May 4, 2004

COURT RULES IN PRISON HIV CASE EXPOSURE RISKS FOR SOME OFFICERS DEEMED OCCUPATIONAL

By Lynne Tuohy, Courant Staff Writer

The state Supreme Court Monday ruled that human immunodeficiency virus - HIV - is an occupational disease for prison guards who serve on the department's emergency response unit, but did not extend that benefit to line officers who routinely break up fights and risk exposure to the virus through contact with infected inmates.

Chief Justice William J. Sullivan, who joined the 5-2 majority, wrote a separate opinion in which he stated that no distinction should be made between emergency response unit members and those guards regularly assigned to the housing units.

"The fact that the risk was increased for special response unit members does not mean, however, that the risk was not sufficiently high to constitute an occupational disease for correction officers who were not part of the special response unit," Sullivan wrote.

The ruling means the widow and two children of deceased prison guard "John Doe" can renew their efforts to secure worker's compensation benefits. John Doe was hired as a correction officer in 1986, and volunteered for the specially trained emergency response unit a year later.

While working at the Bridgeport Correctional Institution he frequently broke up fights, including several that exposed him to a significant amount of blood. He also responded to a medical emergency in which he had to put pressure on an inmate's open wound, and received a puncture wound during a cell shakedown, when his hand struck a razor blade.

He left the department in 1991, was diagnosed as HIV-positive the following year and died in March 1993. His twins were 5 years old at the time. The worker's compensation commission first barred his widow's claim, saying it was filed more than a year after her husband's last day of work. She then claimed his death was the result of an occupational disease, and therefore fell within the three-year window for filing claims. The commission denied that claim, and the widow appealed.

The court's majority cited testimony that the HIV infection rate in the prison population is 1 in 20, in contrast to an incidence rate of 1 in 1,500 in the non-prison population.

"Breaking up altercations and riots in an inmate population with an HIV infection rate of 1 in 20, or more than 70 times greater than the infection rate of the non-incarcerated population, is peculiar to the
decedent's occupation as a correction officer in the emergency response unit," Justice Flemming L. Norcott Jr. wrote.

"The correction officer's duties of employment, however, distinctly require intimate physical contact with the inmates, often in situations where blood and other bodily fluids that transmit HIV are present,"
Norcott wrote. "This distinction is enhanced in the present case due to the decedent's involvement with the special response unit."

Justices Christine S. Vertefeuille and Peter T. Zarella dissented, saying there was no evidence that correction officers are at increased risk of contracting HIV.

"I believe that the majority unduly discounts the highly probative fact that the only work-related HIV infection in the correction department involved a health care provider infected by a needle stick," Vertefeuille wrote.

The minority also noted that the infection rate from "splash incidents" - in which blood or other bodily fluid comes in contact with the skin or mucous membranes of another - is 0.09, in contrast to 0.3 for needle stick incidents. "The risk of HIV exposure from a splash incident is so minimal, fortunately, that it is not an increased hazard of employment," Vertefeuille noted.

Attorney Joel Faxon, who represents John Doe's family, stressed that the guard's period of employment and exposure preceded the department's implementation of precautionary measures, such as the use of gloves.

"He had absolutely no other high-risk behavior," Faxon said. "He was in this environment on a daily basis. It's just a very dangerous place to be. Every couple of minutes you're walking past a person who could be a carrier and infect you."

The court's ruling revives the benefits claim but does not necessarily mean the family will prevail. Norcott stressed the guard's family still must establish that the HIV infection "actually was caused by his employment as a correction officer in that unit, and not another source." Faxon was undaunted, saying it's just "a process of elimination."

Jon Pepe, a correction officer and president of the Connecticut State Prison Employees Union/AFSCME Local 391, said there was no justification for the court's distinguishing emergency response unit members from the line officers.

"As part of our duties, we are all considered emergency responders if a fight goes down," Pepe said. "We don't call the emergency response unit. We call a code and the correction officers within the facility break up the fight and get exposed to the blood. ...We're all on the emergency response team by our job descriptions."

Pepe said about 200 officers, out of 4,000 statewide, are designated as emergency responders in the event a major disturbance or fire breaks out. He also said that every officer on a daily basis is assigned a post and is given emergency response instructions specific to that post and that day.

Union officials will meet, Pepe said, and plan a course of action in response to the ruling. They likely will seek regulations that expand the ruling to all officers, he said. "Hopefully the state of Connecticut will recognize that this applies to all correction officers."

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