268 Conn. 753 | Conn. | 2004
Lead Opinion
Opinion
The sole issue in this appeal is whether the workers’ compensation review board (board) properly affirmed the determination by the workers’ compensation commissioner for the fourth district (commissioner) that the human immunodeficiency virus (HIV) is not an occupational disease
The following facts and procedural history are relevant to our resolution of this appeal. The decedent was employed as a state correction officer at the Bridgeport correctional facility (facility) from 1986 until 1991. In that position, the decedent was required to maintain security and ensure the safety of the public, inmates and staff within the facility. His duties of employment also included responding to medical emergencies, altercations and other disturbances. In addition to his regular duties of employment, the decedent was also a member of the emergency response unit, a special team of correction officers that responded to major disturbances and riots. When responding to such incidents, the decedent could be exposed to blood and other bodily fluids of inmates through splash incidents and other incidents that would cause contact between HIV infected body fluids of inmates and the decedent’s skin or mucous membranes.
In April, 1992, the decedent was diagnosed with HIV, and in March, 1993, he died as a result of acquired immune deficiency syndrome (AIDS). In March, 1993,
The commissioner bifurcated the proceedings in order to focus initially on the question of whether the plaintiff met the jurisdictional requirements of § 31-294c. After several hearings, the commissioner found that HIV was not an occupational disease for correction officers and, therefore, the three year limitation period for occupational diseases set forth in § 31-294c was inapplicable.
The plaintiff contends that the board improperly affirmed the commissioner’s determination that HIV does not constitute an occupational disease for correction officers. Specifically, the plaintiff claims that HIV
As a threshold matter, we set forth the standard of review applicable to workers’ compensation appeals. Filing “a notice of claim or . . . satisfaction of one of the . . . exceptions [contained in § 31-294c (c)] is a prerequisite that conditions whether the commissioner] has subject matter jurisdiction under the [Workers’ Compensation] [A]ct.” (Internal quotation marks omitted.) Kuehl v. Z-Loda Systems Engineering, Inc., 265 Conn. 525, 534, 829 A.2d 818 (2003); Figueroa v. C & S Ball Bearing, 237 Conn. 1, 5-6, 675 A.2d 845 (1996). “[B]ecause [a] determination regarding . . . subject matter jurisdiction is a question of law, our review is plenary.” (Internal quotation marks omitted.) Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410, 722 A.2d 271 (1999); Anastasio v. Mail Contractors of America, Inc., 69 Conn. App. 385, 392, 794 A.2d 1061, cert. denied, 261 Conn. 914, 915, 806 A.2d 1053 (2002).
Section 31-275 (15) defines occupational disease as “any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such, and includes any disease due to or attributable to exposure to or contact with any radioactive material by an
In the present case, we agree with the plaintiff that HIV is “peculiar to” and “so distinctively associated with the [correction officers’] occupation that there is a direct causal connection between the duties of the employment and the disease contracted.” (Internal quotation marks omitted.) Hansen v. Gordon, supra, 221 Conn. 35.
John Shanley, the director of the division of infectious diseases at the University of Connecticut Health Center, and the chair of infectious diseases and HIV for the state of Connecticut, also testified before the commissioner. Shanley testified that exposure to HIV is normally through close physical contact with blood products, semen, cervical secretions and breast milk. He further testified that in order for HIV to be transmitted from an infected individual to a noninfected individual through blood, there must be a direct transfer of blood either
As concerns occupational infection rates, Blanchette testified that he was not aware of any other correction officers who had contracted HIV through work-related exposure. He further testified that he was only aware of one confirmed case of an employee of the defendant contracting HIV through workplace exposure, and that involved a health care provider who was struck with an infected syringe during the course of her employment. Shanley testified that there are fifty-five nationwide confirmed cases of occupationally transferred HIV, and 136 probable cases, documented by the National Center for Disease Control. These cases almost entirely consist of health care and research professionals.
In the course of his employment, the decedent experienced numerous incidents when he could have come into contact with blood or other bodily secretions from inmates through splash incidents, or through other conduct by inmates that would bring the inmates’ bodily fluids into contract with the decedent’s skin or mucous membranes. Because the decedent was a member of the emergency response unit, one of his specific “duties of employment” was to break up altercations, riots, and other emergencies in which, through splash or other similar incidents, he could have come into contact with the blood and bodily secretions
In affirming the commissioner’s determination, the board stated that “the fact that HIV is unusually prevalent in the average [United States] prison population does not lead inexorably to the notion that a correctional officer’s risk of being exposed to HIV is so high that it constitutes an occupational disease for that particular group of workers.” Although this statement by the board is correct, it ignores the fact that the specific duties of employment for correction officers who are members of the emergency response unit required them not just to be in the presence of inmates with a high HIV infection rate, but to interact with them in a manner that greatly increases their risk of contracting the disease—including breaking up fights, dealing with homemade weapons, and responding to medical emergencies. Similar to the duties of the dental hygienist in Hansen, the duties of employment for members of the emergency response unit requires participation in employment activities that increase their risk of exposure to a blood borne disease. See also Doe v. Stamford, 241 Conn. 692, 700, 699 A.2d 52 (1997) (“For purposes of workers’ compensation law, the injury suffered by the claimant is the exposure to potentially fatal contagious diseases. That injury is no less real or cognizable because it was not attended by puncture or abrasion. See Arkansas Dept. of Correction v. Holybee, 46 Ark. App. 232, 235, 878 S.W.2d 420 [1994] [in case involving correction officer bitten by HIV positive inmate, claimant’s injury was not merely bite wound but also risk of infection); Jackson
Therefore, in the present case, the decedent’s HIV infection constitutes an occupational disease because his employment as a correction officer in the emergency response unit was more likely to cause this disease “than would other kinds of employment carried on under the same conditions.” Madeo v. I Dibner & Bro., Inc., supra, 121 Conn. 667; Biasetti v. Stamford, supra, 250 Conn. 73. Other occupations conducted within the facility may not have the same level of risk due to different duties of employment. A janitor, for example, although working with the correction officer in the same facility, does not face the same level or risk of infection because of differing duties of employment. Although both are surrounded by inmates with a high infection rate, the janitor’s duties of employment presumably do not require intimate physical contact with the inmates. The correction officer’s duties of employment, however, distinctly require intimate physical contact with the inmates, often in situations where blood and other bodily fluids that transmit HIV are present. This distinction is enhanced in the present case due to the decedent’s involvement with the special response unit. Furthermore, at the time the decedent was working as a correction officer, there was not extensive knowledge of HIV and its causes, nor the necessary safety precautions that the defendant employs today.
Our conclusion in the present case is guided by, and consistent with, our prior decisions on occupational diseases. Compare Biasetti v. Stamford, supra, 250 Conn. 73 (post-traumatic stress disorder was occupational disease for police officer involved in gun battle, which is peculiar to that occupation) and Hansen v.
As Professor Larson’s treatise on workers’ compensation law indicates: “All states now provide general compensation coverage for occupational diseases. For the purpose of defining the affirmative inclusion of disease within this term, the older definition distinguishing occupational disease from accident has been largely abandoned, with its stress on gradualness and on prevalence of the disease in the particular industry. Jurisdictions having general coverage of occupational disease now usually define the term to include any disease arising out of exposure to harmful conditions of the employment, when those conditions are present in a peculiar or increased degree by comparison with employment generally. Thus, even a disease which is rare and which is due to the claimant’s individual allergy
The defendant claims, however, that the facts found by the commissioner indicate that of all of the prior cases of occupational infection, only one involved a profession outside the fields of health care or research. In essence, the defendant argues that the lack of previous HIV infections among correction officers demonstrates that the commissioner properly found that HIV is not an occupational disease for that profession. We
In addition, the defendant claims that concluding that HIV is an occupational disease of correction officers would turn the workers’ compensation system into a general health benefit and insurance program, in direct contravention of this court’s decision in Hansen v. Gordon, supra, 221 Conn. 32, as well as the intent of our legislature. We disagree.
In Hansen, this court stated that “the legislature did not intend to impose upon the employer liability for diseases contracted outside the work place, or to transform the Workers’ Compensation Act into a general health and benefit insurance program that would compensate an employee for all contagious diseases.” Id. In the present case, the commissioner bifurcated the proceedings, and addressed only the jurisdictional question posed by § 31-294c. Because the commissioner found that the plaintiff had not met the jurisdictional provisions of that section, he was without jurisdiction to hear the plaintiffs claim, and causation was never addressed. See Discuillo v. Stone & Webster, supra, 242 Conn. 577 (concluding that, for commissioner to have jurisdiction over claim, claim must fit within jurisdictional provisions of General Statutes § 31-294, which was later repealed, and its jurisdictional provisions were recodified at § 31-294c). Had the commissioner found, as a jurisdictional matter, that the decedent’s
In Kolomiets v. Syncor International Corp., 252 Conn. 261, 266, 746 A.2d 743 (2000), we reiterated “the general test for compensability under our workers’ compensation system. It is an axiom of [workers’] compensation law that awards are determined by a two-part test. The [claimant] has the burden of proving that the injury claimed arose out of the employment and occurred in the course of the employment. There must be a conjunction of [these] two requirements ... to permit compensation. . . . The former requirement relates to the origin and cause of the accident, while the latter requirement relates to the time, place and [circumstance] of the accident.” (Internal quotation marks omitted.) Accordingly, a holding recognizing that HIV is an occupational disease for correction officers like the decedent here would not confer an automatic award of workers’ compensation benefits upon the plaintiff, or upon any correction officer who has contracted HIV. Rather, on remand to the commissioner, the plaintiff still would have to establish that the decedent’s HIV infection arose both “out of’ and “in the course of’ his employment as a correction officer in the emergency response unit. In other words, the plaintiff would have to show that the decedent’s HIV infection actually was caused by his employment as a correction officer in that unit, and not another source. See Hansen v. Gordon, supra, 221 Conn. 38 (affirming award “because the claimant has proven that HBV arose out of and in the course of her employment, and that HBV is an occupational disease for a dental hygienist” [emphasis added]). Therefore, the defendant’s claim that the result reached in the present case will turn the workers’ compensation system into a general insurance program is without merit.
In this opinion BORDEN, KATZ and PALMER, Js., concurred.
General Statutes § 31-275 (15) defines “ ‘[occupational disease’ ” as “any disease peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such, and includes any disease due to or attributable to exposure to or contact to radioactive material by an employee in the course of his employment.”
General Statutes § 31-294c (a) provides in relevant part: “No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be . . . .”
Because the commissioner found that the plaintiff had not met the jurisdictional provisions of § 31-294c, he was without jurisdiction to hear the plaintiffs claim, and the question of whether the decedent’s contraction of HIV arose out of and in the course of his employment was never addressed. Accordingly, that issue is not before us in this appeal.
We need not, and do not, decide whether HIV is an occupational disease for correction officers who are not members of the emergency response unit.
The dissent claims that this conclusion was reached by improperly relying “on Hansen and its progeny” and by “collaps[ing] what has been a two part
Both Shanley and Blanchette testified that the occupations in which people are at increased risk of being infected with HIV are almost exclusively in the health care and research professions.
According to Shanley’s testimony, while blood, semen and cervical secretions are effective agents of transmission for HIV, other bodily secretions, such as sweat, saliva, urine and feces, are highly ineffective agents of transmission.
In addition to testimony from the decedent on the hazards faced by correction officers through their employment duties, testimony was also given by John Tarascio, the warden of the facility, Fred Poole, a captain with the defendant, Sandra Tanguay, the operational administrator at the University of Connecticut Health Center, Correctional Managed Health Care, Sandra Zawada, a captain with the defendant, and Anndean Kmetz, a lieutenant with the defendant. These witnesses all offered testimony on, among other things, the employment duties for correction officers in defendant’s facilities, including breaking up fights, exposure to blood, having feces and other bodily secretions thrown at them, and incidents with inmates wielding homemade weapons.
The dissent’s conclusion that “the risk of IIIV exposure from a splash incident is so minimal, fortunately, that it is not an increased hazard of employment” improperly focuses on the prevalence of a disease rather than 1he causal connection between the duties of employment and the disease. This approach is not only contrary to the national trend recognized in Professor Larson’s treatise, but was rejected previously by this court in LeLenko v. Wilson H. Lee Co., supra, 128 Conn. 505, and Hansen v. Gordon, supra, 221 Conn. 38. More specifically, in support of its conclusion the dissent cites language in Glodenis v. American Brass Co., 118 Conn. 29, 41, 170 A. 146 (1934), stating 1hat, “[ejvidence that lead poisoning would not naturally result from that particular kind of employment and that the hazard from it in that employment was not beyond that incident to employment in general would be proper. The fact that there were no known cases of lead poisoning among casters in other factories of the defendant where the same kind of work was being carried on as in that at Waterbury would be relevant and material.” In this court’s subsequent opinion in LeLenko v. Wilson H. Lee Co., supra, 505, however, this court expressly rejected a claim that a disease must be one which is “usual or generally recognized” for the occupation, and explained that “[a] careful consideration of the question now before us negatives any inference to the contrary which might be drawn from our decisions in the Glodenis and Madeo cases.” See also Hansen v. Gordon, supra, 221 Conn. 36 (noting that workers’ compensation review division construes statutory definition of occupational disease simply to refer to concepts of proximate causation).
It is noteworthy that, in 1989, the defendant promulgated administrative directive 8:11, which requires mandatory training, education, prevention and tracking of possible exposure to HIV. Specifically, administrative directive 8:11 established procedures for providing correction officers with training and procedures for providing correction officers with training and safety equipment such as protective rubber gloves and one-way respirators for administering cardiopulmonary resuscitation. Implicit in the defendant’s issuance of this directive is a recognition that correction officers face a heightened risk of HIV infection.
Concurrence Opinion
concurring. I concur in the majority’s judgment that human immunodeficiency virus (HIV) “is an occupational disease for correction officers who, like the decedent, are members of the defendant’s correctional emergency response unit, and that, therefore, the plaintiffs notice of claim was timely filed under § 31-294c.” I write separately to express my disagreement with the majority’s determination that it need not decide in this case whether HIV is an occupational disease for correction officers who are not members of the emergency response unit.
The majority agrees with the workers’ compensation review board’s determination that “the fact that HIV is unusually prevalent in the average [United States] prison population does not lead inexorably to the notion that a correction officer’s risk of being exposed to HIV is so high that it constitutes an occupational disease for that particular group of workers.” The majority concludes, however, that the board improperly ignored “the fact that the specific duties of employment for correction officers who are members of the emergency response unit [require] them not just to be in the presence of inmates with a high HIV infection rate, but to interact with them in a manner that greatly increases their risk of contracting the disease—including breaking up fights, dealing with homemade weapons, and responding to medical emergencies.” Because the record shows that all correction officers, not only those who also serve in the emergency response unit, are
In a deposition subsequently entered as an exhibit in the workers’ compensation commission hearing, the decedent testified that he worked as a correction officer in the maximum security prison area for approximately one year
The decedent stated that he had been exposed to inmates’ blood on several occasions when he had intervened during fights. On one particular occasion in 1986,
Further testimony before the workers’ compensation commissioner (commissioner) at the hearing bolsters the decedent’s claim that, as a correction officer, he was subject to a high risk of exposure to inmates’ blood. Fred Poole, a captain with the department of correction, worked at the Bridgeport correctional center from 1981 through 1987. He stated that it was common for correction officers to come into contact with inmates’ bodily fluids, especially blood, when they responded to fights. Not all of these officers were members of an emergency response unit.
Edward Blanchette, the clinical director for the defendant department of correction since 1990, testified that correction officers are frequently called upon to break up inmate fights, which occasionally expose the officers to blood. He estimated that, on average, he responds two or three times per week to incidents involving bodily fluids and blood contact from fights in the inmates’ quarters. He stated that “blood contact where an officer is involved [in] breaking up a fight and there’s blood being spilled ... or the officer has been cut and blood is an issue” is considered a “significant
The commissioner’s factual findings also bolster the proposition that the decedent, while serving as a correction officer, before he joined the emergency response unit, was at high risk of exposure to inmates’ blood. The commissioner determined that the decedent’s “duties as a correctional officer required him to maintain [the] security and safety of the public, inmates, and staff and to respond to emergency codes and break up fights.” (Emphasis added.) In addition, the commissioner concluded that “[correctional officers could be exposed to blood and bodily fluids of inmates during the course of their employment.” (Emphasis added.) The commissioner also concluded that, while serving as a correction officer, the decedent would “break up fights between inmates” and “could also get involved with inmates who were having medical emergencies” and that therefore he “could be exposed to their blood. ” Although it found that the decedent “was a member of a special team of correctional officers that responded to major disturbances and riots,” the commissioner did not conclude in his factual findings that the decedent was potentially exposed to inmates’ bodily fluids only while responding to incidents as an emergency
Finally, even the majority concedes that the decedent’s employment duties as a correction officer required him to respond “to medical emergencies, altercations and other disturbances” and that a “correction officer’s duties of employment . . . distinctly require intimate physical contact with the inmates, often in situations where blood and other bodily fluids that transmit HIV are present.” The majority also concludes, and I agree, that the decedent’s risk of exposure to such situations was increased by his involvement with the special response unit. The fact that the risk was increased for special response unit members does not mean, however, that the risk was not sufficiently high to constitute an occupational disease for correction officers who were not part of a special response unit.
Given the evidence presented at the workers’ compensation hearing that intimate interaction with inmates is an employment responsibility for all correction officers, coupled with the commissioner’s factual findings regarding that evidence, I disagree with the majority’s decision to limit its holding that HIV is an occupational disease for correction officers solely to those officers who are also members of the emergency response unit. I note that the parties in this case, the workers’ compensation commissioner and the workers’ compensation review board, considered the issue as involving all correction officers, not only officers who ar e emergency response unit members. I do not believe that it is appropriate for this court to create a subclassification within the class of correction officers when no one has advocated that position and it is not compelled by the evidence.
Assume, hypothetically, that two correction officers, only one of whom is also an emergency response unit
The decedent stated that he was employed as a “line officer” for his entire term of service with the department of correction. He explained that a “line officer” is a correction officer who deals “one-on-one with the . . . inmate population.”
The decedent explained that his duties as a correction officer were not altered, but rather supplemented, after he received his emergency response unit training. He stated that he was “a regular officer by day and, as needed ... [an emergency response unit] member by night.”
The decedent stated that a “cell shakedown” consisted of “having any inmate that may be in the cell at the time removed from the cell [and] patted down for any weapons [and] illegal contraband within the jail.”
Sandra Tanguay, a registered nurse employed by the department of correction as a nurse educator, also explained that correction officers may experience “significant exposure” to “blood-to-blood contact should they be breaking up a fight.”
Blanchette explained that this figure was limited to employees, including correction officers and guards, who were not in the health care field.
Dissenting Opinion
joins, dissenting. I respectfully disagree with the majority’s conclusion that human immunodeficiency virus (HIV) constitutes an occupational disease, as defined by General Statutes § 31-275 (15), for correction officers, such as the plaintiffs decedent, employed by the defendant, the department of correction (department), as members of the department’s emergency response unit. After a careful review of our prior decisions, I conclude that the majority, by focusing on causation to the exclusion of an increased risk of contraction, interprets the statutory definition too narrowly. Because the undisputed evidence before the workers’ compensation commissioner for the fourth district (commissioner) was that only one department employee in Connecticut has contracted HIV through workplace exposure, and that exposure was the result of a needle stick, I must conclude that correction officers who are members of the emergency response unit are not at an increased risk of contracting HIV. Accordingly, I further conclude that HIV is not an occupational disease for these correction officers. I therefore dissent.
Prior to this court’s decision in Hansen v. Gordon, 221 Conn. 29, 602 A.2d 560 (1992), on which the majority relies, this court has had numerous opportunities to consider the statutory language at issue in this appeal. This court first analyzed the definition of an occupational disease
Two years later, then Chief Justice Maltbie, the author of the Glodenis majority opinion, again addressed the issue in Madeo v. I. Dibner & Bro., Inc., supra, 121 Conn. 664. In that case, the plaintiff, a dressmaker, unsuccessfully sought to characterize tuberculosis as an occupational disease. Referencing the Glodenis court’s definition, this court stated that, “[tjhis definition requires that, to constitute an occupational disease, the disease must be a natural incident of a particular kind of employment, one which is likely to result from that employment because of its inherent nature. It does not include a disease which results from the peculiar conditions surrounding the employment of the claimant in a kind of work which would not from its nature be more likely to cause it than would other kinds of employment carried on under the same conditions.” (Emphasis added.) Id., 667.
This court further explained its interpretation of the definition of an occupational disease in LeLenko v. Wilson H. Lee Co., supra, 128 Conn. 499-500, in which a linotype operator claimed that dermatitis constituted an occupational disease. In affirming the trial court’s conclusion that, as it pertained to linotype operators, dermatitis constituted an occupational disease, this court stated that, “[w]hen we referred in [Glodenis and Madeo] to disease as being a ‘natural’ incident of the employment, we used that word in the sense that we have used it in defining proximate causation . . . .” (Citation omitted.) Id., 505.
In Hansen v. Gordon, supra, 221 Conn. 38, this court concluded that hepatitis type B virus (hepatitis B) constituted an occupational disease as to dental hygienists.
Most recently, in Biasetti v. Stamford, 250 Conn. 65, 73, 735 A.2d 321 (1999), we concluded that “[a] gun battle ... is not a common occurrence in most of the working world.” (Internal quotation marks omitted.) Thus, “it can be said that the plaintiffs [post-traumatic stress disorder/combat fatigue syndrome] was an occupational disease because his job and experiences as a police officer were more likely to cause this stress disorder than would other kinds of employment carried on under the same conditions.” (Emphasis added; internal quotation marks omitted.) Id.
This brief survey of our case law reveals that since 1936, we have consistently stated that an occupational disease must be a “ ‘natural’ incident of the employment”; LeLenko v. Wilson H. Lee Co., supra, 128 Conn. 505; and must create “a hazard which distinguishes it from the usual run of occupations and is in excess of that attending employment in general.” (Emphasis added.) Glodenis v. American Brass Co., supra, 118 Conn. 40-41.1 construe this language as contemplating consideration of both causation and increased risk.
The majority, by relying on Hansen and its progeny, concludes that HIV is “ ‘peculiar to’ ” and “ ‘so distinctly associated with the [correction officers’] occupation that there is a direct causal connection between the duties of the employment and the disease contracted.’ ” I believe that by focusing on our case law emphasizing causation, the majority collapses what has been a two part analysis into a single inquiry into causation and fails to explore adequately whether correction officers who are members of the emergency response unit are at an increased risk of contracting HIV.
The present case is factually distinguishable from Hansen, because, in Hansen, “all the expert testimony revealed that dental professionals are at an increased risk of contracting [hepatitis B] because of their exposure to bodily secretions on a daily basis, as well as their use of sharp instruments that can puncture their skin, thereby allowing [hepatitis B] entry into their bodies.” (Emphasis added.) Hansen v. Gordon, supra, 221 Conn. 38. Given this undisputed expert testimony, the Hansen court did not need to address whether dental hygienists were more likely to contract hepatitis B due to their employment. Such is not the case here. The record reveals no expert consensus regarding a correction officer’s risk of contracting HIV. Therefore, before
The expert testimony cited by the majority simply does not support its conclusion that “the decedent’s HIV infection constitutes an occupational disease because his employment as a correction officer in the emergency response unit was more likely to cause this disease than would other kinds of employment carried on under the same conditions.” (Internal quotation marks omitted.) Specifically, I believe that the majority unduly discounts the highly probative fact that the only work-related HIV infection in the correction department involved a health care provider infected by a needle stick. It is undisputed that health care providers are at an increased risk of contracting HIV due to their routine collection of blood and bodily fluids for diagnostic purposes, as well as their systematic handling of syringes, needles, and other sharp instruments that could lead to potential blood-to-blood contact. By contrast, in the course of their duties, correction officers who are part of the emergency response unit may be exposed to blood and bodily fluids via splash incidents, which occur when the blood or bodily fluid of an infected person comes into contact with the skin or mucous membrane of a noninfected individual. As the majority notes, however, the statistical HIV infection rate for splash incidents involving HIV infected blood is 0.09 percent, while the infection rate for needle stick injuries is 0.3 percent. Thus, a splash incident is substantially less likely to result in transmission of HIV than a needle stick, and emergency response correction officers are much less likely to contract HIV than health care workers. I therefore agree with the compensation review
My conclusion that, on the facts of the present case, correction officers who are members of emergency response units are not at an increased risk for HIV infection is buttressed by the facts of Biasetti v. Stamford, supra, 250 Conn. 73, in which a police officer contracted post-traumatic stress disorder/combat fatigue syndrome following a “gun battle.” Biasetti, I believe, is illustrative of the proper factual foundation for concluding that an occupation creates an increased risk of contracting a disease. A “gun battle,” in the employment context, is exclusive to those professions that utilize firearms in the regular course of their employment, namely, law enforcement officials and military personnel. In other words, the use of firearms, a necessary tool of law enforcement, makes post-traumatic stress disorder/combat fatigue syndrome more “likely to result from that employment because of its inherent nature.”Madeo v. I. Dibner & Bro., Inc., supra, 121 Conn. 667. The present case is factually distinguishable from Biasetti because there is nothing inherent in the duties of correction officers who serve on emergency response units that makes them more likely to contract HIV than “other kinds of employment carried on under the same conditions.” Id.
Finally, I disagree with the majority’s summary dismissal of relevant statistics suggesting that these correction officers are not at an increased risk, specifically, the fact that there has been only one documented case of occupational HIV infection in the department. The majority maintains that the absence of known instances of employment-related HIV cannot preclude classification as an occupational disease. I disagree that this highly probative fact can be ignored. Indeed, in Glodenis, this court stated that “[e]vidence that lead poi
Accordingly, I respectfully dissent.
This court’s early decisions regarding the definition of an occupational disease, including Glodenis, Madeo and LeLenko, construed the relevant workers’ compensation statute in effect at the time, i.e., General Statutes (1930 Rev.) § 5223. We note that § 5223, which defined an occupational disease as a disease “peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such” is, in pertinent part, identical to its successor, § 31-275 (15).
Hazard is defined as “[a] risk or peril, assumed or involved ... in connection with . . . employment.....” (Emphasis added.) Black’s Law Dictionary (6th Ed. 1990). Accordingly, I use the terms “hazard” and “risk” interchangeably.
I am mindful of our subsequent decision in LeLenko v. Wilson H. Lee Co., supra, 128 Conn. 504, in which this court rejected a claim that a disease must be one that is “usual or generally recognized . . . .” This conclusion, however, does not mean that relevant statistics concerning a disease’s prevalence within a given occupation cannot be considered. Rather, LeLenko merely indicates that prevalence alone is not dispositive of the issue. Prevalence certainly is indicative of an increased likelihood of contraction and should be considered as evidence of such.