State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Fantasia v. Tony Pantano Mason Contractors

CASE NO. 1819 CRB-5-93-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 4, 1995

RICHARD FANTASIA

CLAIMANT-APPELLEE

v.

TONY PANTANO MASON CONTRACTORS

EMPLOYER

and

AMERICAN STATES INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Charles J. Goddard, Esq., Moynahan, Ruskin, Mascolo, Minnella & Crozier, 141 East Main St., P. O. Box 2242, Waterbury, CT 06722-2242.

The respondents were represented by David W. Schoolcraft, Esq., Trowbridge, Schoolcraft & Basine, P.C., 207 Main St., Hartford, CT 06106-5314.

This Petition for Review from the August 9, 1993 Finding and Award of the Commissioner acting for the Fifth District was heard November 18, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the August 9, 1993 Finding and Award of the Commissioner for the Fifth District. They argue on appeal that the commissioner improperly found compensable injuries arising out of an automobile accident that occurred while the claimant was returning home from a workers’ compensation hearing. We reverse the commissioner’s decision.

The claimant was injured on May 21, 1991 while working for the respondent employer as a mason’s helper. The respondent accepted as compensable an injury to the claimant’s left nonmaster hand. The commissioner found that the claimant also injured his left elbow and shoulder on that date. He was released for light duty on June 27, 1991. The commissioner found that the claimant had searched for jobs within his restrictions, and awarded him temporary partial disability benefits through September 30, 1991. This portion of the commissioner’s award is not in dispute.

An informal hearing was scheduled at the Second District office in Norwich at 1:45 p.m. on September 30, 1991 to discuss the continuation of the claimant’s temporary partial disability benefits and the authorization of a change in the claimant’s treating physician. The claimant did not show up until 3:15 p.m., by which time the respondent’s representative had been excused. After a brief discussion with the commissioner, the claimant left to return to his home in Torrington. On that return trip, the claimant was involved in a car accident in Middletown that left him with pulmonary contusions, a pelvic fracture, and multiple left rib fractures, among other injuries. He also complained of and was treated for left arm and shoulder pain. As a result of the accident, the claimant was hospitalized for 17 days.

The commissioner found that the claimant was totally disabled as a result of the May 21, 1991 compensable injury from May 12, 1992 to September 7, 1992, which period of disability was not made attributable to the automobile accident. According to the surgeon who operated on the claimant’s left wrist on May 22, 1992, the automobile accident did not contribute to the claimant’s wrist injury. The commissioner cited this testimony in his findings. However, the commissioner went on to find that the motor vehicle accident was “an event occurring in a chain of happenings flowing directly from the compensable injury without an intervening causative activity by the Claimant,” thereby constituting a compensable injury. He found that the May 21, 1991 shoulder injury was aggravated by the September 30, 1991 motor vehicle accident, and listed both occurrences as causes of the claimant’s temporary partial and total disability from September 28, 1992 to the date of the formal hearing. He also ordered the respondents to pay temporary total disability benefits for the 17-day period following the automobile accident. The respondents have appealed from this decision.

The respondents challenge the conclusion that the claimant’s automobile accident of September 30, 1991 arose out of and in the course of his employment pursuant to § 31-275(1) C.G.S. “In order to come within the course of the employment, an injury must occur (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). “An injury is said to arise out of the employment when (a) it occurs in the course of the employment and (b) is the result of a risk involved in the employment or incident to it or the conditions under which it is required to be performed.” Tovish v. Gerber Electronics, 32 Conn. App. 595, 607 (1993), affirmed, 229 Conn. 587 (1994), quoting Dombach v. Olkon Corporation, 163 Conn. 216, 221-22 (1972).

Ordinarily, an injury sustained on a public highway while going to or from work is not compensable. Dombach, supra, 222; Rivera v. B & D Molded Products, 9 Conn. Workers’ Comp. Rev. Op. 76, 77, 912 CRD-4-89-9 (Feb. 20, 1991). This is because employment normally does not commence until a claimant reaches the employer’s premises, and the route traveled by the employee is usually within his discretion. Dombach, supra; see also McKiernan v. New Haven, 151 Conn. 496, 498-99 (1964). Of the four exceptions to that rule recognized by Connecticut case law, the only one possibly applicable to this case is the circumstance where an employee is injured “while using the highway in doing something incidental to his regular employment, for the joint benefit of himself and his employer, with the knowledge and approval of the employer.” Id.

In this case, of course, the claimant was returning from a workers’ compensation hearing, not his regular employment. Assuming for the purpose of this case that the reasoning in Cole v. Norwalk Wilbert Vault Co., 4 Conn. Workers’ Comp. Rev. Op. 155, 330 CRD-2-84 (Feb. 26, 1988) would apply to an injury suffered at a workers’ compensation hearing, thereby making such an injury compensable, we are still faced with a situation where an exception to the “coming and going” rule would have to be applied in order to find that the claimant’s automobile accident arose out of and in the course of his employment. There was simply no evidence presented that the claimant’s ride to and from the hearing, separate from the hearing itself, was made for the employer’s benefit and with its knowledge and approval so as to invoke the above-cited exception.

Unlike the decedent in Ballester v. K & D Auto Body, Inc., 5 Conn. Workers’ Comp. Rev. Op. 35, 578 CRD-3-86 (April 6, 1988), the claimant was not making a special, employment-related trip that deviated from his normal duty to drive to and from work every day. Rather, this case is similar to McKiernan v. New Haven, supra, 500, in that the claimant’s trip home from the workers’ compensation hearing was no different than an ordinary trip home from work, during which an injury suffered by a claimant would be noncompensable. The fact that the claimant was seeking to enforce his rights as an injured worker under the Workers’ Compensation Act by attending the workers’ compensation hearing on the date of his injury does not somehow alter the character of the claimant’s ride to and from that hearing.

We note also that other courts have been reluctant to extend coverage to injuries sustained by a claimant while pursuing a workers’ compensation claim against his or her employer, much less on the trip home from the hearing. See Hendrickson v. George Madsen Construction, 281 N.W.2d 672, 674-75 (1979) (heart attack suffered after testifying at workers’ compensation hearing not compensable); Schander v. Northern States Power Co., 320 N.W.2d 84, 85 (1982) (Workers’ Compensation Act did not cover injuries sustained in claimant’s automobile accident en route home from retraining course); Douglas v. Spartan Mills, 140 S.E.2d 173, 175-76 (1965) (accident caused by defective steering apparatus while claimant was driving from work to workers’ compensation hearing held not compensable). We likewise decline the claimant’s invitation to construe our Workers’ Compensation Act as including an injury suffered while driving home from a workers’ compensation hearing.

The portion of the commissioner’s award attributable in any part to the disability caused by the claimant’s September 30, 1991 automobile accident is vacated. The awards of compensation benefits for dates prior to September 30, 1991 and for total disability between May 12, 1992 and September 7, 1992 remain intact, as those awards were not predicated in any way on the injuries sustained in the automobile accident. On remand, the commissioner must determine the cause of the claimant’s disability with regard to his shoulder injury in accordance with Mund v. Farmers’ Cooperative, Inc., 139 Conn. 338 (1952), and Ricigliano v. American Freight Systems, 5 Conn. Workers’ Comp. Rev. Op. 121, 122, 556 CRD-3-87 (June 24, 1988), and determine the claimant’s entitlement to further benefits accordingly.

The trial commissioner’s decision is reversed, and the case is remanded to the Fifth District for further proceedings consistent with this opinion.

Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.

Workers’ Compensation Commission

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