Opinion
HHDCV136046634S
04-01-2016
Yolanda Matta v. Charter Oak Health Center, Inc.
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Cesar A. Noble, J.
The issue before the court is whether the exclusivity provision of the Workers' Compensation Act, General Statutes § 31-284(a), bars the plaintiff's claim for an intentional tort. The court finds that the plaintiff has neither alleged nor established facts sufficient to satisfy the narrow exception to the exclusivity provision and, therefore, there is no genuine issue of material fact and the defendant is entitled to judgment as a matter of law. Accordingly, the defendant's motion for summary judgment is granted.
I.
FACTS & PROCEDURAL HISTORY
On November 8, 2013, the plaintiff, Yolanda Matta, filed a two-count complaint against the defendant, Charter Oak Health Center, Inc. The plaintiff began working for the defendant in August 2005, as a Prevention Case Manager. Her primary job duties consisted of counseling and providing follow-up services to the defendant's patients that included assisting clients with housing, insurance, food stamps, SAGA cash applications, Social Security paperwork, scheduling medical appointments, and similar tasks. She was also involved in HIV counseling. Her job description specifically states that persons in this position " may be exposed to communicable and/or infectious diseases."
The defendant filed a motion to strike both counts on December 19, 2013. The court, Scholl, J., issued an order (#101.86) on June 16, 2014, denying the defendant's motion to strike count one, labeled " Intentional Tort" and granting the motion to strike count two, labeled " Intentional Infliction of Emotional Distress."
The defendant's motion for summary judgment and attached affidavits alleges the following facts. On November 7, 2011, a patient of the defendant's, Patient 31, was treated at the defendant's urgent care clinic for complaints of " persistent vomiting for three weeks and inability to take oral foods and fluids." The patient was sent by ambulance to the emergency department at Hartford Hospital, where Patient 31 was treated, discharged, and sent home. Patient 31 returned to Hartford Hospital the next day, at which point the patient reportedly presented with conditions of " dizziness, productive cough and chills" and was admitted to the hospital. During the period of hospitalization, testing on November 14, 2011, diagnosed Patient 31 with active tuberculosis. The next day, Hartford Hospital sent reports of the active tuberculosis case to the Connecticut Department of Public Health (DPH). DPH in turn notified Hartford's Department of Health and Human Services (Hartford Health Department) of the diagnosis. Patient 31 never returned to Charter Oak after November 7, 2011, and passed away at Hartford Hospital on December 21, 2011.
Due to patient privacy and confidentiality, the patient's name cannot be disclosed.
The defendant's motion and documentary proof further alleges that the defendant is commonly notified when one of its patients passes away. On or about December 23, 2011, the defendant was notified of Patient 31's passing. The defendant was not privy to Patient 31's health records while in-patient at Hartford Hospital and was not notified of the diagnosis of active tuberculosis until, at the earliest, December 28, 2011. On or about December 28, 2011, Dr. Prince Morgan, D.M.D., a dentist employed by the defendant's Dental Clinic, was notified by phone call from the Hartford Health Department that Patient 31, a former patient of the dental clinic, had passed away at Hartford Hospital and had been identified by the hospital as having active tuberculosis. Dr. Morgan provided this information to the defendant's Vice President of Operations, first by email, dated December 29, 2011, and then in a meeting with her and the Director of Nursing. The Director of Nursing was assigned the responsibility of identifying who had come into close proximity with Patient 31, testing them for potential tuberculosis exposure, and notifying the appropriate public officials of the findings and test results. Subsequent to the meeting and at the direction of the Hartford Health Department, steps were taken by Dr. Morgan to identify and test individuals in the dental clinic. The Director of Nursing additionally took steps to identify and test some employees outside of the dental clinic in January 2012, however, she did not act as promptly or as thoroughly as would have been expected due to her mistaken belief that the majority of the defendant's employees did not need to be tested based on the fact that they had recently participated in the defendant's annual PPD testing in October 2011. From the date of notification through February 1-2, 2012, the Director of Nursing did not forward the email she received from Dr. Morgan to the defendant's CEO, or otherwise make mention of the potential tuberculosis exposure.
" A positive PPD test only reveals that a person had been exposed to the bacterium that causes tuberculosis sometime in the past; it does not mean that the person has, or even will develop, active tuberculosis disease. If a PPD test is positive, further evaluation and testing is needed to determine if the person has active tuberculosis, which is the only form that is contagious to others." Defendant's Memorandum of Law in Support of the Motion for Summary Judgment, p. 7 n.1.
On February 1, 2012, at a regularly scheduled meeting of the defendant's Access Redesign Team, various senior managers, including the CEO, were notified of the potential tuberculosis exposure. The Vice President of Operations discussed a rumor she heard about a patient with tuberculosis who may have been seen in some of the defendant's clinics, however, she did not reveal anything about her communications in December 2011 with Dr. Morgan and the Director of Nursing, nor did she indicate that the Director of Nursing had been tasked with responding to the situation. Although the Vice President of Operations has since claimed that she told the CEO about the potential tuberculosis incident in late December 2011, she made no reference to any prior communications with the CEO regarding the tuberculosis incident nor did she indicate in any way that the CEO was previously aware of the tuberculosis incident during the discussion on February 1, 2012. After an internal investigation and the rumor of the tuberculosis incident was confirmed, an email was sent on February 3, 2012, on behalf of the CEO, notifying all employees of the potential exposure to tuberculosis and recommended all employees receive PPD testing immediately.
The plaintiff's opposition alleges the following facts. In January 2012, the plaintiff was informed by a security guard at the defendant's facility that Patient 31 had died from tuberculosis. After learning this, the plaintiff underwent tuberculosis testing on February 1, 2012, and on February 3, 2012, the plaintiff was informed that she tested positive for tuberculosis. The plaintiff was placed on medication to treat latent tuberculosis and thereafter suffered from peripheral neuropathy as a result of her treatment. Upon learning that she was exposed to tuberculosis, the plaintiff suffered from anxiety and emotional distress. The plaintiff alleges she suffered further anxiety and emotional distress after February 2, 2012, when she discovered that the defendant " withheld and concealed the fact that she had been exposed to tuberculosis in the defendant's facility." The plaintiff's pleadings state that the defendant " failed to maintain an active infection control program and/or provide medical oversight of the infection control program, which is necessary to protect the safety of patients and the public from infections." As a result of the injuries caused by the defendant's claimed intentional misconduct, some of which are permanent in nature, the plaintiff's quality of life is alleged to have been and will be adversely affected.
The plaintiff was diagnosed with latent tuberculosis, which is not contagious.
On or about April 28, 2012, the plaintiff filed a workers' compensation claim related to her diagnosis of latent tuberculosis, peripheral neuropathy, and related emotional distress. Following her diagnosis, she had initially returned to work and was able to complete her job assignments. On or about June 5, 2012, the plaintiff took a medical leave of absence related to her alleged emotional distress and has not returned to work at Charter Oak since. The claim was retained by the Workers' Compensation Commission and the plaintiff has received, and continues to receive, workers' compensation benefits and reimbursement for medical expenses related to these injuries, her ongoing treatment for those injuries, and her lost time from work allegedly caused by those injuries. She also applied for and has been receiving Social Security Disability Insurance benefits since 2013. The plaintiff claims to be unable to work at the present time and is not sure if she will be able to return to work in the future.
In count one, labeled " Intentional Tort, " the plaintiff alleges that the defendant, through its acts and/or omissions, intentionally created dangerous conditions that made the plaintiff's injuries substantially certain to occur. On September 5, 2014, the defendant filed an answer, denying the material allegations of the complaint, and special defenses. On November 19, 2014, the plaintiff filed a reply denying the special defenses.
On October 15, 2015, the defendant filed a motion for summary judgment on the grounds that there are no genuine issues of material fact and the defendant is entitled to judgment as a matter of law. The motion is accompanied by a memorandum of law and exhibits. The plaintiff filed an objection, memorandum of law in opposition to the motion for summary judgment, and exhibits on November 30, 2015. The defendant filed a reply memorandum on December 16, 2015. This matter was heard at short calendar on December 21, 2015.
II.
STANDARD
" Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012). " [T]he party moving for summary judgment . . . is required to support its motion with supporting documentation, including affidavits." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 324 n.12, 77 A.3d 726 (2013). " Likewise, [t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Internal quotation marks omitted.) United States Bank, N.A. v. Foote, 151 Conn.App. 620, 632-33, 94 A.3d 1267, cert. denied, 314 Conn. 930, 101 A.3d 952 (2014).
" [I]t is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial." (Internal quotation marks omitted.) Mott v. Wal-Mart Stores East, LP, 139 Conn.App. 618, 626, 57 A.3d 391 (2012). " In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 57, 68 A.3d 1162 (2013).
" In a situation where it is undisputed that the plaintiff was engaged in the course of his employment at the time of his injury, whether he is barred by the Workers' Compensation Act from maintaining a civil action is a question of law for the court." Pagani v. BT II, Limited Partnership, 24 Conn.App. 739, 745, 592 A.2d 397 (1991).
III.
DISCUSSION
The defendant argues that the plaintiff's claims are barred by the exclusivity provision of the Workers' Compensation Act, General Statutes § 31-284(a), because the plaintiff's exposure and subsequent alleged emotional distress arose out of and in the course of her employment. The defendant argues further that the plaintiff has neither alleged nor established facts sufficient to warrant the application of an exception to the exclusivity provision.
The plaintiff counters that the defendant " committed an intentional tort against the plaintiff and/or engaged in serious or willful misconduct because the defendant's lack of infection control was so apparent and egregious that the defendant knew there was a substantial certainty that one or more employees would be harmed as a result of workplace exposure to infectious disease, " thus arguing her claim against the defendant falls within the substantial certainty exception to the exclusivity provision.
The Workers' Compensation Act, General Statutes § 31-284(a) provides in relevant part as follows: " An employer who complies with the requirements of subsection (b) of this section shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment . . ." " The purpose of the act is to compensate workers for injuries arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on employers . . . Under the act, an employee compromises his right to a common-law tort action against his employer for work-related injuries in exchange for relatively quick and certain compensation . . . Our Supreme Court has long recognized that where a worker's personal injury is covered by the act, statutory compensation is the sole remedy and recovery in common-law tort against the employer is barred." (Citations omitted; internal quotation marks omitted.) Szczapa v. United Parcel Service, Inc., 56 Conn.App. 325, 328-29, 743 A.2d 622 (2000).
" There is an exception, however, to the exclusivity provision of the workers' compensation statute. That one exception exists when the intentional tort of an employer injures an employee or when the employer has engaged in wilful or serious misconduct . . . The exception gives an employee a cause of action in addition to the remedies provided by the act . . . [T]he employer must have engaged in intentional misconduct, as that has been defined through our case law . . . directed against its employee . . . Anything short of genuine intentional injury sustained by the employee and caused by the employer is compensable under the [a]ct . . . The exception does not include accidental injuries caused by gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of genuine intentional injury." (Citation omitted; emphasis in original; internal quotation marks omitted.) Sorban v. Sterling Engineering Corp., 79 Conn.App. 444, 449-50, 830 A.2d 372, cert. denied, 266 Conn. 925, 835 A.2d 473 (2003).
Under this exception, an employee can prevail only " by proving either that the employer actually intended to injure the plaintiff (actual intent standard) or that the employer intentionally created a dangerous condition that made the plaintiff's injuries substantially certain to occur (substantial certainty standard)." Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 257-58, 698 A.2d 838 (1997). " The substantial certainty test provides for the intent to injure exception to be strictly construed and still allows for a plaintiff to maintain a cause of action against an employer where the evidence is sufficient to support an inference that the employer deliberately instructed an employee to injure himself." (Internal quotation marks omitted.) Morocco v. Rex Lumber Co., 72 Conn.App. 516, 522, 805 A.2d 168 (2002). " What is being tested is not the degree of gravity of the employer's conduct, but, rather, the narrow issue of intentional versus accidental conduct." (Emphasis added; internal quotation marks omitted.) Sorban v. Sterling Engineering Corp., supra, 79 Conn.App. 451.
In the present case, the defendant has met its initial burden of establishing that there is no genuine issue of material fact in dispute that the plaintiff's claim is barred by the exclusivity provision of the Workers' Compensation Act. The plaintiff was engaged in the course of her employment with the defendant at the time she was injured. The defendant provided workers' compensation benefits to the plaintiff and fully complied with its duties under the Workers' Compensation Act, General Statutes § 31-275 et seq. Therefore, as a matter of law, the statute precludes imposing liability for personal injuries against the employer, unless the plaintiff presents evidence that the defendant's conduct falls within the exception articulated in Suarez v. Dickmont Plastics Corp. and its progeny.
The burden now shifts to the plaintiff to show that a genuine issue exists, demonstrating that it falls within the exception to the exclusivity provision. The plaintiff makes no argument as to the actual intent standard, but instead argues that the defendant's conduct meets the substantial certainty test. The plaintiff asserts that she has presented facts that prove the defendant intentionally created a dangerous condition and she has shown that the defendant intentionally created dangerous conditions that made her injuries substantially certain to occur. The plaintiff argues that the defendant failed to implement an effective infectious disease policy, failed to provide and properly train employees on how to use N95 masks, and failed to comply with safety standards. The substantial certainty test, however, requires a showing of more than that insufficient safety measures were taken and that there was noncompliance with safety standards.
" It is a well-settled point of law in Connecticut that an employer's noncompliance with existing health and safety regulations or departure from informal workplace safety practices, standing alone, does not give rise to tort liability when an employee suffers injury properly attributable to such institutional shortcomings." Bye v. Cianbro Corp., 951 F.Supp.2d 322, 328 (D.Conn. 2013).
The plaintiff contends that the defendant knew for months that it did not have a functioning infection control program, its employees were being exposed to infectious diseases in the workplace, and the defendant took little or no steps to implement a functioning infection control program. The plaintiff further argues that the Occupational Safety & Health Administration (OSHA) allegedly found that employees were exposed to a potentially contagious infection due to the lack of basic protective measures that should have been in place. The plaintiff has only, however, offered evidence of OSHA violations, which are insufficient to establish an affirmative intent to create a situation that would cause an employee injury. In support of these arguments, the plaintiff has submitted a letter and report issued by the Connecticut Department of Public Health dated March 8, 2012 (Plaintiff's Memorandum of Law in Opposition, Exhibit E), and an OSHA Regional News Release issued by the United States Department of Labor dated August 7, 2012 (Plaintiff's Memorandum of Law in Opposition, Exhibit H). The plaintiff attempts to affect the admissibility of these exhibits by use of an affidavit from her attorney, James V. Sabatini, which purports to attest to the fact that the exhibits are true copies. The court finds that Atty. Sabitini's affidavit is an insufficient basis upon which to secure the admissibility of these documents.
In essence, all the court is left with are the plaintiff's complaint and affidavit, which are both made up of mainly self-serving, conclusory statements. Most of the plaintiff's pleadings are either legal conclusions or conclusory statements with no admissible evidence to support them. " [A] nonmoving party's conclusory affidavits alone are insufficient grounds to deny a motion for summary judgment . . . We acknowledge that [o]n summary judgment the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion . . . A party may not, however, rely on mere speculation or conjecture as to the true nature of the facts to overcome . . . summary judgment." (Citations omitted; internal quotation marks omitted.) Walker v. Housing Authority, 148 Conn.App. 591, 597, 85 A.3d 1230 (2014). A party's " conclusory statements, in the affidavit and elsewhere . . . do not constitute evidence sufficient to establish the existence of disputed material facts." Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).
The plaintiff contends that after the defendant was notified of Patient 31's tuberculosis, it knowingly and intentionally did not disclose to its employees for thirty-six days that they may have been exposed to tuberculosis. The plaintiff speculates and concludes that the defendant " intentionally and deliberately withheld information because it knew that it was in noncompliance with OSHA regulations and industry standards regarding infectious disease workplace protection." This statement, however, is mere speculation and unsupported by admissible evidence. As stated in the facts above, the defendant's Director of Nursing and Vice President of Operations, at most, negligently failed to identify and test additional employees outside of the dental clinic that may have had contact with or been exposed to Patient 31. " Failure to take affirmative remedial action, even if wrongful, does not demonstrate an affirmative intent to create a situation that causes persons injury . . . Such delinquencies are not circumstantial evidence of a subjective belief that injury is substantially certain to occur." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-02-0172497-S, (June 3, 2004, Alvord, J.), aff'd, 277 Conn. 113, 889 A.2d 810 (2006).
" Specifically, the substantial certainty standard requires that the plaintiff establish that the employer intentionally acted in such a way that the resulting injury to the employee was substantially certain to result from the employer's conduct . . . To satisfy the substantial certainty standard, a plaintiff must show more than that [a] defendant exhibited a lackadaisical or even cavalier attitude toward worker safety . . . Rather, a plaintiff must demonstrate that his employer believed that its conduct was substantially certain to cause the employee harm." (Citations omitted; emphasis in original; internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 118, 889 A.2d 810 (2006).
A review of all the plaintiff's submissions reveals that the plaintiff has not provided evidence to show that the defendant acted intentionally in a way that the resulting injury was substantially certain to occur. Although she makes several arguments in her opposition to the motion for summary judgment, and offers some evidence, the evidence consists of self-serving, conclusory statements and inadmissible hearsay. None of it shows that the defendant acted intentionally, nor is any of the evidence particularly persuasive. The substantial certainty standard is exceptionally high for a reason. " The exclusivity provision manifests a legislative policy decision that a limitation on remedies under tort law is an appropriate trade-off for the benefits provided by workers' compensation." (Internal quotation marks omitted.) DeOliveira v. Liberty Mutual Ins. Co., 273 Conn. 487, 495-96, 870 A.2d 1066 (2005).
The case law on this subject demonstrates the exceptionally high threshold for meeting the substantial certainty standard and the plaintiff's argument and evidence fall short of meeting it. See, e.g., Burke v. Interlake, Inc., 600 F.Supp. 59 (D.Conn. 1984) (employer not liable in tort to employee injured on job despite employee's allegations that injuries were result of employer's wilful, wanton, and intentional acts in failing to warn employee of possible dangers in operating conveyor system, failing to instruct in proper use of conveyor system, failing to install adequate safety equipment, and failing to comply with state and federal laws governing safety in work place). Here, the plaintiff has failed to provide evidence that establishes a disputed question of material fact on the issue of substantial certainty.
CONCLUSION
For the foregoing reasons, the court grants the defendant's motion for summary judgment.