The CRB affirmed the trial commissioner’s finding that an assault against a teacher by a student was a material and substantial contributing factor to the teacher’s disability even though the claimant/teacher had a pre-existing condition.
In the case of a teacher who was injured by a student while trying to break up a hallway fight, the question was posed as to whether or not the claimant’s subsequent need for treatment and inability to work was truly the responsibility of the comp carrier, or whether it was the sequelae of her pre-existing multiple sclerosis.
While it is true that the claimant had been diagnosed in 2001 with MS, the disease had been progressing very slowly; with periodic check-ups and MRI’s, she was able to continue her teaching duties as a physical education teacher at full capacity, and did not have to alter her active lifestyle. The only concession was the occasional use of a cane. On the morning of the date of the injury, October 8, 2010, she was cane-free, and had gone up and down the staircasewithout trouble. Her fellow teachers testified that she had been physically fine that morning before the incident.
After a fight broke out between two students, the claimant was hit in the jaw, which was dislocated, causing her to fall backward, hitting her head. She was taken by ambulance to the hospital, where she remained for nine weeks.Following the incident, she continued to suffer from headaches, blurred and double vision, a loss of balance, difficulties with her left arm and left foot which cause her to be unable to walk, and a decrease in her cognitive function that interferes with her ability to maintain an independent lifestyle. Unlike her previous MS exacerbations, which always came on gradually, and often waned, these symptoms come on instantaneously after the assault, and have not abated.
While the initial assault and hospitalization were deemed compensable, the carrier’s argument against continuing to pay TT was that the claimant’s current symptoms were all a result of her pre-existing MS. In fact, the carrier’s doctor testifiedthat he did not believe the claimant had sustained a traumatic brain injury during the assault of October 8, 2010, and instead pointed to treatment she had undergone in 1986 or 1987 for a traumatic brain injury, which he claimed had caused an impact to her cognitive abilities long before the incident. He did not offer an explanation of how she had continued to work with no change in her teaching duties, butconceded that the work-incident most likely exacerbated her pre-existing dystonia, a neurological disorder that causes muscle contractions and twisting. He argued that the work-injury, while unfortunate, was not the cause of her current symptoms, but that they were the result of the standard progression of MS, and that had the assault never occurred, she would still have suffered the same decline.
In contrast, two other medical experts, one of them the claimant’s treating physician since 2009, testified that her condition had been “relapsing/remitting” since diagnosis, but that since the injury, was now “clearly progressive.”His medical opinion was that the incident of October 8, 2010 was, and is, a substantial contributing factor in her “disabilities over and above her pre-existing Multiple sclerosis.” This opinion was bolstered by the testimony of another medical expert that a stressful event can lead to an exacerbation of multiple sclerosis.
The commissioner agreed, and ruled in favor of the claimant, concluding that the work-incident made the claimant’s condition “materially and substantially worse” and was therefore responsible for her having been deemed totally disabled from gainful employment. The CRB wrote that on a continuum, it was difficult to show precisely where the symptoms of the pre-existing condition ended and where the symptoms of the assault began. We take our claimants as we find them: this claimant was more likely to be susceptible to becoming disabled by an assault than another claimant.
The CRB also rejected the respondents’ argument that under CGS §31-275(1)(D), the trial commissioner should have apportioned the two injuries, because the claimant’s pre-existing condition, multiple sclerosis, was not an occupational illness, and therefore, could not be apportioned.