Hansen v. Gordon, 14237

• Decision Date: 28 January 1992
• Docket Number: No. 14237,14237
• Citation: 221 Conn. 29,602 A.2d 560
• Court: Connecticut Supreme Court
• Parties: , 60 USLW 2528 Elizabeth HANSEN v. Robert GORDON et al.

Page 560

602 A.2d 560

221 Conn. 29, 60 USLW 2528

Elizabeth HANSEN v. Robert GORDON et al.

No. 14237.

Supreme Court of Connecticut.

Argued Nov. 6, 1991.

Decided Jan. 28, 1992.

David A. Kelly, with whom was Jeremy Booty, Glastonbury, for appellants (defendants).

Jason M. Dodge, Hartford, for appellee (plaintiff).

Before PETERS, C.J., and SHEA, CALLAHAN, COVELLO and BERDON, JJ.

BERDON, Justice.

This appeal, arising under the Workers' Compensation Act, General Statutes § 31-275 et seq., raises the following two issues: (1) whether hepatitis type B virus (HBV) is an occupational disease for a dental hygienist within the meaning of the act when the disease arises out of and in the course of her employment; and, if so, (2) whether a dental hygienist who has suffered no physical impairment or symptoms of the disease can be found to have sustained partial incapacity within the meaning of the act as a result of being a carrier of the disease.

The plaintiff, Elizabeth Hansen, (claimant) was employed by Dr. Robert Gordon, a dentist. The compensation review division affirmed an award of benefits from the workers' compensation commissioner to the claimant. Dr. Gordon and his liability insurer under the Workers' Compensation Act, St. Paul Insurance Company, (collectively, employer) took this appeal to the Appellate Court. We transferred the appeal to this court pursuant to Practice Book § 4023. We conclude that, under the facts in this case, HBV is compensable as an occupational disease under the Workers' Compensation Act, and that the claimant sustained a partial incapacity as a result of being a carrier of the disease. Accordingly, we affirm the judgment of the compensation review division.

The employer, on appeal, concedes that the facts the commissioner found must stand. "[T]he power and duty of determining the facts rests on the commissioner, the trier of facts.... The conclusions drawn by him 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." (Citations omitted.) Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18, 411 A.2d 924 (1979).

We thus decide the issues in this case on the basis of the following facts found and conclusions drawn by the commissioner. The claimant had been employed by Dr. Gordon as a dental hygienist since 1980. In 1984, the claimant, her coworkers and Dr. Gordon began to wear masks and gloves due to their increased awareness of infection from communicable diseases. In 1984 and 1985, the claimant and Dr. Gordon received precautionary vaccinations against hepatitis. During March, 1986, the claimant's husband was diagnosed as having HBV. As a result of this diagnosis, the claimant was tested and diagnosed as being a carrier of HBV. On March 13, 1986, the claimant ceased employment as a dental hygienist when she and Dr. Gordon agreed that her condition posed a threat to patients.

Hepatitis is an inflammation of the liver and is usually manifested by jaundice. HBV is a contagious disease that is widespread in the community and is most commonly acquired through bodily secretions, such as blood, serum, semen and saliva. It can be transmitted through blood transfusions, sexual intercourse, or other direct contact with a contagious person in which bodily secretions are involved. Dental hygienists and other health care providers, whose work may subject them to contact with blood and other secretions, are at particular risk for contracting the disease. The commissioner determined that "[b]ased on all the evidence presented it is more likely than not that Claimant's infection with hepatitis arose out of and in the course of her employment."

In viewing the issues raised in this case, we are mindful of the remedial purposes of the Workers' Compensation Act and " 'that it should be broadly construed to accomplish its humanitarian purpose.' " Ash v. New Milford, 207 Conn. 665, 672, 541 A.2d 1233 (1988), quoting Adzima v. UAC/Norden Division, supra, 177 Conn. at 117, 411 A.2d 924. Nevertheless, we also recognize 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.

I

A disease is compensable as an "injury"; § 31-275(8); (1) if it arises out of and in the course of the employment; § 31-275(12); and (2) if it is an occupational disease that is "peculiar to the occupation in which the employee was engaged" and "due to causes in excess of the ordinary hazards of employment as such." Section 31-275(11). ¹

The employer does not dispute the commissioner's conclusion that "it is more likely than not that Claimant's infection with hepatitis arose out of and in the course of her employment." The first requirement has therefore been met. In Fair v. People's Savings Bank, 207 Conn. 535, 539-41, 542 A.2d 1118 (1988), we quoted with approval the following: " '[I]n determining whether a particular injury arose out of and in the course of employment, the ... Commissioner must necessarily draw an inference from what he has found to be the basic facts. The propriety of that inference, of course, is vital to the validity of the order subsequently entered. But the scope of judicial review of that inference is sharply limited by the ... statutory provisions. If supported by the evidence and not inconsistent with the law, the ... Commissioner's inference that an injury did or did not arise out of and in the course of employment is conclusive.' ... Cardillo v. Liberty Mutual Co., 330 U.S. 469, 477-78, 67 S.Ct. 801 [806-07], 91 L.Ed. 1028 (1947)."

The employer claims on appeal, however, that the claimant has not satisfied her burden of proving that HBV falls within the definition of an occupational disease. The employer argues that for the disease to be classified as "occupational" under the Workers' Compensation Act, it must be one where "the risk of acquiring the ailment arises only during employment." At oral argument, the employer further embellished this argument by claiming that contagious diseases present in the community at large must be excluded from coverage under the Workers' Compensation Act. These exclusions are much too broad and find no support in our prior cases.

Shortly after the Workers' Compensation Act was amended to its present pertinent language, ² we had occasion to interpret the definition of "occupational disease" as being "a disease which is a natural incident of a particular occupation, and must attach to that occupation a hazard that distinguishes it from the usual run of occupations and is in excess of that attending employment in general." Glodenis v. American Brass Co., 118 Conn. 29, 40-41, 170 A. 146 (1934). In making this determination, we analyzed the statutory language requiring the disease to be "peculiar to the occupation in which the employee was engaged and due to causes in excess of the ordinary hazards of employment as such." Section 31-275(11). We concluded that this "does not require that a disease, to be within the definition, should be one which arises solely out of the particular kind of employment in which the employee is engaged, nor that it should be due to causes in excess of the ordinary hazards of that particular kind of employment. Otherwise the definition would exclude most diseases.... The phrase 'peculiar to the occupation' is not here used in the sense that the disease must be one which originates exclusively from the particular kind of employment in which the employee is engaged, but rather in the sense that the conditions of that employment must result in a hazard which distinguishes it in character from the general run of occupations; see Oxford Dictionary; Funk & Wagnalls Dictionary; and the phrase 'employment as such' means employment in general." Glodenis v. American Brass Co., supra, at 40, 170 A. 146.

We have never held that a disease must be of the type that can be contracted solely in the work place, either in a general sense or from the claimant's particular type of employment. "When we referred ... 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 ... it imports not a forward look to determine what risks should have been foreseen, but a tracing back from the results to the circumstances out of which the disease sprang." (Citations omitted.) LeLenko v. Wilson H. Lee Co., 128 Conn. 499, 505, 24 A.2d 253 (1942). Therefore, the requirement that the disease be "peculiar to the occupation" and "in excess of ordinary hazards of employment," refers to those diseases in which there is a causal connection between the duties of the employment and the disease contracted by the employee. In other words, it need not be unique to the occupation of the employee or to the work place; it need merely be "so distinctively associated with the employee's occupation that there is a direct causal connection between the duties of the employment and the disease contracted." Russell v. Camden Community Hospital, 359 A.2d 607, 611-12 (Me.1976); see also Hendrix v. Linn-Corriher Corporation, 317 N.C. 179, 345 S.E.2d 374 (1986) (textile worker who developed lung disease as a result of his many years of exposure to cotton dust could recover for an occupational disease under the Workers' Compensation Act); Booker v. Duke Medical Center, 297 N.C. 458, 472-74, 256 S.E.2d 189 (1979) (lab technician contracted serum hepatitis through contact with tainted fluids in the laboratory; upon his death, his decedents were compensated under the occupational disease provision of the Workers' Compensation Act).

We further note that since 1982, the workers' compensation review division has construed the statutory definition of...