DOE v. CITY OF STAMFORD, 241 Conn. 692 (1997)

699 A.2d 52

(SC 15631)Supreme Court of Connecticut

Callahan, C.J., and Borden, Norcott, Katz and Peters, Js.

Syllabus
The claimant, a police officer employed by the defendant city of Stamford, sought, under the Workers’ Compensation Act (§ 31-275 et seq.), to recover expenses for medical testing and treatment after he was exposed in the course of his employment to two potentially fatal contagious diseases. A workers’ compensation commissioner denied the claimant’s application, and the compensation review division affirmed that decision. On the claimant’s appeal, held
that the commissioner and the review board improperly denied the claimant the right to recover for reasonable expenses that he incurred for medically appropriate testing and treatment; under the circumstances here, where the claimant concededly sustained actual exposure to life threatening infectious diseases in incidents that arose out of and occurred in the course of his employment, he suffered compensable injuries under the act, and, without any showing of physical trauma or incapacity, he was entitled to recover the expenses associated with reasonable medical testing and treatment.

Argued May 29, 1997

Officially released July 22, 1997

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Procedural History
Appeal from a decision by the workers’ compensation commissioner for the seventh district denying the plaintiff’s claim for benefits, brought to the compensation review board, which affirmed the commissioner’s decision, and the plaintiff appealed. Reversed; further proceedings.

Stewart M. Casper, with whom, on the brief, were Victoria de Toledo and Renee M. Cannella, for the appellant (plaintiff).

Kevin J. Maher, with whom were James D. Moran, Jr., and James J. Sullivan, for the appellees (defendants).

Opinion
PETERS, J.

The sole issue in this appeal is whether, under the Workers’ Compensation Act (act), General Statutes § 31-275 et seq., an employee has suffered a compensable injury for purposes of recovering expenses for medical testing and treatment at a time when he has been exposed to, but has not yet contracted, a potentially fatal contagious disease. The claimant, John Doe,[1] an employee of the defendant, the city of Stamford,[2] appealed from the decision of the compensation review board (review board) affirming the decision of the workers’ compensation commissioner (commissioner). The commissioner had denied the claimant’s application for compensation and his request for an order requiring the defendant to enter into a voluntary agreement with him. We transferred the appeal from the Appellate Court to this court pursuant

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to Practice Book § 4023 and General Statutes § 51-199(c), and now reverse the judgment of the review board.

The parties have stipulated to the relevant facts, which arise out of two separate incidents. In the first incident, which occurred in February, 1993, the claimant, a police officer engaged in the performance of police duties, was exposed to the human immunodeficiency virus (HIV) when medical pads contaminated with body fluids of a criminal suspect came into contact with an open wound on the claimant’s thumb. After the suspect revealed that he had tested positive for HIV, the claimant proceeded immediately to Stamford Hospital, where his wound was treated and he was released. In the second incident, which occurred in May, 1993, the claimant, again while engaged in the performance of police duties, was exposed to tuberculosis when he came into repeated, close physical contact with another criminal suspect who, it was later learned, suffered from an active case of that disease.

The claimant subsequently underwent testing for the two diseases. Although he did not test positive for either disease,[3] his physician recommended a follow-up consultation with respect to his HIV exposure. In connection with the initial testing, the claimant incurred bills for medical treatment and laboratory work. The defendant has paid for the laboratory services, but not for the medical treatment. With the exception of time lost for the medical testing, the claimant has missed no work as a result of these incidents and claims no loss of income.

The parties agree that both incidents arose out of and occurred in the course of the claimant’s employment

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with the defendant. The parties further agree that the claimant’s contacts with both suspects were sufficient to constitute “exposures” to HIV and tuberculosis. Nonetheless, although the claimant filed a timely application for compensation for past and future unpaid medical testing and treatment, the defendant refused his application and refused also to enter into a voluntary agreement with the claimant recognizing the compensability of his exposures. Accordingly, the claimant’s compensation claim proceeded to a formal hearing before the commissioner. See General Statutes §31-294c(b).

At the hearing, held in May and August, 1994, the principal witness for the claimant was Debra Adler-Klein, a physician specializing in infectious diseases. Adler-Klein testified that an exposure to HIV similar to that sustained by the claimant would, for at least one year thereafter, require regular testing, drug therapy and, potentially, psychological counseling.[4]
She also testified that an exposure to tuberculosis similar to that sustained by the claimant would require testing and preventive drug therapy for at least six months. The defendant offered no contradictory medical testimony.

The commissioner denied the claimant’s application for compensation. He found no fault with the claimant’s factual representation but held that, as a matter of law, “mere exposure to infectious diseases does not give rise to a viable claim that the [c]laimant has suffered an injury or occupational disease” under the act.

The review board affirmed the commissioner’s decision. The board agreed with the commissioner that exposure to an infectious disease, without more, constitutes neither a “personal injury” nor an “occupational disease” under the act. While recognizing that principles of equity militate against the defendant’s refusal to

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cover the claimant’s medical expenses, the review board concluded that, in the absence of statutory authorization, it could not compel the defendant to fulfill its equitable obligation. One member of the review board dissented.

On the claimant’s appeal to this court, we must decide whether exposure to an infectious disease constitutes a compensable “injury” under the act.[5] The claimant contends that, in order to effectuate the act’s humanitarian purposes, “injury” cannot be defined so narrowly as to exclude a serious risk of contracting a life threatening disease. At least, he argues, the term “injury” must be construed to include exposures in circumstances under which the prevailing standard of care calls for immediate and ongoing medical monitoring and treatment. The defendant urges us to uphold the decision of the commissioner and the review board. It contends that, in the absence of either visible physical trauma or present loss of income, a claimant has not suffered a compensable injury. We conclude that, under the circumstances of this case, in which the claimant concededly has sustained actual exposures to life threatening infectious diseases in incidents that arose out of and occurred in the course of his employment, the claimant has suffered compensable injuries under the act and may recover the expenses associated with reasonable medical testing and treatment.

The principles that govern our standard of review in workers’ compensation appeals are well established. “The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn

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from them.” (Emphasis added; internal quotation marks omitted.)Besade v. Interstate Security Services, 212 Conn. 441, 449, 562 A.2d 1086 (1989). Neither the review board nor this court has the power to retry facts. See Six v. Thomas O’Connor Co., 235 Conn. 790, 798-99, 669 A.2d 1214 (1996). Where, however, the appeal involves an issue of statutory construction that has not yet been subjected to judicial scrutiny, this court has plenary power to review the administrative decision. See Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995) (state agency not entitled to special deference when its construction of statute has not undergone previous judicial scrutiny).

Although the parties have called our attention to the public policy implications of this case, the issue presented is, at bottom, a matter of statutory construction. General Statutes §31-294d(a) provides in relevant part that “[t]he employer, as soon as he has knowledge of an injury, shall provide a competent physician or surgeon to attend the injured employee and, in addition, shall furnish any medical and surgical aid . . . as the physician or surgeon deems reasonable or necessary.” (Emphasis added.) See also General Statutes § 31-294d(e) (if employer refuses to provide medical assistance, “the injured employee” may pursue medical assistance at employer’s expense). The defendant does not dispute that the claimant’s exposures to HIV and tuberculosis reasonably require both long and short term medical monitoring. The sole issue, rather, is whether these exposures constitute compensable “injuries” within the definitional boundaries of the act. We conclude that they do.

We reach this conclusion mindful both of general principles of statutory construction and of principles specifically applicable to workers’ compensation law. As a general matter, “[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the

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legislature.” State v. Metz, 230 Conn. 400, 409, 645 A.2d 965 (1994). We discern that intent by looking to the statutory language, to legislative history and policy and to other legislation and common law principles. See id., 409. In appeals arising under workers’ compensation law, we must resolve statutory ambiguities or lacunae in a manner that will further the remedial purpose of the act. Se Hansen v. Gordon, 221 Conn. 29, 32, 602 A.2d 560 (1992). Although we recognize that, in enacting workers’ compensation law, the legislature did not intend to create “a general health and benefit insurance program”; id.; we do not read the act to include limitations on eligibility for compensation for which there is no statutory basis. See Crochiere v. Board of Education, 227 Conn. 333, 359, 630 A.2d 1027
(1993).

The dispositive statute in this case is General Statutes §31-275 (16) (A), which defines the term “injury” to encompass an “accidental injury which may be definitely located as to the time when and the place where the accident occurred. . . .” There is no dispute in this case that the claimant’s exposures to HIV and tuberculosis may be definitely located as to time or place or that they resulted from accidental contact with infected suspects. The commissioner and the review board concluded, however, that, because the claimant had not yet contracted either disease, he had not suffered an “injury” within the meaning of § 31-275(16)(A).

Nothing in the text or the legislative history of the act supports such a limited reading of the statutory definition of “injury.” See Crochiere v. Board of Education, supra, 227 Conn. 359 (§ 31-275 “uses the term `injury’ without limitation”). Although actual infection may be necessary to establish an “occupational disease” as that term is defined in § 31-275
(15),[6] the definition

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of “injury” in § 31-275(16)(A) does not require a similar pathological manifestation. Indeed, it would be contrary to the humanitarian and remedial purpose of the act to infer that the legislature intended that an employee who sustains actual exposure to a potentially fatal infectious disease must await the onset of the disease before he can recover expenses associated with necessary,[7]
and possibly lifesaving, medical intervention. See Jackson Township Volunteer Fire Co. v. Workmen’s Compensation Appeal Board (Wallet), 594 A.2d 826, 828 (Pa.Commw. 1991).[8]

The defendant raises two alternate grounds in support of the decision of the commissioner and review board. One focuses on the form of the claimant’s injury and the other focuses on the extent of the injury. Neither ground is persuasive.

First, the defendant contends that the claimant has not suffered a compensable injury because his exposures

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were not accompanied by a physical wound or trauma. The defendant concedes that, if, for example, the claimant’s skin had bee punctured by a syringe containing blood contaminated with HIV, that puncture would be sufficient to constitute an injury. The defendant contends, however, that, in the absence of similar trauma, the claimant cannot recover under the act.

The defendant’s argument cannot be reconciled with the undisputed facts in this case. The parties have stipulated that the claimant’s contacts with the contagious suspects were sufficient to constitute “exposures.” The defendant, therefore, cannot be arguing that the contacts were not sufficiently serious to create a risk of infection.[9] The defendant must be arguing, instead, that the claimant did not suffer an “injury” because the incidents giving rise to his exposures did not leave a mark, abrasion or other outward sign not already present. The defendant, in effect, invites us to exalt the form of the claimant’s contact with the infected suspects over the substance of the claimed injury. We decline this invitation. 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.[10] See Arkansas Dept. of Correction

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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 Township Volunteer Fire Co. v. Workmen’s Compensation Appeal Board (Wallet), supra, 594 A.2d 828 (in case involving ambulance attendant who came into contact with HIV contaminated blood, claimant’s “injury was the risk of infection”).

Second, the defendant contends that the claimant has not suffered a compensable injury because he has not, as yet, been incapacitated or suffered any loss of income. To the extent that this argument relies on dicta in Mulligan v. F. S. Electric, 231 Conn. 529, 541, 651 A.2d 254 (1994), and cases cited therein for the proposition that “[c]ompensation under [the a]ct is based upon incapacity [and] loss of earning power,” (internal quotation marks omitted) that dicta has been disavowed. Williams v. Best Cleaners, Inc., 237 Conn. 490, 492-93, 677 A.2d 1356 (1996). To the extent that this argument is based on the provisions of General Statutes § 31-295 (a), which provide that no compensation for total or partial disability shall be payable under the act until the injured employee misses more than three days of employment, those provisions are irrelevant to the present case. The claimant does not seek disability compensation. He seeks, rather, to recover medical expenses in connection with the testing and treatment for HIV and tuberculosis exposure. Pursuant to §31-294d, he is entitled to these medical expenses without any showing of incapacity or disability. See also Coca Cola Bottling Co. v. Superior Court, 233 Cal.App.3d 1273, 1284, 286 Cal.Rptr. 855
(1991) (“a compensable injury is one which causes disability or need for medical treatments”); Elliott v. Dugger,

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579 So.2d 827, 830 (Fla.App. 1991) (“[t]he fact that [workers’ compensation claimant] has yet to suffer any proven disability . . . as a result of his exposure to [acquired immune deficiency syndrome] does not make his injury any less compensable”).[11]

Accordingly, in light of the undisputed factual circumstances of record, we conclude that the claimant has established, as a matter of law, that his exposures to two potentially fatal infectious diseases are compensable “injuries” under the act. Accordingly, the commissioner and the review board improperly denied him the right to recover for reasonable expenses that he incurred for medically appropriate testing and treatment.

The judgment is reversed and the case is remanded to the review board with direction to remand it to the commissioner for further proceedings according to law.

In this opinion the other justices concurred.