospital, 12 Conn. Workers’ Comp. Rev. Op. 279, 1476 CRB-4-92-8 (June 7, 1994), which concerned a claimant who injured himself while preventing a mentally retarded patient from falling to the floor. In Bouchard, we pointed out “the Gray panel drew a distinction between injuries due to the ordinary hazards of “attending” an inmate, which are not exceptionally hazardous, and injuries that are due to a peculiar risk associated with the claimant’s duties. ‘Such risks will generally arise either from the specific job duties assigned to the state employee or from the characteristics of the person(s) with whom the state employee works.’ Id., 282.” Bouchard, supra. We further stated “that § 5-142(a) may not be invoked unless one of the unusually dangerous aspects of a covered employee’s job directly causes his injury.” Id.
We note that we found the claimant in Bouchard, who was injured during an authorized recreational event with patients, was not injured as a result of a “special hazard.” The claimant, however, reminds us that in Gray this tribunal found the presence of a special hazard when the claimant restrained a patient’s fall. In subsequent decisions this tribunal has sought to delineate the parameters of the “special hazard” requirement. In Nelson v. State/Judicial Department, 4783 CRB-7-04-2 (October 3, 2005), rev’d, 99 Conn. App. 808 (2007), the claimant appealed a dismissal of his claim. The claimant asserted a fall incurred from slipping on blood originating from an inmate’s suicide attempt was due to a “special hazard.” We determined that as “[t]he claimant was not preventing or stopping the suicide nor was he restraining the prisoner” when the injury occurred the trial commissioner correctly decided § 5-142(a) C.G.S. did not apply to the claim. The Appellate Court reversed our decision, Nelson v. State, 99 Conn. App. 808 (2007).
The rationale of the Appellate Court in Nelson was “[o]n 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. In order to distinguish general hazards as opposed to special hazards, our court and the board have characterized the hazards present in all employments or activities as not coming within the statute.” Id., 820. The Appellate Court concluded, based on the factual circumstances in the case, that the claimant had been subject to a “special hazard” when he responded to the attempted inmate suicide. Id., 820-821.
We followed the rationale expressed by the Appellate Court in Nelson when we decided Nordstrom v. State/Dept. of Correction, 5376 CRB-2-08-9 (June 19, 2009). In Nordstrom, the claimant had sustained a back injury when he suddenly arose from a chair to confront a volatile inmate. We found “a heightened danger or peril” was present when the claimant was injured, and rejected the respondent’s arguments that either a completed battery was required under those circumstances, or that the entire prison posed a “zone of danger” negating coverage for the injury. Id.
Certainly, ordinary work injuries, even if sustained at a correctional facility, do not qualify a claimant for benefits under § 5-142(a) C.G.S. Compensable injuries under the statute require the presence of a “special hazard.” See Bouchard, supra, and Johnson v. State, 67 Conn. App. 330 (2001), also see remarks of Rep. Joseph Adamo, 34 H. Proc. Pt. 24, 1991 Sess. pp. 9068-69, cited in Gray, supra. The Gray decision states when a claimant seeks § 5-142(a) benefits for a back injury, a review of the claimant’s job duties and the specific circumstances of the injury is necessary to ascertain whether the statute applies. Id., 281-282.
The claimant in this case is a correctional nurse and the trial commissioner found “[h]er duties included assisting when inmates had to transfer to medical facilities where specialized medical care was available that could not be provided at the Bridgeport Correctional Facility.” Findings, ¶ 2c. The commissioner further found as to the circumstances of the accident that the inmate being moved offered resistance to being lifted, Findings, ¶ 2g, and the claimant was “surrounded by inmates in the van who were screaming at her.” Findings, ¶ 2i. The commissioner further found this was not a routine situation for the claimant, as “[t]his was the first time she ever performed a lift into a prisoner transport van as opposed to a handicapped-accessible van.” Findings, ¶ 2h.
These findings are consistent with the claimant’s testimony on the record. We note the trial commissioner specifically found the claimant a credible witness, Conclusion, ¶ e, and this is the commissioner’s prerogative. Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007). The claimant testified the inmate refused to get on the van with custody. September 30, 2009 Transcript, pp. 27-28. The claimant testified the inmate was resisting being lifted into the van and offered no assistance, becoming “dead weight.” Id., pp. 31-32. The claimant also testified the prisoner “was trying to make it as difficult as possible” to be lifted into the van. Id., p. 66. The claimant testified that the inmate had to be removed from his wheelchair and placed on a seat in the van, as there was no room for a wheelchair. Id., p. 33. She also testified that she had never previously lifted a prisoner in a wheelchair into a prisoner transport van. Id. The claimant testified the other inmates in the van were screaming “you’re gonna drop him” and she was nervous around the inmates, as she was the person in the van closest to the other inmates and she was “worried he might try something.” Id., pp. 34-35. The claimant testified to having almost being assaulted on an earlier occasion by an inmate. In that incident, a correction officer intervened by hitting the assailant over the head with a mop. Id., pp. 73-74. This incident caused her to “fear being in the presence of inmates. I mean, you’re never at ease when you are dealing with inmates because you don’t know what’s going to happen.” Id., p. 74.
Based on this factual predicate the trial commissioner could have reasonably concluded that moving a physically handicapped prisoner to a prisoner transport van, under the circumstances the claimant described in her testimony, was beyond the ordinary hazards of the claimant’s work at the Bridgeport Correctional facility. Had the claimant sustained a back injury performing a task she regularly performed, no “special hazard” would be present. In this instance, the evidence supports the conclusion the claimant was injured performing a task she hadn’t performed in the past in what she perceived to be a hostile environment. We must extend “every reasonable presumption in favor of the action” of the trial commissioner, Daniels v. Alander, 268 Conn. 320, 330 (2004). The trial commissioner found the circumstances of the claimant’s injury occurred contemporaneously with a “heightened danger or peril” which is the standard delineated in the Appellate Court’s Nelson decision.
We believe a sufficient quantum of probative evidence was introduced to support the trial commissioner’s finding that the claimant’s injury occurred as a result of a “special hazard.” As the claimant is among those workers within the ambit of §5-142 (a) C.G.S., we find the trial commissioner could properly award such benefits as a result of the February 9, 2007 injury. The Finding and Award is affirmed.
Commissioners Jodi Murray Gregg and Daniel E. Dilzer concur in this opinion.
1 We note that motions for postponement were granted during the pendency of this appeal. BACK TO TEXT
2 The text of the statute reads as follows:
Sec. 5-142. Disability compensation. (a) If any member of the Division of State Police within the Department of Public Safety or of any correctional institution, or any institution or facility of the Department of Mental Health and Addiction Services giving care and treatment to persons afflicted with a mental disorder or disease, or any institution for the care and treatment of persons afflicted with any mental defect, or any full-time enforcement officer of the Department of Environmental Protection, the Department of Motor Vehicles, the Department of Consumer Protection who carries out the duties and responsibilities of sections 30-2 to 30-68m, inclusive, the Office of Adult Probation, the Department of Public Works or the Board of Pardons and Paroles, any probation officer for juveniles or any employee of any juvenile detention home, any member of the police or fire security force of The University of Connecticut, any member of the police or fire security force of Bradley International Airport, any member of the Office of State Capitol Police or any person appointed under section 29-18 as a special policeman for the State Capitol building and grounds and the Legislative Office Building and parking garage and related structures and facilities and other areas under the supervision and control of the Joint Committee on Legislative Management, the Chief State’s Attorney, the Chief Public Defender, the Deputy Chief State’s Attorney, the Deputy Chief Public Defender, any state’s attorney, any assistant state’s attorney or deputy assistant state’s attorney, any public defender, assistant public defender or deputy assistant public defender, any chief inspector or inspector appointed under section 51-286 or any staff member or employee of the Division of Criminal Justice or of the Division of Public Defender Services, or any Judicial Department employee 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. If total incapacity results from such injury, such person shall be removed from the active payroll the first day of incapacity, exclusive of the day of injury, and placed on an inactive payroll. Such person shall continue to receive the full salary that such person was receiving at the time of injury subject to all salary benefits of active employees, including annual increments, and all salary adjustments, including salary deductions, required in the case of active employees, for a period of two hundred sixty weeks from the date of the beginning of such incapacity. Thereafter, such person shall be removed from the payroll and shall receive compensation at the rate of fifty per cent of the salary that such person was receiving at the expiration of said two hundred sixty weeks as long as such person remains so disabled, except that any such person who is a member of the Division of State Police within the Department of Public Safety shall receive compensation at the rate of sixty-five per cent of such salary as long as such person remains so disabled. Such benefits shall be payable to a member of the Division of State Police after two hundred sixty weeks of disability only if the member elects in writing to receive such benefits in lieu of any benefits payable to the employee under the state employees retirement system. In the event that such disabled member of the Division of State Police elects the compensation provided under this subsection, no benefits shall be payable under chapter 568 or the state employees retirement system until the former of the employee’s death or recovery from such disability. The provisions of section 31-293 shall apply to any such payments, and the state of Connecticut is authorized to bring an action or join in an action as provided by said section for reimbursement of moneys paid and which it is obligated to pay under the terms of this subsection. All other provisions of the workers’ compensation law not inconsistent with this subsection, including the specific indemnities and provisions for hearing and appeal, shall be available to any such state employee or the dependents of such a deceased employee. All payments of compensation made to a state employee under this subsection shall be charged to the appropriation provided for compensation awards to state employees. On and after October 1, 1991, any full-time officer of the Department of Environmental Protection, the Department of Motor Vehicles, the Department of Consumer Protection who carries out the duties and responsibilities of sections 30-2 to 30-68m, inclusive, the Office of Adult Probation, the Department of Public Works or the Board of Pardons and Paroles, any probation officer for juveniles or any employee of any juvenile detention home, the Chief State’s Attorney, the Chief Public Defender, the Deputy Chief State’s Attorney, the Deputy Chief Public Defender, any state’s attorney, assistant state’s attorney or deputy assistant state’s attorney, any public defender, assistant public defender or deputy assistant public defender, any chief inspector or inspector appointed under section 51-286 or any staff member or employee of the Division of Criminal Justice or the Division of Public Defender Services, or any Judicial Department employee who sustains any injury in the course and scope of such person’s employment shall be paid compensation in accordance with the provisions of section 5-143 and chapter 568, except, if such injury is sustained as a result of being assaulted in the performance of such person’s duty, any such person shall be compensated pursuant to the provisions of this subsection. 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3 We also note such an interpretation of the statute would attempt to apply the “plain meaning” rule in a manner that would lead to the sort of “bizarre or absurd results” which cannot be endorsed by an appellate panel, and “yield absurd or unworkable results.” First Union National Bank v. Hi Ho Mall Shopping Ventures, Inc., 273 Conn. 287, 291 (2005). BACK TO TEXT
4 See Webster’s II New College Dictionary © 1999, 1995, Houghton Mifflin Company, p. 683. BACK TO TEXT