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Ferrigno v. Buffalo Specialty Products, Inc.

CASE NO. 1953 CRB-2-94-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 14, 1995

SHERI FERRIGNO

CLAIMANT-APPELLANT

v.

BUFFALO SPECIALTY PRODUCTS, INC.

EMPLOYER

and

CNA INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Abbot B. Schwebel, Esq., Schwebel, Burke, Hall, Pigeon & Gnutti, P.C., 130 Union Street, P.O. BOX 757, Rockville, CT 06066-0757.

The respondents were represented by Michael J. McAuliffe, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

This Petition for Review from the January 3, 1994 Finding and Dismissal of the Commissioner acting for the Second District was heard December 16, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Nancy A. Brouillet and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review of the Second District Commissioner’s Finding and Dismissal of January 3, 1994. In that decision, the commissioner concluded that a physical assault upon the claimant occurred in the course of her employment but did not arise out of her employment, and thus was not compensable. Specifically, the trial commissioner concluded that the claimant’s tumultuous relationship with the assailant culminated in the assault, that the assault was brought into the claimant’s employment from her private life, and that the assault was not exacerbated by her employment.1

We will first address the respondents’ motions to dismiss which were filed on October 28, 1994 and February 1, 1994. The respondents seek a dismissal based upon the claimant’s failure to file her brief by October 17, 1994. We note that the claimant filed her brief on November 4, 1994, which provided the respondents with sufficient time to prepare for oral argument on December 16, 1994. The respondents further seek dismissal based upon the claimant’s late filing of her reasons of appeal and motion to correct. The claimant’s reasons of appeal were filed on January 24, 1994, only one day late. See Conn. Agencies Reg. §31-301-2. Moreover, the claimant’s motion to correct which was due on January 18, 1994, was filed on January 24, 1994. See Conn. Agencies Reg. §31-301-4. In the instant case, we do not find that the respondents were prejudiced by the claimant’s late filings. Accordingly, we will not dismiss the appeal. See Richardson v. H.B. Sanson, Inc., 6 Conn. Workers’ Comp. Rev. Op. 107, 590 CRD-1-87 (February 23, 1989).

In support of her appeal, the claimant contends that her job duty of locking the gate on the evening of the attack placed her in a “zone of danger” because it required her to leave the safety of her car. The claimant further contends that whether there is a personal relationship between the claimant and the assailant is immaterial where there is a criminal assault. We disagree, and affirm the trial commissioner.

The claimant cites Chavarriaga v. Pathmark, 5 Conn. Workers’ Comp. Rev. Op. 16, 363 CRD-7-84 (March 24, 1988) for the proposition that an assault may be compensable where the claimant is put in a “zone of danger” by virtue of the employer’s procedures, even where the attack is the result of a personal relationship. The claimant’s reliance upon Chavarriaga is misplaced. The Chavarriaga decision cites Fair v. People’s Savings Bank, 4 Conn. Workers’ Comp. Rev. Op. 71, 289 CRD-4-83 (May 21, 1987) which the Connecticut Supreme Court subsequently reversed in Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

The Connecticut Supreme Court addressed the issue of whether an assault upon an employee which occurs during the course of the employment is compensable under the Workers’ Compensation Act. The court quoted Larson’s Workmen’s Compensation Law, §11.21:

When the animosity or dispute that culminates in an assault is imported into the employment from claimant’s domestic or private life, and is not exacerbated by the employment, the assault does not arise out of the employment....
Fair v. People’s Savings Bank, 207 Conn. 535, 542 (1988).

The court also quoted 82 Am Jur. 2d §329, pp. 126-27:

(W)hen the assault is unconnected with the employment, or is for reasons personal to the assailant and the one assaulted, or is not because the relation of employer and employee exists, and the employment is not the cause, though it may be the occasion, of the wrongful act, and may give a convenient opportunity for its execution, it is ordinarily held that the injury does not arise out of the employment.” Fair, supra, p. 542. (Emphasis added.)

In addition, the court addressed the exception to the above rule where the employment facilitates an assault “which would not otherwise be made.” Fair, supra at p. 544, quoting Larson’s Workmens’ Compensation Law, §11.00.

In the instant case, the claimant urges this board to find that the claimant’s job duty of locking the gate of the employer’s premises on her way home from work was the proximate cause of the assault, which would not otherwise have occurred. However, the trial commissioner specifically found that the proximate cause of the assault was the claimant’s “tumultuous relationship” with the assailant. Although at the formal hearing the claimant and the assailant denied having an intimate relationship prior to the attack, two of the claimant’s coworkers testified that the claimant had confided that she had been having an intimate relationship with the assailant. The trial commissioner found the coworkers to be more credible than the claimant. We will not disturb the trial commissioner’s determination of the credibility of the witnesses and the weight to be accorded their testimony. See Busak v. Stamford, 12 Conn. Workers’ Comp. Rev. Op. 291, 1562 CRB-7-92-11 (June 8, 1994).

Whether the trier erred in finding that the claimant’s injury arose out of and in the course of her employment requires a factual determination which we will not disturb unless it is found without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). In the instant case, we find ample evidence in the record to support the trial commissioner’s determination that the assault upon the claimant was imported from her private life and was unconnected with her employment.

Accordingly, we affirm the decision of the trial commissioner.

Commissioner Michael S. Miles concurs.

NANCY A. BROUILLET, COMMISSIONER, DISSENTING. I dissent. I disagree with the majority’s interpretation of Fair v. People’s Savings Bank, 207 Conn. 535 (1988). Specifically, the Connecticut Supreme Court in the Fair decision did not abolish the “zone of danger” analysis which is set forth in Chavarriaga v. Pathmark, 5 Conn. Workers’ Comp. Rev. Op. 16, 363 CRD 7-84 (March 24, 1988). In Chavarriaga, this tribunal held that a claimant who was attacked in a parking garage incurred injuries which arose out of and in the course of his employment where the employer had placed him in a zone of danger by directing him to park in the garage. The assailant in that case was a stranger, who had no personal ties to the claimant. However, the reasoning in that decision is applicable to the case at hand. We stated:

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....
Chavarriaga, supra, at 18, quoting Stulginski v. Waterbury Rolling Mills, 124 Conn. 355, 362 (1938).

In Fair, supra, the court noted that Larson’s Workmen’s Compensation Law, §11.00 provides: “(a)ssaults for private reasons do not arise out of the employment unless, by facilitating an assault which would not otherwise be made, the employment becomes a contributing factor.” (Emphasis added).

In the instant case, the claimant was physically assaulted while locking the gate to her employer’s premises at approximately 5:30 P.M. on June 4, 1991. Apparently, she was the last employee at the employer’s facility, and was therefore responsible for locking the gate. In order to lock the gate on the employer’s premises, the claimant had to get out of her car. The trial commissioner found that the claimant’s intimate and personal relationship with the assailant was the proximate cause of the attack. However, the commissioner did not address the issue of whether the claimant was put into a zone of danger by her job duty which required her to leave the safety of her vehicle when she was the last employee on the premises. Moreover, the commissioner did not address the issue of whether the attack would have occurred in the absence of the positional risk caused by her employment duty of locking the gate.

In the instant case, the trial commissioner noted in his findings that the assailant was convicted of a felony for assaulting the claimant on June 4, 1991. Furthermore, the trial commissioner noted that the assailant had previously been an employee of the respondent employer. It is not clear whether the assailant, due to his prior employment with the employer, had special knowledge as to the employer’s policy which required the claimant, as the last employee present, to lock the gate. This is certainly a factor which should be considered in determining whether the employment environment created the opportunity for the attack to occur.

I would therefore remand this case to the commissioner for a determination of whether the claimant’s employment placed her in a zone of danger, and, if so, whether that zone of danger rather than the personal relationship with her assailant was the proximate cause of the attack.

1 The record indicates that the attack occurred on June 4, 1991, although the commissioner in some of his findings referred to the date of the attack as June 5, 1991. The references to the June 5, 1991 date appear to be an inadvertent and harmless error. BACK TO TEXT

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