State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Nolan v. Brennan Concrete Corporation

CASE NO. 1362 CRD-7-91-12

COMPENSATION REVIEW BOARD/DIVISION

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 4, 1993

JAMES NOLAN

CLAIMANT-APPELLANT

v.

BRENNAN CONCRETE CORPORATION

EMPLOYER

and

GENERAL ACCIDENT INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Serge G. Mihaly, Esq. and Richard Kascak, Jr., Esq., Mihaly & Kascak, 925 White Plains Road, Trumbull, CT 06611.

The respondents were represented by Stephen G. Ekern, Esq. and Margaret Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

This Petition for Review from the December 26, 1991 Finding and Dismissal of the Commissioner for the Seventh District was heard December 18, 1992 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners Angelo dos Santos and Donald H. Doyle, Jr.

OPINION

JESSE FRANKL, CHAIRMAN. The claimant has petitioned for review from the Seventh District Commissioner’s December 26, 1991 Finding and Dismissal. The claimant sustained injuries as a result of an altercation at his place of employment. On appeal, the claimant contends that the trial commissioner improperly (1) failed to make complete findings of fact, (2) concluded that the claimant’s injury did not arise out of his employment and (3) concluded that the claimant’s injury was the result of the wilful and serious misconduct of the claimant. Because the commissioner’s findings fail to resolve important factual issues necessary to address the questions of whether the claimant’s injury arose out of his employment or was the result of his wilful and serious misconduct, we reverse and remand the case for further proceedings.

There is no dispute that the claimant was injured in the course of his employment with the respondent-employer. On August 31, 1990, the claimant was employed by the respondent-employer as a member of a crew pouring concrete for a parking garage at the Danbury Mall. On that day, the claimant and a fellow employee, George Stanley, were involved in an altercation during which both men fell into liquid concrete, the claimant striking and injuring his right master hand against a steel reinforcing rod.

What was disputed before the commissioner were the events which led to the altercation. Three witnesses testified to different versions of those events.

The claimant’s testimony may be summarized as follows. On August 31, 1990, the claimant was assigned the task of pulling concrete with a straight edge, a job which required two people. The claimant, who is white, had never worked directly with George Stanley, who is black, before that day, but the claimant had observed Stanley working on the job site and formed the impression that Stanley “was not a worker . . . [and] just did not seem the type to help you out.” Transcript of April 12, 1991, p. 14. The claimant may have told Stanley of his feelings prior to August 31. The claimant also testified that Stanley had an argument with another cement finisher a couple of days before.

The claimant had previously told the foreman that he did not want to work with Stanley. On August 31, 1990, the claimant and Stanley were initially assigned to different work crews. Just before the altercation, a member of the claimant’s crew was removed and Stanley was designated to replace him. Because it was hot and the concrete was setting, tempers were getting a little bit hot, too. The faster the concrete is pulled, the easier it is to do the other tasks necessary to complete the job. The claimant was ready to operate the straight edge to pull the concrete and called Stanley “to get your ass over here and do some work.” Transcript of January 24, 1991, p. 16. The claimant testified that as he bent down near the straight edge, he was attacked from behind by Stanley. According to the claimant, Stanley put his hands around the claimant’s throat and said “nobody talks to me like that.” Transcript of January 24, 1991, p. 19. After that, both fell and got back up. According to the claimant, Stanley again put his hands on the claimant’s throat. The claimant then hit Stanley in order to get free. As other laborers jumped on the two combatants to break up the fight, the claimant fell and injured his hand.

George Stanley’s testimony regarding the events of August 31, 1990 differed from those related by the claimant. Stanley testified that he was doing his work away from the claimant when somebody called him. Stanley responded, “wait until I get through.” Transcript of April 12, 1991, p. 58. The claimant, according to Stanley, again ordered Stanley to come over to where the claimant was working. This prompted Stanley to respond, “hey, who are you? You ain’t my boss. My boss told me . . . to do this over here. If he told me to do this, then that’s what I'm going to do.” Transcript of April 12, 1991, p. 58. The claimant then replied, “get your fucking ass over here.” Transcript of April 12, 1991, p. 58. The profanity caused Stanley to get mad, and he responded, “wait a minute, now wait, you’re talking out of turn, now . . . [y]ou must be looking for something . . . I’ll come over there, but it won’t be to finish no cement.” Transcript of April 12, 1991, p. 58. After the claimant again ordered Stanley to come to him, Stanley walked toward the claimant removing his gloves and glasses and putting down his trowel on the way. Stanley testified that he went to the claimant in order to “straighten him out.” Transcript of April 12, 1991, p. 68. According to Stanley, when he reached the claimant, the claimant was bent over working on the cement with a trowel. After Stanley said something, the claimant straightened up and replied, “get your fucking ass, we got to get this cement finished here.” Transcript of April 12, 1991, p. 59. Stanley then said, “let me tell you what, if you’re in a hurry, you do it.” Transcript of April 12, 1991, p. 59. Stanley testified that “when [the claimant] moved, I grabbed him. Well, he had the trowel in his hand, I didn’t have nothing. So I grabbed him. . .[W]hen he turned around towards me, I don’t know what happened but he lost the trowel . . . . And we grabbed one another. He grabbed me, I grabbed him . . . . We scuffled there and we fell in the concrete . . . . [T]hat’s when [the other laborers] separated us.” Transcript of April 12, 1991, pp. 59-60. Stanley testified that the scuffle lasted just a few seconds.

The only other witness to the altercation to testify before the trial commissioner was Leon Stanley, the son of George Stanley. The younger Stanley was working as a laborer at the job site on August 31, 1990 and had been working there for some weeks prior thereto. Leon Stanley testified that he knew the claimant from his work on the Danbury Mall job site. He stated that the claimant directed profanity only at black employees and it seemed like the claimant was “prejudiced against blacks.” Transcript of June 7, 1991, p. 19. Shortly before the altercation, Leon Stanley was working about ten feet from his father. He heard the claimant tell George Stanley to “get his fucking ass over here right now” while the older Stanley was still working. Transcript of June 7, 1991, p. 8. He further testified that the claimant “kept telling my father, get his fucking ass over here” and that the claimant said he didn't care about the older Stanley’s mother, who had passed away twelve years before. Transcript of June 7, 1991, p. 9. Then, according to the witness, George Stanley was angry, walked toward the claimant removing his gloves and glasses. When George Stanley reached the claimant, they were both standing facing each other. They both grabbed each other and started tussling although no punches were thrown. Both the claimant and George Stanley then fell and the claimant fell on his hand. Immediately thereafter, Leon Stanley and another laborer broke up the fight. Leon Stanley further testified that his father did not say anything during the entire incident.

Based on the testimony, the trial commissioner made the following findings of fact relevant to the issue of compensability. Between August 22, 1990, the date on which he began to work for the respondent-employer at the Danbury Mall parking garage, and the altercation of August 31, 1990 in which he was injured, the claimant and George Stanley had conversations characterized by the claimant as being unpleasant, the claimant regarding George Stanley as not being a worker. On August 31, 1990, the claimant had specifically told the boss that he did not want to work with George Stanley. On that day, the claimant and George Stanley were in fact initially assigned to different crews of the respondent-employer on the same job site, but just before the altercation a member of the claimant’s crew was removed and George Stanley was designated to replace him. At that point, the claimant called out to George Stanley to “get your ass over here” or to “get your fucking ass over here” because Stanley was needed on the straight edge used to pull down or level the liquid concrete before it set. The trial commissioner then noted that the claimant contends that he was, without provocation on his part, assaulted from behind by George Stanley while George Stanley and his son contend that the claimant and Stanley squared off against each other face to face. Based on the evidence the commissioner then concluded that “[t]he altercation in which [the] claimant sustained his injury was the result of the wilful and serious misconduct of the claimant” and further that the “[c]laimant’s injury did not arise out of his said employment.” Accordingly, the trial commissioner dismissed the claim. This appeal followed.

The claimant sought amplification of the commissioner’s findings through a Motion to Correct and a Motion for Articulation. In the Motion to Correct, the claimant requested that the commissioner make findings as to the cause of the altercation. The claimant also sought to add fifteen additional findings drawn from George Stanley’s version of the events leading up to the altercation. In the Motion for Articulation, the claimant asked the commissioner to articulate the wilful and serious misconduct of the claimant and to articulate in what fashion the claimant’s injuries arose if they did not arise out of his employment. The commissioner denied both motions.

ARISING OUT OF EMPLOYMENT

Connecticut has developed the following rule to determine whether a workplace assault between fellow employees is considered to arise out of the employment: “If injury results as a natural consequence of the conditions of the employment, recovery of compensation is not necessarily defeated by the fact that it is suffered in the course of a fight in which the claimant becomes involved with another employee. The question is whether taking all the facts into consideration the conditions of employment are the legal cause of the injury. But the essential connecting link of direct causal connection between the personal injury and the employment must be established before the act becomes operative. The personal injury must be the result of the employment and flow from it as the inducing proximate cause. The rational mind must be able to trace the resultant personal injury to a proximate cause set in motion by the employment and not by some other agency, or there can be no recovery . . . . That the injury is immediately caused by a fight between two employees does not necessarily break the chain of causation between the conditions of employment and the injury where it results from the normal reactions of human nature due to conditions under which the men are thrown together in a common employment . . . .

If, however, . . . the fight results solely from a feeling of anger or hatred by one employee for another or from ill-will between them, though it occurs in the course of the employment, it does not arise out of it . . . . In such a case he has voluntarily departed from the duties of his employment and embarked upon an enterprise of his own not contemplated by the terms of his employment . . . . But even though personal ill-feeling between employees engaging in a fight may exist, it still may not enter the situation to such an extent that it is to be considered as the legal cause of the injury.” (Citations omitted; internal quotation marks omitted.) Stulginski v. Waterbury Rolling Mills Co., 124 Conn. 355, 361-63 (1938). Under this rule, the reason for or cause of the workplace assault is the key fact in determining whether the fight and the resulting injury arose out of the employment. Id.; see also Link v. Shelton, 186 Conn. 623, 628-29 (1982) (“Assaults, for example, are considered as arising out of and in the course of employment . . . if the reason for the assault was a quarrel having its origin in the work.”); Willis v. Taylor & Fenn Co., 137 Conn. 626 (1951).

In the present case, the trial commissioner’s findings in support of his conclusion that the injury did not arise out of his employment did not address the question of what was the cause of the altercation. A finding that the cause of the altercation was the claimant’s desire, though inappropriately expressed, to get the job done would have its origin in the work and support compensability. On the other hand, a finding that the cause of the altercation was the claimant’s personal feelings toward George Stanley unrelated to the employment or due to racial motivations would not have its origin in the work and require a denial of compensation. “[It] is the duty of a commissioner to find the relevant subordinate facts upon which his conclusions are based . . . .” Northam v. Bunnell Transportation Co., Inc., 118 Conn. 312, 313 (1934). Because the findings here do not resolve the issue of how the fight occurred and the reasons for the fight, the commissioner’s findings do not provide sufficient basis to support any conclusion with respect to the issue posed. We, therefore, must remand the matter to the commissioner to remedy this unresolved factual lacuna.

WILFUL AND SERIOUS MISCONDUCT

Connecticut has developed the following rule to determine whether recovery will be denied, pursuant to General Statutes Sec. 31-284, for an otherwise compensable workplace injury which has arisen out of and in the course of employment because the injury was caused by the “wilful and serious misconduct” of the injured employee: “Misconduct is any improper or wrong conduct. And when such misconduct is not trivial but grave in character, it becomes the serious misconduct of the statute, that is, improper conduct of a grave and aggravated character. Whether misconduct is serious is to be determined from its nature and not from its consequences . . . . Misconduct which exposed the [claimant] to serious injury would be serious misconduct. Not only must the misconduct be of this grave character, but under the statute it must also be wilful. By wilful misconduct is meant either intentional misconduct, that is, such as is done purposely with knowledge, or misconduct of such a character as to evince a reckless disregard of consequences to himself by him who is guilty of it.” (Citation omitted) Gonier v. Chase Companies, Inc., 97 Conn. 46, 55-56 (1921). “[W]ilful and serious misconduct means something more than ordinary negligence . . . . No misconduct which is thoughtless, heedless, inadvertent or of the moment, and none which arises from an error of judgment, can be ‘wilful and serious misconduct.’” Id., 56. Additionally, in a later case, our Supreme Court explained that “the injured employee [must have] appreciated at the time of injury that he was exposing himself to serious injury” and that “an exposure by one who had no adequate appreciation of the liability to such injury would not amount to serious misconduct.” Mancini v. Scovill Mfg. Co., 98 Conn. 591, 597 (1923). Thus, in order to determine that an employee was guilty of serious and wilful misconduct causing his injuries, it is necessary to make factual findings as to (1) the nature of the misconduct, (2) the claimant’s appreciation of the risk to which he was exposing himself in engaging in the improper conduct and (3) the mental state or intent of the injured employee in engaging in the misconduct.

In the present case, the trial commissioner’s findings in support of his conclusion that the injury was the result of the claimant’s wilful and serious misconduct did not address these relevant questions. A finding that the claimant’s comments to Stanley were thoughtless or of the moment or that the claimant did not appreciate that his comments exposed him to serious injury would not rise to the level of a disqualification pursuant to General Statutes Sec. 31-284. On the other hand, a finding that the claimant’s comments were made with the intent to provoke Stanley to violence against the claimant would support a denial of compensation. “It is the duty of the commissioner to find the relevant subordinate facts upon which his conclusions are based . . . .” Northram v. Bunnell Transportation Co., Inc., supra. Because the findings here do not resolve issues surrounding the claimant’s mental state at the time of his comments to Stanley and the fight between them, the commissioner’s findings do not provide sufficient basis to support any conclusion with respect to the misconduct issue. We, therefore, must remand the matter to the commissioner to remedy this unresolved factual lacuna.

The Finding and Dismissal is vacated and the case is remanded to the trial commissioner for further proceedings consistent with this opinion.

Commissioners Angelo dos Santos and Donald N. Doyle, Jr. concur.

Workers’ Compensation Commission

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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