Phipps v. Niejadlik

399 A.2d 1256, 175 Conn. 424, 1978 Conn. LEXIS 1062

Opinions

Peters, J.

The plaintiffs, Joyce A. Phipps, Keith M. Phipps and Craig E. Phipps brought an action in the Superior Court in New Haven County for a writ of mandamus to direct the chairperson and members of the board of trustees for state colleges to recommend and the attorney general to approve certain payments under § 5-144 of the General Statutes. The defendants filed an answer and asserted two special defenses. Upon stipulation of the relevant faets, the ease was tried to the court, and summary judgment was rendered for the plaintiffs. The defendants have appealed.

The appeal raises two major issues. One concerns the effect of § 5-144, in particular the meaning to be attached to its language providing payment in the event that “any state employee sustains an injury while acting within the scope of his employment.” The second concerns the availability of mandamus as a remedy in the event that payment has been improperly withheld.

The facts as stipulated demonstrate the following: Robert W. Phipps ’was a professor of history at Southern Connecticut State College. On the evening of April 24, 1972, he was teaching a class at the college when he collapsed with shortness of breath and chest pains. Later that evening, he was pronounced dead at Yale-New Haven Hospital. The cause of death was certified as an acute myocardial infarction. At the time of death, Phipps was a thirty-seven-year-old male with a history of hypertension, who weighed 240 pounds and was five feet, ten inches tall. Phipps was survived by his widow, Joyce, and by two minor children, Keith and Craig, who are the plaintiffs in this case. The plaintiffs have made claims to the defendant trustees for sums alleged to be due them under § 5-144 of the G-eneral Statutes, but such payments were not approved by the trustees. The plaintiffs do not claim and cannot prove the existence of any causal connection between Phipps’ employment and the sustaining of the acute myocardial infarction.

The central issue on this appeal is the applicability of § 5-144 to a state employee who sustains a fatal heart attack while a state employee, fulfilling his duties at the place of his employment, without causal connection between his employment and his injury. The pertinent part of § 5-144 provides: “If any state employee sustains an injury while acting within the scope of his employment, which injury is not the result of his own wilful or wanton act, and dies as a result of such injury, and a spouse and a dependent child or children under eighteen years of age survive him, the comptroller, upon the recommendation of the appointing authority, and with the approval of the attorney general, shall draw his order on the treasurer for the sum of seven thousand five hundred dollars, payable in equal monthly instalments over a period of not less than five years to such employee’s spouse . . . and . . . monthly payments of twenty dollars for each dependent child under eighteen years of age, payable . . . until such child or children reach eighteen years of age.” (Emphasis added.) The section has not previously been interpreted by this court.

The applicability of § 5-144 to a heart attack depends in the first instance on a determination of whether such an occurrence may qualify as an “injury.” In related cases arising under the Workmen’s Compensation Act, §§ 31-275 through 31-355 of the General Statutes, this court has repeatedly held that a heart attack may be an “injury” that entitles a claimant to compensation, if the heart attack is causally precipitated by some job-related event. Stier v. Derby, 119 Conn. 44, 52, 174 A. 332; Richardson v. New Haven, 114 Conn. 389, 390, 158 A. 886; Biederzycki v. Farrel Foundry & Machine Co., 103 Conn. 701, 707-708, 131 A. 739. In a recent ease under § 5-169 (b) of the General Statutes, which provides disability benefits for “injury received while in the performance of his duty as a state employee,” this court assumed without discussion that a heart attack could be an injury. Tremblay v. Connecticut State Employees’ Retirement Commission, 170 Conn. 410, 414, 365 A.2d 1125. The court noted in Tremblay that § 5-145a of the General Statutes extended to certain employees, upon certain preconditions, a presumption that an impairment of health caused by hypertension or heart disease had been suffered in the performance of duty. The reach of § 5-145a and its attendant presumptive structure all depend upon the assumption that a heart attack is not automatically disqualified from the category of “injury.” In light of this unbroken line of authority, the trial court was therefore correct in its holding that Phipps’ heart attack could be an “injury” within § 5-144.

The applicability of § 5-144 to the case before us depends further upon an interpretation of “within the scope of his employment.” On this issue, the trial court concluded that “within the scope of employment” has the same meaning as “within the course of employment.” The court went on to define this latter phrase to cover an injury when it takes place (a) within the period of employment, (b) at a place where the employee may reasonably be, and (c) while he is reasonably fulfilling the duties of the employment or doing something incident to it. In response to the stipulated absence of causal connection between Phipps’ injury and his employment, the court expressly concluded that causal connection between injury and employment was not required by § 5-144. The trial court therefore determined that the plaintiffs were entitled to recover.

In describing the nexus of relationship between employment and benefits, the legislature has from time to time used various qualifying phrases. Thus, in chapter 65 of the General Statutes, in which § 5-144 is located, several sections, specifically §§ 5-142, 5-142a, 5-145, 5-145a, 5-145b, and 5-145c, all refer to injuries or conditions suffered “in the performance of . . . duty.” Section 5-143, entitled “Applicability of workmen’s compensation act [to state employees],” perhaps requires more, namely an injury “arising out of and in the course of his employment,” but §§ 5-146-5-151, providing allowances for survivors of state police officers, conspicuously require less, that is death “before retirement from state service from any cause.”

Thus, in context, it is clear that § 5-144’s reference to “scope of employment” requires a showing of something in addition to death during state employment. While § 5-146 is a form of life insurance, § 5-144 is not. In its historical evolution from § 47g of the 1943 Supplement to the General Statutes, § 5-144 has always required some relationship of injury to duties.¹

In fact, “in the performance of duty” is the most useful linguistic point of reference for determining what is meant by “scope of employment” in § 5-144. In § 47g of the 1943 Supplement, the progenitor of § 5-144, benefits were provided for a class then constricted (and subsequently enlarged to include all state employees) on the condition that the employee “sustains an injury ... in the performance of his duty.” There is every reason to believe that the legislature viewed “scope of employment” and “in the performance of duty” as interchangeable phrases. In § 5-145, the section immediately following the section now before this court, the legislature provides a procedure for notification of the attorney general when state employees are injured. The duty to notify is located in “[e]aeh appointing authority” ; only § 5-144, in all of the balance of chapter 65, refers to an “appointing authority.” The duty to notify, which § 5-145 thus imposes upon § 5-144 incidents, is triggered in § 5-145 by “the injury, or death resulting from an injury, of any employee in the state service, which injury was incurred in the performance of his duties.”

Interpretation of “scope of employment” as “performance of duty” is furthermore required if § 5-144 is to be assimilated in any structural way to the legislation that deals specifically with heart disease or hypertension. Concededly, the sections that provide benefits for heart disease, §§ 5-145a, 5-145b, and 5-145e, all depend upon two sets of preconditions that Phipps cannot meet. They require employment in designated categories of work legislatively determined to be especially stressful; university teaching is not within the designated categories. Furthermore they require a “clean” physical examination at the time of employment, showing no evidence of heart disease; no such examination was reported in the case before us. When the preconditions are met, their combined effect is to create a presumption that subsequent heart disease has been “suffered in the performance of his duty.” The touchstone continues to be injury in the performance of duty; only its proof is, on occasion, facilitated. Recently, this court examined the relationship between those sections and § 5-169 (b), which provides disability retirement benefits. Tremblay v. Connecticut State Employees’ Retirement Commission, 170 Conn. 410, 414, 365 A.2d 1125. The court in Tremblay held that an employee could not automatically invoke the statutory presumption of § 5-145a when a preemployment physical exam gave some indication of heart disease. Id., 415. In the absence of a dis-positive physical examination, the retirement commission was affirmed in its finding that the evidence before it did not prove that the employee’s heart attack was sustained in the performance of his duties as a state employee. Id., 414—15. The evidence in Tremblay, other than the physical examination, described certain incidents² of his employment that arguably might have precipitated a heart attack.

The holding in Tremblay carries a clear implication for this case. It would be anomalous, to say the least, for this court to hold that employees like Phipps should be entitled to benefits under § 5-144 that are less rigorously defined than those under §§ 5-145a-5-145c. If specially designated employees must still demonstrate injury in the performance of duty, so must the residual class of general state employees. All of the evidentiary discussion in Tremblay assumes that performance of duty involves some causal connection between injury and employment.

It may well be true, as the plaintiffs have argued, that “scope of employment” in tort cases involving vicarious liability of master and servant may today involve few qualifying conditions. We are not persuaded that tort law serves the same purposes, or should be governed by the same standards, that determine the reach of employee disability or death benefits. In the more closely analogous field of private accident insurance, heart attacks have been viewed as compensable injuries only when their incidence could in some causal way be related to special overexertion or strain. See 10 Couch, Insurance (2d Ed.) § 41:39 and cases cited. Those cases support the proposition that “scope of employment” means “in the performance of duty” and that each requires some showing of causality.

We hold, therefore, that § 5-144 covers an injury, including a heart attack, only (a) when it occurs within the period of the employment and (b) when it is in some way causally connected to the employee’s performance of the duties of his employment. Since the parties stipulated the absence of any causal connection whatsoever between Professor Phipps’ death and his employment, the trial court was in error in concluding that the requirements of § 5-144 had been met.

Since the plaintiffs have no entitlement to payments under § 5-144, we need not consider the extent to which mandamus is a proper remedy for payments improperly withheld under that section. Whether and under what circumstances an appointing authority’s recommendation of payment is mandatory or discretionary is not an issue so free from doubt that it should now be prejudged. See Tremblay v. Connecticut State Employees’ Retirement Commission, supra, 415-17, and Light v. Board of Education, 170 Conn. 35, 37-41, 364 A.2d 229.

There is error, the judgment is set aside and the case is remanded with direction to render judgment for the defendants.

In this opinion Cotteb, C. J., Loiselle and Longo, Js., concurred.

1 The present § 5-144 of the General Statutes is historically derived from Public Act No. 289 of the January, 1943, Session, codified as § 47g of the 1943 Supplement to the General Statutes. Entitled “Death benefits for state policemen,” the latter section bestowed benefits “[i]f any member of the state police department sustains an injury while making an arrest or while in the actual performance of police duties, or as a result of being assaulted in the performance of his duty. . . .” Numerous subsequent revisions of § 47g served to expand the classes of beneficiaries. See Rev. 1949, § 421; Sup. 1953, § 143c; Sup. 1955, § 186d; Sup. Nov. 1955, § N5; Public Acts 1957, No. 122; Public Acts 1965, No. 466.

2 During the course of Tremblay’s employment, two emergencies occurred. “The plaintiff was called to subdue an employee who was threatening his supervisor with a knife, and the plaintiff was required to minister to a heart attack victim.” Tremblay v. Connecticut State Employees’ Retirement Commission, 170 Conn. 410, 411, 365 A.2d 1125.