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Searles v. Town of West Hartford Board of Education

CASE NO. 1617 CRB-1-93-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 28, 1994

SUZANNE SEARLES

CLAIMANT-APPELLANT

v.

TOWN OF WEST HARTFORD BOARD OF EDUCATION

EMPLOYER

and

TRAVELERS INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented at the trial level by Philip L. Steele, Esq., 5 Linden Place, Hartford, CT 06106. On appeal the claimant appeared pro se.

The respondent-employer was represented by Marjorie S. Wilder, Esq., Corporation Counsel, Town of West Hartford, Town Hall Common, 50 South Main Street, West Hartford, CT 06107. The respondent-insurer did not appear or participate in the proceedings.

This Petition for Review from the January 7, 1993 Finding, Award and Dismissal of the Commissioner acting for the First District was heard January 14, 1994 before a Compensation Review Board panel consisting of Commissioners John A. Arcudi, George A. Waldron and Nancy A. Brouillet.

OPINION

JOHN A. ARCUDI, COMMISSIONER. Claimant, pro se in these appellate proceedings, seeks to reverse the dismissal of her claim. On March 3, 1987, she was employed by the respondent municipality as a teacher.1 That day she called in sick due to a feeling of dizziness. But she then drove to school, despite the sick call, in order to bring a lesson plan to school. This was not required either by policy or request of the respondent. When the car she was driving slid on ice on King Phillip Drive, a public street in the town of West Hartford, she was injured. She alleges head injuries and stress and resultant disability as a result of that auto accident, which she claims arose out of and during the course of her employment. The commissioner found the accident did not occur on property under the control of the employer nor was the claimant teaching or required to be physically present at the school on that date and denied benefits, also finding the accident did not arise out of or in the course of employment.

On June 21, 1982 claimant underwent surgery to correct a congenital ruptured aneurysm known as a “Berry Aneurysm.” On July 19, 1984 she again had surgery for another brain aneurysm. Both aneurysms were congenital in nature and claimant testified that they were unrelated to her employment; but she claims benefits for those disabilities. The commissioner denied the claim.

Relying on the testimony of claimant’s treating physician, the commissioner found that claimant’s disability from teaching was the result of her 1982 congenital aneurysm and that the condition was unchanged since 1982. He also found she sustained no physical or head trauma from the March 1987 accident.

The claimant contended in her reasons of appeal: (1) that the commissioner failed to address her claim of injury due to stress and harassment arising in and out of the course of her employment; and (2) that the commissioner applied an incorrect standard of law as to whether the claimant was doing something incidental to her employment for the joint benefit of her employer and herself at the time of her automobile accident.

The trier held, on the basis of the evidence presented by Dr. Edward Fredericks who treated claimant from August 27, 1982 through 1991, that she was disabled from teaching and had been so disabled since 1982. He also found that her return to teaching at the beginning of the 1985-1986 academic year was for “rehabilitative purposes”.

As this is a pro se appeal, and although claimant has not complied with all procedural requirements, we have treated “Claimant’s Reasons For Appeal” dated and received July 6, 1993 as equivalent to a brief.2

Claimant seems to argue that the aneurysm suffered in 1982 was causally related to her employment. Written notices of claim for that injury were filed in February, 1988. Notices of claim, filed in 1988, for a 1982 aneurysm were filed well beyond the period permitted in Sec. 31-294.3

As to the issue of whether the automobile accident of March 3, 1987 arose in and out of the course of employment, our inquiry is limited to the standard of review set out in Fair v. People’s Savings Bank, 207 Conn. 535 (1988). Claimant herself testified she was not required to appear at her work site, on a day when she had called in sick, in order to drop off a lesson plan. See paragraph #10 and the January 28, 1992 Transcript, p. 118-20. Numerous appellate court decisions have held that for an injury to be compensable it must occur “within the course of employment...(a) within the period of the employment; (b) at a place the employee may reasonably be; and (c) while the employee is reasonably fulfilling the duties of the employment or doing something incidental to it.” McNamara v. Hamden, 176 Conn. 547, 550-51 (1979).

Luddie v. Foremost Ins. Co., 5 Conn. App. 193, 196 (1985) ruled, “The general rule is that ‘[a]n injury sustained on a public highway while going to or from work is ordinarily not compensable.’ Dombach v. Olken Corporation, 163 Conn. 216, 222 (1972); McKiernan v. New Haven, 151 Conn. 496, 498-99 (1964). The exceptions to the general rule ‘arise in situations where the contract of employment itself involves, in its actual performance, or as an incident annexed to it with the knowledge and consent of the employer, the use of public highways’; id., 499; or that the employer contracts to furnish transportation to or from work. Lake v. Bridgeport, 102 Conn. 337 (1925).”

Whether the claimant at the time of the automobile accident was performing duties incidental to her employment is largely a factual determination. See e.g., True v. Longchamps, Inc., 171 Conn. 476 (1976). Here, the commissioner found claimant was neither required nor requested to drive to school to drop off a lesson plan that day. That finding is supported by the evidence. Therefore, the conclusion that claimant’s automobile accident did not arise in and out of the course of her employment is not “so unreasonable as to justify judicial interference”. Bailey v. Mitchell, 113 Conn. 721, 725 (1931).

Finally, on January 21, 1993 claimant filed a Motion to Submit Additional Evidence. That motion was denied August 31, 1993. On December 30, 1993 she filed another similar motion seeking to submit: (1) “Agreement between the West Hartford Board of Education and the West Hartford Education Association July 1, 1988 to June 30, 1990,” (2) a two-page written statement of claimant’s remarks before this tribunal on August 13, 1993, and (3) CT-scans and X-rays. We now deny that subsequent motion for many of the same reasons as our previous denial. We then noted Administrative Regulation Sec. 31-301-94 requires a movant to indicate the basis of the claim of materiality [of the evidence claimant seeks to proffer] and the reasons why it was not presented in the proceedings below. In her Motion to Submit Additional Evidence claimant stated, inter alia:

Claimant herein requests the Compensation Review Board to hear her motion to submit additional evidence in order to accurately and judiciously judge the merits of her case. Per Commissioner Arcudi’s letter to claimant dated August 31, 1993 in which he states that claimant may “... request the Compensation Review Board to accept these documents at a future hearing concerning your issues on appeal...”, claimant herein documents in writing her request that said documents be heard. Claimant’s brief dated July 6, 1993, “Agreement between the West Hartford Board of Education and the West Hartford Education Association July 1, 1988 to June 30, 1990,” and the two-page written encodement of claimant’s words verbalized before the tribunal on August 13, 1993 as well as the CT-scans and skull X-rays placed before the tribunal (on the table) are herein offered as judiciously worthy of review by the tribunal.

Her new December 1993 motion fails to state how the evidence she seeks to proffer is material. The evidentiary hearings were held August 28, 1991 and January 28, 1992. The “Agreement between the West Hartford Board of Education and West Hartford Education Association July 1, 1988 to June 30, 1990” was available for submission in those hearings. The medical evidence she seeks to submit also all existed prior to those trial proceedings. There is no reason given why she did not submit them then.

We therefore affirm the January 7, 1993 Finding, Award and Dismissal and deny the appeal.

Commissioners George A. Waldron and Nancy A. Brouillet concur.

1 We note that paragraph two of the Commissioner’s factual findings indicate that on March 5, 1987 the claimant was employed as a teacher by the Town of West Hartford. This appears to be a typographical error and given that the trier later found the date of claimant’s accident at issue to be March 3, 1987 we believe that the pertinent date should have been March 3, 1987. We note that neither the claimant-appellant, who represents herself pro se on appeal, nor the respondent-appellee moved to correct this particular error. BACK TO TEXT

2 Our consideration of the “Claimant’s Reasons for Appeal” as appellant’s brief is probably rather generous but is consistent with our courts’ policy permitting pro se litigants to prosecute their claims unhindered by unnecessary and undue adherence to procedural technicalities. See e.g., Byars v. Whyco Chromium, 11 Conn. Workers’ Comp. Rev. Op. 39, 1257 CRD-5-91-7 (1993). BACK TO TEXT

3 General Statutes Sec. 31-294 (Rev. to 1981) provided:

No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury, provided, if death has resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease, a dependent or dependents, or the legal representative of the deceased employee, may make claim for compensation within such two-year period or within one year from the date of death, whichever is later. BACK TO TEXT

4 Administrative Regulation 31-301-9 provides:

If any party to an appeal shall allege that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, he shall by written motion request an opportunity to present such evidence or testimony to the compensation review division, indicating in such motion the nature of such evidence or testimony, the basis of the claim of materiality, and the reasons why it was not presented in the proceedings before the commissioner. The compensation review division may act on such motion with or without a hearing, and if justice so requires may order a certified copy of the evidence for the use of the employer, the employee or both, and such certified copy shall be made a part of the record on such appeal. BACK TO TEXT

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