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Spindler v. Med-Center Home Health Center

CASE NO. 1474 CRB-7-92-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 28, 1994

MARIA SPINDLER

CLAIMANT-APPELLANT

v.

MED-CENTER HOME HEALTH CENTER

EMPLOYER

and

AETNA LIFE & CASUALTY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Stephen C. Gallagher, Esq., Gallagher & Gallagher, 30 Main Street, Suite 201, Danbury, CT 06810.

The respondents were represented by Margaret Corrigan, Esq. and Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

This Petition for Review from the July 20, 1992 Finding and Dismissal of the Commissioner for the Seventh District was heard May 21, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners George A. Waldron and Donald H. Doyle, Jr.

OPINION

JESSE FRANKL, CHAIRMAN. The claimant has petitioned for review of the Seventh District Commissioner’s July 20, 1992 Finding and Dismissal. On appeal, the claimant contends that the trial commissioner improperly determined that her injury sustained in an automobile accident did not arise out of and in the course of her employment. We affirm the trial commissioner.

The trial commissioner found the following facts. On August 1, 1991, the date of her injury, the claimant worked for the respondent-employer as a home health care aide. This work involved the rendering of health and personal care services to patients in their homes. The claimant’s schedule prepared by her employer for the week that included August 1, 1991, called for the claimant to be at the home of William Lathrop from 8:00 a.m. to 12:00 noon; then to be at the home of Stephanie Deksnys, some ten minutes away, from 12:30 p.m. to 2:30 p.m.; then to return to the Lathrop home and remain there from 2:30 p.m. to 3:30 p.m.; and then to be at the home of Pauline Bozzutto from 4:00 p.m. to 6:00 p.m. The claimant provided her own transportation in going to, from and between her scheduled work assignments, and she was neither paid for her travel time nor compensated for the mileage involved.

The claimant testified that on the two days a week that she was to see the Deksnys patient, she worked at the Lathrop home from 8:00 a.m. to 11:00 a.m., went to the Deksnys home from 11:30 a.m. to 1:30 p.m. and completed her five hours of care for Mr. Lathrop from 2:00 p.m. to 4:00 p.m. Ann Lathrop, the daughter-in-law of William Lathrop and the person who engaged the services of the respondent-employer on his behalf, did not particularly care whether the claimant adhered strictly to the hours as officially scheduled, her main concern being only that the entire routine required for the proper daily care of Mr. Lathrop was fulfilled. There was never any complaint that the claimant failed to fulfill such routine.

On August 1, 1991, the claimant left the Lathrop home at about 11:00 a.m., with the knowledge of Ann Lathrop but without the approval, consent or knowledge of the respondent-employer. At about 11:05 a.m., the claimant was involved in a motor vehicle accident which occurred approximately one-quarter of a mile from the Lathrop home. As a result of the accident, she claims to have suffered injury to her back and neck.

The claimant contends that, at the time of the accident, she was going directly to her next work assignment at the home of Stephanie Deksnys and that the injuries which occurred as a result of the automobile accident arose out of and in the course of her employment. The respondents contend that, at the time of the motor vehicle accident giving rise to her injury, the claimant was not authorized or required by the respondent-employer to be on the road.

The trial commissioner noted that the disputed claim involved “a question of whether or not the claimant was injured at work, and becomes a matter of credibility.” Finding and Dismissal, paragraph 13. The trial commissioner then concluded that “the claimant has failed to sustain her burden of proof as to having sustained an accidental injury to her back and neck on August 1, 1991 which arose out of and during the course of her employment;” Finding and Dismissal, paragraph 14; and dismissed the claim. This appeal followed.

The claimant did not file a motion to correct. Consequently, the commissioner’s factual findings must stand. Vanzant v. Hall, 219 Conn. 674, 681 (1991); Mack v. Blake Drug Co.,152 Conn. 523 (1965); Marzano v. Luis, 10 Conn. Workers’ Comp. Rev. Op. 129, 1181 CRD-5-91-2 (1992).

Arguing that it was clearly contemplated by the employer that the claimant would be traveling between assignments during the course of her workday and that it was further contemplated that the claimant would be “splitting” the Lathrop assignment by starting there in the morning, traveling to another assignment and returning to the Lathrop home in the afternoon, the claimant contends that the application of the principles set forth in Dombach v. Olkon Corporation, 163 Conn. 216 (1972), requires the reversal of the commissioner’s decision. We disagree.

The claimant correctly points out that under Dombach, the fact that an injury occurs on a public highway does not preclude compensability. The nature of the claimant’s work clearly required her to travel on the highways between her assignments. That fact alone, however, is not sufficient to support compensability. Under Dombach, “[t]he critical question is whether the [claimant’s] use of the highways [at the time of the accident] could be considered as a benefit to the employer.” Id., 222-23. Ultimately, however, “[w]hether an employee has departed from his employment in such a manner that his subsequent injury is not causally related to it is ordinarily a question of fact . . . and the burden rested on the [claimant] to prove that [her] . . . accident arose in the course of [her] employment and was causally traceable to it.” True v. Longchamps, Inc., 171 Conn. 476, 479 (1976).

Because we do not retry the facts, it was the province of the commissioner to resolve the disputed factual issue. Fair v. People’s Savings Bank, 207 Conn. 535, 538-42 (1988). Our appellate review is limited to determining whether the conclusion reached resulted from an incorrect application of the law or from inferences illegally or unreasonably drawn from the facts found. Id., 539. We decide, not whether we would have drawn the same inferences or found the same facts, but whether the commissioner could have reasonably done so. Pollio v. Conservation Commission, 32 Conn. App. 109, 116 (1993); Schofield v. Schofield, 12 Conn. App. 521, 523-24 (1987).

Here, the commissioner specifically noted that credibility was a matter central to his determination. “The trier of the facts determines with finality the credibility of the witnesses and the weight to be accorded their testimony.” (Internal quotation marks omitted.) Miller v. Kirshner, 225 Conn. 185, 198 (1993); State v. Robinson, 213 Conn. 243, 256 (1989). This means that the commissioner was free to believe some, all or none of the claimant’s testimony. State v. Sherbacow, 21 Conn. App. 474, 480, cert. denied, 216 Conn. 808 (1990). The commissioner found that the claimant was scheduled to be at the Lathrop home until noon and, perhaps more importantly, that she was not scheduled to arrive at the Deksnys home until 12:30 p.m. In light of these facts found by the commissioner, his conclusion that the claimant had failed to sustain her burden of proving that she was pursuing her work duties while traveling by car at 11:05 a.m. did not result from an incorrect application of law or from inferences illegally or unreasonably drawn from the facts found. The commissioner’s conclusion must therefore stand. Fair v. People’s Sayings Bank, supra.

Accordingly, we affirm the trial commissioner and deny the appeal.

Commissioners George A. Waldron and Donald H. Doyle, Jr. concur.

Workers’ Compensation Commission

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