State of Connecticut Workers Compensation Commission

This Petition for Review from the January 26, 1995 Finding and Order of the Commissioner acting for the Seventh District was heard December 1, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant1 *has petitioned for review from the January 26, 1995 Finding and Order of the Commissioner acting for the Seventh District. He argues on appeal that the commissioner erroneously denied his request that the respondent issue a voluntary agreement accepting his exposure to an infectious disease as a compensable injury. We affirm the trial commissioner's decision.

The claimant was exposed to materials contaminated by an infectious disease on February 7, 1993, during the course of his employment. He was also exposed to an infected individual on two occasions in May of 1993. In accordance with applicable regulations and procedures, the claimant reported these exposures and had lab work done at the request of a physician. As of the date of the last formal hearing, the respondent had paid the $69 bill for the claimant’s lab work, but not the bills for his visits to the doctor.

The claimant has not missed any time from work as a result of these incidents, nor has he lost any income. As of the hearing date, he had not tested positive for any of the diseases he was exposed to. He has already filed workers' compensation claims based on his exposures, which the parties agree were timely filed. The respondent has not yet accepted the compensability of the claimant’s claim, however. The commissioner concluded that the mere exposure of the claimant to infectious diseases did not give rise to a viable claim under the Workers' Compensation Act, and that the respondent was under no obligation to issue a voluntary agreement accepting the exposure to those diseases as a compensable injury. The commissioner stated that “future hearings and future medical examinations and reports will be determinative of the issue of the future compensability of his claim.” The claimant has appealed that decision.

The claimant argues that he has been exposed to diseases commonly known to be highly contagious and possibly fatal. He contends that, considering the remedial purpose of the Workers' Compensation Act, this exposure constitutes an injury within the meaning of the Act, and that the consequences of that exposure are merely measures of the duration and effect of that injury. In support of his argument, the claimant cites OSHA regulations that require an employee to report possible exposure to infectious diseases immediately and to “cooperate with medical efforts to discover sources and treat results,” as well as regulations of his department that require the filing of a First Report of Injury form upon exposure to certain diseases. He points out that characterizing exposure as a future injury ignores medical bills that have already been incurred, as well as the emotional distress resulting from the exposure. The claimant seeks acknowledgment that any injuries related to exposure will be compensable, and that his current and future medical bills associated with his exposure to infectious diseases will be paid.

While the claimant sets forth two cases from other states that have held exposure to be an injury; see Jackson Township Volunteer Fire Co. v. Workmen’s Compensation Appeal Board (WALLET), 594 A. 2d 826 (Pa. Cmwlth. 1991) (exposure to AIDS and Hepatitis B is injury under Pennsylvania Workmen’s Compensation Act); Elliott v. Dugger, 579 So. 2d 827 (Fla. App. 1 Dist. 1991), review denied, 591 So. 2d 181 (1991) (exposure to AIDS was compensable injury under Florida Workers' Compensation Act); the respondent argues that neither the definition of “injury” under the Connecticut Act nor the case law of this state support the conclusion that mere exposure to a disease, absent its contraction, is compensable. Under our Act, “personal injury” is defined to include accidental injuries that may be definitely located as to time and place, work-related injuries that result from repetitive trauma, and occupational disease. Section 31-275(16)(A) C.G.S. An “occupational disease” is any disease peculiar to the claimant’s occupation and attributable to causes exceeding the ordinary hazards of employment, including “any disease due to or attributable to exposure to or contact with any radioactive material.” Section 31-275(15) C.G.S.

Although the word “injury” is not broken down by the statute, it is clear under § 31-275(15) that “occupational disease” refers to the disease itself, and not the exposure that necessarily precipitates it. This distinction is borne out in our supreme court’s opinion in Hansen v. Gordon, 221 Conn. 29 (1992). There, the court ruled that a dental hygienist who was found to have contracted hepatitis during her employment suffered from an occupational disease within the meaning of § 31-275, as the trial commissioner had found that dental hygienists were at a particular risk of contracting hepatitis because of their contact with blood and other secretions. Id., 37. The court then ruled that, even though the claimant suffered no symptoms of the disease, and had voluntarily left her employment because she was a carrier of the disease and did not want to risk infecting patients, she still could be partially incapacitated within the meaning of the Act because her earning capacity had been diminished by her necessary withdrawal from the dental hygiene profession. Id., 39-41. Thus, her status as a carrier of hepatitis was enough to make her “injured” under Chapter 568.

Here, the claimant has thus far been fortunate enough not to have tested positive for the presence of any of the diseases he has been exposed to. He is still at his regular job, and his earning capacity has not been affected by the exposure. Clearly, he has not yet reached a point at which he can be characterized as “incapacitated.” Hansen, supra, represents the extent to which an incipient condition has been labeled an occupational disease under the case law interpreting our Workers' Compensation Act. Although we are sensitive to the broad humanitarian purpose of the Act, we would be going far beyond its language if we were to label the mere exposure to a contagious disease, without any evidence that the claimant has actually been infected, as a compensable injury. Such a determination must be made by the legislature, and not by this board.

We do wish to state, however, that we are cognizant of the importance of immediate testing when people believe that they may have been exposed to certain diseases. In situations where such exposure has arisen out of and occurred in the course of one’s employment, it would seem appropriate for the employer to assume the costs of such tests, as well as the costs of future follow-up tests. In this case, the commissioner could do no more than find that the claimant had provided timely notice of his potential claim, thus preserving his rights for the future, because he has not yet suffered a compensable injury under the Act. This does not mean that this Commission would consider it just for an employer to refuse to pay for necessary tests and/or treatment to decrease the likelihood of contracting a disease once exposure has potentially occurred. The equities lie heavily on the side of the claimant in a case like this.

The trial commissioner is affirmed.

Commissioner Roberta Smith Tracy concurs.

AMADO J. VARGAS, COMMISSIONER. I respectfully dissent. I disagree with the majority’s conclusion that the claimant’s direct physical contact with infectious diseases, which required medical care and testing, did not constitute an injury under the Workers’ Compensation Act. In the instant case, the parties stipulated to facts, as found by the trial commissioner in the Finding and Order of January 26, 1995. Specifically, the parties stipulated that on February 7, 1993 the claimant sustained an exposure to contaminated material containing body fluids of a criminal suspect known to have an infectious disease, which exposure involved “direct contact with said contaminated material on an open wound on the claimant’s hand.” (Finding No. 4). In addition, on May 1, 1993 and May 12, 1993, the claimant sustained exposure to a criminal suspect with an infectious airborne disease. The claimant was in the course of his employment when these exposures occurred. (Finding No. 1). The exposures at issue in this case involve diseases which are known to be contagious and potentially fatal.

Although the claimant has not tested positive for either of the diseases to which he was exposed, he nevertheless required medical care and medical testing. The respondents have filed notices contesting liability, and have refused to pay for the claimant’s medical care. (Finding No. 16). The claimant seeks a determination that his injuries were compensable, so that he may rest assured that the future medical testing and care required by his exposures will be paid. Under the facts as found by the trial commissioner, the claimant did indeed sustain compensable injuries.

Section 31-275(16)(A) provides that the definition of an injury includes an “accidental injury which may be definitely located as to the time when and the place where the accident occurred” and injuries due to repetitive trauma or occupational disease. In the instant case, the claimant’s exposures to contagious diseases are definitely located as to time and place.2 **(Findings B and D). The undisputed medical testimony presented by Debra Adler-Klein, M.D., a physician with board certification in internal medicine and infectious diseases, indicates that the claimant’s exposure to infectious diseases on February 7, 1993, May 1, 1993, and May 12, 1993 required medical care, diagnostic testing, and follow-up care and testing. (TR. 5/24/94 at p. 18-19, 24, 26-32).

To deprive a claimant of compensation for medical care and testing caused by an incident which occurred in the course of his employment violates public policy and contravenes the purpose of the Workers’ Compensation Act, “which is to be liberally construed to provide coverage for employees who are injured on the job.” Muldoon v. Homestead Insulation Co., 231 Conn. 469, 483 (1994) (citation omitted). Moreover, the Act is remedial and should be construed liberally to achieve its humanitarian purpose. Id. The Supreme Court in Connecticut has repeatedly stated that the Act “is to be construed with sufficient liberality to carry into effect the beneficent purpose contemplated in that legislation, and not to defeat that purpose by narrow and technical definition." Id. (citation omitted). If the claimant does at some time in the future develop one of the infectious diseases to which he was exposed, the trial commissioner would have to find that the disease was caused by the exposure which occurred in the course of his employment in order to award workers’ compensation benefits for such disease. See McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117 (1987).

Finally, I note that other states have concluded that an exposure to an infectious and contagious disease may constitute a compensable workers’ compensation injury. Jackson Township Volunteer Fire Co. v. Workmen’s Compensation Appeal Board (WALLET); Schaap v. Publix Supermarkets, Inc., 579 So. 2d 831 (Fla. App. 1 Dist. 1991); and Elliott v. Dugger, 579 So. 2d 827 (Fla. App. 1 Dist. 1991), review denied, 591 So. 2d 181 (1991). The Pennsylvania Commonwealth Court held that “persons exposed to a serious risk of contracting a disease which is commonly known to be highly contagious/infectious and potentially deadly, have been ‘injured’ for the purposes of receiving compensation under the Act.” Jackson TP. Volunteer Fire Co., supra, at 828. In that case, the court found that the claimant’s exposure to the bodily fluids of an individual with AIDS and hepatitis B, which required testing and medical care, constituted a compensable injury even though the claimant had not contracted any diseases from the exposure. The court stated that to conclude otherwise would thwart the humanitarian purpose of workers’ compensation. Id. The court noted that the seriousness of the claimant’s exposure is evidenced by the medical directives regarding such exposure which “are consistent with a strong public policy in favor of restricting the spread of such serious and deadly contagious/infectious diseases....” Id. at 829. The court further noted that the refusal to compensate such individuals would have an undesirable chilling effect on the willingness of health care professionals to treat AIDS and hepatitis patients.

For the above reasons, I dissent.

1This board has decided to use "John Doe" to protect the privacy interests of the claimant. BACK TO TEXT*

2In addition, it is arguable that the exposures sustained by the plaintiff constitute occupational diseases. BACK TO TEXT**

[State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman]

State of Connecticut

Workers' Compensation Commission

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