Gregory Tracy v. Scherwitzky Gutter Co., No. 17498.

• Decision Date: 01 August 2006
• Docket Number: No. 17498.
• Court: Connecticut Supreme Court
• Parties: GREGORY TRACY, ADMINISTRATOR (Estate of James Tracy) v. SCHERWITZKY GUTTER COMPANY et al.

901 A.2d 1176

279 Conn. 265

GREGORY TRACY, ADMINISTRATOR (Estate of James Tracy) v. SCHERWITZKY GUTTER COMPANY et al.

No. 17498.

Supreme Court of Connecticut.

Argued February 15, 2006.

Decided August 1, 2006.

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Brian W. Prucker, Stafford Springs, for the appellant (plaintiff).

Joseph J. Passaretti, Jr., with whom, on the brief, was Kristin K. Stein, for the appellees (defendants).

BORDEN, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

ZARELLA, J.

The sole issue presented by this appeal is whether home convalescent care of a nonmedical nature rendered to a workers' compensation claimant by a member of the claimant's family is compensable under the Workers' Compensation Act (act), General Statutes § 31-275 et seq. The plaintiff, Gregory Tracy, the administrator of the estate of James Tracy, appeals from the decision of the compensation review board (board) affirming the decision of the workers' compensation commissioner for the first district (commissioner) that the named defendant, Scherwitzky Gutter Company,¹ James Tracy's former employer, is not liable for providing such compensation. We affirm the decision of the board.

The record reveals the following facts. James Tracy (decedent) was employed by the defendant as a gutter installer. On October 7, 1999, the decedent was working on the roof of a two-story home when he fell to the ground below, suffering multiple fractures and traumatic brain injury. These injuries were compensable under the act.

Shortly after the accident, the decedent was taken to Hartford Hospital, where he was diagnosed and received appropriate treatment. Thereafter, on December 2, 1999, the decedent was transferred to Gaylord Hospital, where he was treated by Alyse B. Sicklick, a physician, among others. The decedent was discharged into the care of his sister, Julia Morrisette, on February 11, 2000. At the time of the decedent's discharge, Sicklick recommended "that he be in a supervised setting, alone for only short periods of time with frequent checks."

The decedent's mental faculties were considerably reduced as a consequence of his injuries. His memory was diminished such that he would forget to take his medications or would eat until he vomited, unaware that he had eaten a meal a few minutes earlier. The decedent also became unable to conduct himself in a safe manner and, consequently, would wander off alone, unsuccessfully attempt to cook his own meals,² and attempt to mount the roof when he believed that a gutter needed repair.

The record is unclear as to whether the full extent of these symptoms was evident during the decedent's time with Morrisette. The burden of caring for the decedent, however, was too much for Morrisette, and, on March 28, 2000, the decedent began living with his nephew, the plaintiff, and the plaintiff's wife, Susan Tracy.³ On July 25, 2000, the Griswold Probate Court appointed the plaintiff as conservator of the decedent.

Between March 28, 2000, and November 29, 2001, the Tracys cared for the decedent twenty-four hours a day, seven days a week.⁴ This care was later characterized by the plaintiff as "guardian-type care, not medical" in nature. Susan Tracy, who was employed outside of her home as a certified nurse's aide, testified that she and the plaintiff monitored the decedent to prevent him from "[doing] things that he shouldn't do . . . ." They also "provide[d] [the decedent with] everything he really needed," reminding him to take his medications and giving him "cues to eat, cues to change his clothes, cues to wash up," and the like. When the decedent experienced one of his occasional seizures,⁵ often accompanied by vomiting or loss of bowel control, the Tracys would calm him and summon an ambulance, if necessary.

Sicklick saw the decedent after his discharge from Gaylord Hospital only once, for a follow-up visit on June 1, 2000.⁶ At that visit, Sicklick recommended—in writing, on a prescription pad bearing the name and address of Gaylord Hospital— that the decedent "be alone for only short period[s] of time with frequent checks during that time. Otherwise he should be maintained in a supervised setting." Sicklick also noted in her report of the June 1 visit that the decedent "[was then] living with a nephew, where he ha[d] 24-hour supervision. There continue[d] to be significant memory deficits as well as safety issues." The decedent continued to suffer from these same symptoms until his death on November 29, 2001.

Following the decedent's death, the plaintiff commenced the present action, claiming that (1) he was entitled to benefits for the decedent's death pursuant to General Statutes § 31-306,⁷ (2) he was entitled to benefits through the date of the decedent's death, and (3) the Tracys were entitled to benefits pursuant to General Statutes § 31-294d⁸ for care provided to the decedent prior to his death. The commissioner, after formal hearings, ordered the defendant to pay "total disability benefits" to the plaintiff pursuant to the second claim but dismissed the first and third claims. In reference to the third claim, the commissioner found that the care provided by the Tracys "was not rendered by referral or under the supervision of any physician and does not rise to the level qualifying it for compensation under [§ 31-294d]. . . ." The commissioner correspondingly ordered that "[t]he claims of [the Tracys] for care provided to the [decedent], though laudable and praiseworthy, do not qualify for benefits under [General Statutes §] 31-312 and, as such, must be dismissed." The plaintiff filed a motion to correct the commissioner's findings and order by changing (1) the commissioner's decision to describe the decedent as "under the supervision of a physician on a self pay basis," and (2) the commissioner's reference to § 31-312 in the commissioner's findings and order to § 31-294d. The commissioner denied the plaintiff's motion.

The plaintiff appealed the commissioner's decision only as to the third claim. The board affirmed the commissioner's decision, finding that "[t]he reasoning the . . . commissioner used [was] consistent with the proper analysis under § 31-294d. For this reason, the . . . commissioner's mention of § 31-312 appear[ed] to be a harmless error." The board concluded that the commissioner's finding that the care provided by the Tracys "did not rise to the level of care qualifying . . . for compensation under [§ 31-294d] . . . is a factual finding that we will not disturb . . . ." The plaintiff appealed from the decision of the board to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1.

On appeal to this court, the plaintiff claims that the care that the Tracys rendered to the decedent is compensable under § 31-294d.⁹ The plaintiff first argues that care provided by a certified nurse's aide, such as Susan Tracy, may constitute "medical aid or rehabilitation services"¹⁰ and, accordingly, that the care provided to the decedent by the Tracys was compensable under § 31-294d.¹¹ The plaintiff also argues that the Tracys' care of the decedent was medically reasonable and necessary long term custodial care rendered on the basis of the referral, consent, direction and supervision of a physician, and, therefore, was compensable under § 31-294d.

The defendant argues in response that the plaintiff's claim fails both prongs of the two-part test established in Galway v. Doody Steel Erecting Co., 103 Conn. 431, 435-36, 130 A. 705 (1925), for evaluating the compensability of such claims, namely, whether "the care provided to the injured worker" was (1) "under the direction of a treating physician," and (2) "with the consent of the treating physician. . . ." The defendant additionally argues that, even if the Galway test were satisfied, the plaintiff's claim nonetheless would fail because the Tracys "were not `medical providers' as defined by the statute." Finally, the defendant argues that "a finding for the [plaintiff] would be contrary to public policy" insofar as it "would result in administrative nightmares, unending litigation and logistical difficulties," as well as a double recovery for caregivers. We agree with the defendant that the care that the Tracys rendered is not compensable.

"As a threshold matter, we set forth the standard of review applicable to workers' compensation appeals. 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 from them. . . . Besade v. Interstate Security Services, 212 Conn. 441, 449, 562 A.2d 1086 (1989). Neither the . . . 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). . . . Doe v. Stamford, 241 Conn. 692, 696-97, 699 A.2d 52 (1997). It is well established that [a]lthough not dispositive, we accord great weight to the construction given to the workers' compensation statutes by the commissioner and [the] board. . . . A state agency is not entitled, however, to special deference when its determination of a question of law has not previously been subject to judicial scrutiny. . . . Duni v. United Technologies Corp., 239 Conn. 19, 24-25, 682 A.2d 99 (1996); Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995). Where . . . [a workers' compensation] 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. Doe v. Stamford, supra, at 697, 699 A.2d 52; see Davis v. Norwich, supra, at 317, 654 A.2d 1221. . . . Dowling v. Slotnik, 244 Conn. 781, 798, 712 A.2d 396, cert. denied [sub nom. Slotnik v. Considine], 525 U.S. 1017, 119 S.Ct....