Opinion
CASE NO. 4582 CRB-3-02-11CLAIM NO. 300058006
OCTOBER 31, 2003
The claimant was represented by Kathy Boufford, Esq., Williams Bellenot, 501 Main Street, Monroe, CT 06468.
The respondent was represented by Kenneth H. Kennedy, Jr., Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141.
This Petition for Review from the October 25, 2002 Finding and Award of the Commissioner acting for the Third District was heard May 30, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Howard H. Belkin.
OPINION
The respondent employer petitioned for review from the October 25, 2002 Finding and Award of the Commissioner acting for the Third District. In that Finding and Award the trial commissioner concluded the claimant was entitled to the full pay provisions set out in § 5-142 (a). The respondent filed this appeal.
The pertinent facts are as follows. The claimant was employed by the respondent as a correction officer. On July 6, 2001 the claimant responded to a "Code White." A Code White is a medical code for which it is among the claimant's responsibilities to respond. Upon arrival at the cell of the inmate for which the code was issued, the claimant found an inmate attempting to hang himself. The inmate was conscious.
The claimant lifted the inmate so as to relieve the pressure between the bed sheet ligature around the inmate's neck and his airway. It was while lifting the inmate that the claimant injured his back. While the inmate was not violent toward the claimant, the claimant was required to restrain the inmate from leaning away from the claimant and recreating the suffocating tension between the noose and the inmate's neck. The claimant's lifting of the inmate occurred while medical personnel were summoned to cut the hanging device. See also May 8, 2002 Transcript, pp. 12-13.
We refer to the claimant's testimony during examination by appellant's counsel. May 8, 2002 Transcript, pp. 6-8 (emphasis ours):
Atty. Kennedy: The code white situation is where an inmate was hanging himself?
Claimant: Yes . . .
Atty. Kennedy: In responding to this medical code, what was it is fair to say that the inmate was trying to kill himself?
Claimant: Correct.
Atty. Kennedy: Was the inmate trying the device that he was trying to kill himself with, was it a bed sheet, is that fair to say?
Claimant: Yes.
Atty. Kennedy: You were responding to that emergency code.
Claimant: Yes.
Atty. Kennedy: When you arrived on the scene, what did you see?
Claimant: I arrived on the scene. There was another officer pointing the way to exactly where the code was, where the code white was. Entered into the cell with other officers and the inmate was hanging, had a sheet around his neck. Had it attached to the fire extinguisher — fire unit on the ceiling of the cell. When we arrived —
Commissioner: Excuse me. Would that be a sprinkler system, this fire unit that you're talking about?
Claimant: Yes.
When we arrived, I got underneath the body, stepped on the bottom bunk. He was on top of a double bunk bed. I stepped on the bottom bunk of the bed. Hoisted the body, pushed the body up. Had the body, the whole body, the top end of the body.
Atty. Kennedy: You had like the mid section? Is that fair to say?
Claimant: Mid section and up.
Atty. Kennedy: That's to relieve the pressure off the esophagus?
Claimant: Correct.
Atty. Kennedy: So he can receive air?
Claimant: Correct. The other office[sic] was on top of the bunk.
Atty. Kennedy: The other officer, from my reading the report, had scissors?
Claimant: No. Medical has the scissors.
Atty. Kennedy: Medical has the scissors to cut the bed sheet?
Claimant: Right.
Atty. Kennedy: Now, in the proposed Stipulation of Facts, in terms of the point of clarification, the inmate leaned away when he saw you. Is that fair to say?
Claimant: Once I held the inmate up, he felt that I was holding his body up and he started to push away from me because he was trying to drop himself off the bed. I was preventing him from dropping himself off the bed.
Atty. Kennedy: He wanted to kill himself. He was trying to lean in a different direction than you're holding him up?
Claimant: Correct.
A hearing on this matter was held before the trial commissioner on May 8, 2002. Following the hearing the trial commissioner issued this Finding and Award in which he concluded that the claimant was entitled to the full pay provisions set out in § 5-142 (a). Additionally, the trial commissioner awarded the claimant interest and attorney's fees. The respondent-appellant [hereafter appellant] filed this appeal and presents the following issues on appeal; (1) whether the trial commissioner erred in concluding that the claimant was entitled to the full pay provisions of § 5-142 (a) and (2) whether the trial commissioner erred in awarding the claimant interest and attorney's fees on the basis of unreasonable contest.
If any member of the Division of State Police within the Department of Public Safety or of any correctional institution,. . . 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 his duty 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. He shall continue to receive the full salary which he 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.
The first issue we consider is whether the trial commissioner erred in concluding that the claimant was entitled to benefits pursuant to § 5-142 (a). In the instant matter the claimant comes within the class of persons to which § 5-142 (a) may apply however, the claimant must prove that his injury occurred under the following circumstances "(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 his duty and (2) that is a direct result of the special hazards inherent in such duties" Id.
On appeal the appellant contends that the trial commissioner erred as the claimant's injury was not the direct result of the special hazards inherent in his duties as a correction officer. As was explained by this tribunal in Gray v. State, 12 Conn. Workers' Comp.Rev.Op. 279, 281-282, 1476 CRB-4-92-8 (June 7, 1994) the addition of the "special hazards" language in § 5-142 (a) occurred when the legislature amended § 5-142 (a) in 1991 as amended by Section 40 of Public Act 91-339. This tribunal noted:
Injuries which occur while an employee is "attending" a state inmate, however, like those occurring in the "actual performance" of police on guard duties, are not necessarily hazardous. See Lucarelli v. State, 16 Conn. App. 65 (1988) supra. In such situations, injuries due to the "ordinary" hazards of the employee's job duties will not qualify under Sec. 5-142 (a). See 34 H. Proc., Pt 24, 1991 Sess., pp. 9068-69, remarks of Representative Joseph Adamo (back injury to hospital worker caused by simple lifting of patients not within Sec. 5-142 (a) (2)). Under such circumstances, then, additional facts are necessary to establish whether the injury was caused by a risk peculiar to and obviously 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.
Gray, supra.
As to whether the activity engaged in by the claimant in the instant matter satisfies the "special hazards" requirement, we must turn to prior interpretations of the language of the statute. In Johnson v. State/Department of Correction , 4162 CRB-1-99-12 (January 25, 2001), aff'd , 67 Conn. App. 330 (2001), the claimant was a correction officer who was injured when an inmate exiting from the shower grabbed onto the claimant when the inmate slipped. As a result the claimant was injured when both he and the inmate fell to the floor. The trial commissioner found that the claimant's injury occurred "while in the actual performance of his duties, and while grabbing and restraining an inmate." The trial commissioner concluded that the claimant was entitled to § 5-142 (a) benefits as the injury was "a direct result of the special hazards inherent in his guard duties." Johnson, 67 Conn. App. 333. (interior quotations omitted)
In this tribunal's consideration of Johnson, the trial commissioner's decision was reversed and the panel noted:
In a prison environment, the "special hazard" that a guard incurs while attending and restraining inmates is that he will be forced to physically intervene in a dispute among inmates, or become the victim of attempted violence by one of the inmates. In such a situation, an action taken by the guard to subdue or control an inmate's behavior is fairly described as "restraint," and falls directly within the ambit of § 5-142 (a). On the other hand, almost any employee in any business might be placed in the unexpected situation of having to break someone's fall when the other person loses her balance. Though such an action could reasonably deemed to be within the scope of one's job; see Roche v. Danbury Hospital, 3592 CRB-7-97-5 n. 1 (July 13, 1998) (secretary in hospital acted in employer's interests by catching elderly patient as he fell out of wheelchair); it would seem to take very special circumstances for this type of "restraint" to constitute a special hazard of employment. More pointedly, the record contains no proof that catching hold of people who slip is an especially hazardous aspect of a state prison guard's job. Therefore, the trier's decision lacks a vital subordinate factual element. (Emphasis ours.)
Johnson v. State/Department of Correction , 4162 CRB-1-99-12 (January 25, 2001). The Appellate Court affirmed this tribunal's opinion.
However, the instant matter presents a factual scenario that more closely resembles the injury scenario the legislature contemplated when it included the "special hazards" language in the statute. As we review our opinion in Johnson, supra, and the Appellate Court's reference to it, we again refer to the language in our opinion quoted above. The resolution of the instant matter turns on a determination as to whether catching and restraining a person from falling is an activity distinguishable and substantially different from restraining and lifting an inmate so as to thwart the inmate's attempted suicide. We think there is a difference between these two activities and that the act of restraining an inmate so as to prevent his suicide falls within the ambit of special hazards of employment as a correction officer. Also the prison setting is much more likely to produce a situation such as the one in the instant matter than other employment situations as contemplated byJohnson, supra. Therefore, we affirm the trial commissioner's finding and conclusion on this issue.
The second issue presented for review is whether the trial commissioner erred in awarding interest and attorney's fees pursuant to § 31-300 on the basis of unreasonable contest. Our review of the trial commissioner's Finding and Award fails to reveal any factual findings which support his conclusion that the appellant's defense on this issue rises to the level of an unreasonable contest. Likewise the record before us is silent on this issue as well. Accordingly, the matter is remanded for further proceedings as appropriate.
We therefore affirm the October 25, 2002 Finding and Award of the Commissioner acting for the Third District insofar as it determines claimant's entitlement to benefits pursuant to § 5-142 (a). However, we remand as to the issue of unreasonable contest in order to give the parties an opportunity to establish a record.
Commissioners James J. METRO and Howard H. BELKIN concur.