Sapko v. State , No. 18680.

305 Conn. 360

44 A.3d 827

Christine L. SAPKO,

v.STATE of Connecticut et al.

No. 18680.

Supreme Court of Connecticut.

Argued Oct. 26, 2011.

Decided June 12, 2012.

John J. Quinn, Hartford, with whom, on the brief, was John J. Quinn, Jr., for the appellant (plaintiff).

Lawrence G. Widem, assistant attorney general, with whom, on the brief, were Richard Blumenthal, former attorney general, and Philip M. Schulz, assistant attorneygeneral, for the appellee (named defendant).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, MCLACHLAN and HARPER, Js.

PALMER, J.

The plaintiff, Christine L. Sapko, appeals from the judgment of the Appellate Court, which affirmed the decision of the workers' compensation review board (board) upholding the decision of the workers' compensation commissioner for the eighth district (commissioner) denying her claim for survivor's benefits pursuant to General Statutes § 31–306¹ of the Workers' Compensation Act (act), General Statutes § 31–275 et seq. The plaintiff had sought survivor's benefits following the death of her husband, Anthony S. Sapko (decedent), an employee of the named defendant, the state of Connecticut.² The commissioner denied the plaintiff's claim following the commissioner's determination that the decedent's simultaneous ingestion of excessive quantities of Oxycodone, which had been prescribed for compensable work injuries, and Seroquel, which had been prescribed for an unrelated case of major depression, constituted a superseding cause of his death and, therefore, that the decedent's compensable work injuries were not the proximate cause of his death. After the board upheld the commissioner's decision, the plaintiff appealed to the Appellate Court, claiming that the board incorrectly had concluded that the commissioner's application of the superseding cause doctrine was proper in light of Barry v. Quality Steel Products, Inc., 263 Conn. 424, 446, 820 A.2d 258 (2003), which abrogated that doctrine in most tort contexts.³ The Appellate Court agreed with the plaintiff that the board incorrectly had concluded that the superseding cause doctrine applied to the present case but concluded that this impropriety was harmless because the record otherwise supported the board's determination that the commissioner properly had applied the law to the facts in deciding the issue of proximate cause. See Sapko v. State, 123 Conn.App. 18, 26, 30, 1 A.3d 250 (2010). We granted the plaintiff's petition for certification to appeal limited to the following issue: “Did the Appellate Court properly uphold the determination of the compensation review board that the compensable work injuries were not the proximate cause of the decedent's death?” Sapko v. State, 298 Conn. 923, 4 A.3d 1229 (2010).

We conclude, contrary to the predicate determination of the Appellate Court, that the board correctly concluded that the superseding cause doctrine applies to certain cases under the act and, further, that the commissioner's finding that superseding events broke the chain of proximate causation between the decedent's compensable work injuries and his death constituted a proper application of the law to the facts. We also reject the plaintiff's claim that the commissioner's finding is incompatible with our statement in Birnie v. Electric Boat Corp., 288 Conn. 392, 953 A.2d 28 (2008), that an injured employee is entitled to recovery under the act if he can demonstrate that his employment contributed to the injury “in more than a de minimus way.” Id., at 413, 953 A.2d 28. Accordingly, we affirm the judgment of the Appellate Court, albeit on the basis of different reasoning.

The facts, as found by the commissioner and accepted by the board, are set forth in the opinion of the Appellate Court: “The [plaintiff] is the dependent spouse of [the decedent]. She and the decedent were the parents of two minor children. On August 18, 2006, the decedent died. The decedent's cause of death was the result of multiple drug toxicity due to the interaction of excessive doses of Oxycodone and Seroquel.... In addition to identifying the cause of death as multiple drug toxicity, the medical examiner's report also indicated that the nature of the decedent's death was an accident and not suicide....

“Until the time of his death, the decedent was employed as a correction officer for the state of Connecticut. The decedent's employment with the state began December 8, 1995, and followed his twenty-one year tenure as [a] police officer for the city of New Britain.

“In the course of his employment as a correction officer, the decedent experienced four incidents [that] gave rise to claims for workers' compensation benefits. [These incidents occurred on February 13, 2001, September 25, 2005, December 10, 2005, and May 16, 2006.] Following the May 16, 2006 incident, the decedent remained out of work due to a compensable back injury. Between March 15, 2005, [and] August 1, 2006, the decedent was treated for back pain by ... Mark Thimineur [a physician with] the Comprehensive Pain and Headache Treatment Center, LLC. During the period of this treatment the decedent was prescribed various medications. The prescribed drugs included: Oxycodone, Zanaflex, Kadian, Celebrex, Roxicodone, Avinza, Lidoderm patches and Duragesic.... The record before the [commissioner] reflected that the Comprehensive Pain and Headache Treatment Center, LLC, counseled the decedent on the proper use of the drugs prescribed for pain control and required the decedent to participate in a controlled substances agreement....

“Beginning in December, 1999, the decedent started treatment for major depression with ... Edgardo D. Lorenzo, a psychiatrist. The decedent [went to] ... Lorenzo [as a patient] until the time of [the decedent's] death. The week prior to his death, the decedent complained to ... Lorenzo of depression and racing thoughts. It was for these symptoms that ... Lorenzo prescribed [the antipsychotic medication] Seroquel.

“The record also indicated that, at the time of his death, the decedent's level of Oxycodone was twenty times higher than the therapeutic dosage, and the level of Seroquel was in excess of five times the therapeutic dosage. The [commissioner] found that both drugs can be taken safely if taken in proper dosages.” ⁴ (Internal quotation marks omitted.) Sapko v. State, supra, 123 Conn.App. at 21–23, 1 A.3d 250.

“At the hearing before the commissioner, the parties presented the opinions of several medical professionals. Marc J. Bayer, chief of the toxicology division at the University of Connecticut School of Medicine, stated that the decedent's death was the result of the combined drug toxicity of Oxycodone and Seroquel. Unlike the conclusion of Frank Evangelista, an associate medical examiner from the office of the chief medical examiner, who concluded that the decedent's death was accidental, Bayer concluded that there was insufficient evidence to determine whether the decedent deliberately killed himself or if his death was the accidental result of a deliberate act. He further noted that although the level of Oxycodone in the decedent's system was twenty times higher than the therapeutic dosage, it was unlikely that such a dosage could have caused the decedent's death in the absence of the Seroquel. [Bayer also testified that narcotic users do not usually take more Seroquel than prescribed because it is an antipsychotic drug that does not produce a comforting feeling or cause the user to become high.] The commissioner found Bayer to be credible and persuasive.

“The commissioner also examined the deposition [testimony] of Lorenzo, the decedent's psychiatrist. Lorenzo began treating the decedent on December 20, 1999, prior to any of the decedent's compensable injuries, at which time he diagnosed the decedent with major depression. The decedent did not claim his treatment with Lorenzo as part of his workers' compensation case, and Lorenzo's treatment notes do not reflect a relationship between the decedent's injuries and his need for [psychiatric] treatment. Lorenzo prescribedSeroquel to treat the decedent's racing thoughts and depression and for mood stabilization on August 9, 2006, nine days prior to the decedent's death. In Lorenzo's view, the decedent's death was accidental. The commissioner did not find Lorenzo to be credible. He explicitly disregarded Lorenzo's conclusion that the decedent's workplace injuries made him more depressed. [The commissioner also found that the decedent received repeated instructions and counseling regarding the proper use of the prescribed controlled substances and entered into a controlled substances agreement as part of his treatment.]” Id., at 26–27, 1 A.3d 250.

On the basis of this evidence, the commissioner found that there was no causal relationship between the decedent's compensable injuries and his need for psychiatric treatment, including his treatment with Seroquel. He also concluded that the “[e]levated [level] of Oxycodone by itself did not cause [the decedent's] death.” Rather, the commissioner found that the decedent's “ingestion of excessive quantities of Oxycodone and Seroquel, [al]though accidental, constitute[d] a superseding cause of his death.” ⁵ He also concluded that “[the decedent's] work injuries of February 13, 2001, September 25, 2005, December 10, 2005, and May 16, 2006, were neither a substantial factor nor the proximate cause of [the decedent's] death.” ⁶

The plaintiff appealed to the board from the decision of the commissioner, claiming that, in light of our abrogation of the superseding cause doctrine in Barry, the commissioner improperly had relied on that doctrine in concluding that the decedent's compensable injuries were not the proximate cause of his death. The board disagreed, explaining that, because Barry was predicated on the change in our tort law away from contributory negligence to a system of comparative fault and apportionment, Barry applies to negligence...