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Dennis-Hoyle v. Omni Home Health Services, Inc.

CASE NO. 2003 CRB-3-94-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 14, 1995

EULA DENNIS-HOYLE

CLAIMANT-APPELLANT

v.

OMNI HOME HEALTH SERVICES, INC.

EMPLOYER

and

CONNECTICUT HOSPITAL ASSOC. WORKERS’ COMPENSATION TRUST

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Carl A. Secola, Jr., Esq., Kinney, Sullivan & Secola , 685 State St., P.O. Box 1814, New Haven, CT 06508.

The respondents were represented by Neil A. Ambrose, Esq., Byrne & Letizia, Woodbridge Corporate Park, 1764 Litchfield Tpke., Suite 106, Woodbridge, CT 06525.

This Petition for Review from the March 24, 1994 Finding and Dismissal of the Commissioner acting for the Third District was heard January 27, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith D’Oyen and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the March 24, 1994 Finding and Dismissal of the Commissioner for the Third District. In that decision, the commissioner concluded that the claimant’s injury did not arise out of and in the course of her employment as a visiting nurse’s aide.

The commissioner found that the claimant’s injury occurred on July 30, 1992 at 8:15 A.M. while the claimant was driving from her residence to visit her first patient scheduled for that day. The commissioner further found that the claimant had not yet commenced working, but was merely on her way to her first appointment, when the accident occurred. In support of her appeal, the claimant contends that the accident arose out of and in the course of her employment because her employment required her to travel on the highways. Furthermore, the claimant contends that traveling to the patient’s home constituted an act incidental to her employment which was done for the joint benefit of her and the employer, with the consent of the employer. We affirm the trial commissioner.

Ordinarily, an injury sustained on a public highway while going to or from work is not compensable. Dombach v. Olkon Corporation, 163 Conn. 216, 222 (1972); 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 because the route traveled by the employee is usually within his discretion, unfettered by any control on the part of the employer. Dombach, supra; see also McKiernan v. New Haven, 151 Conn. 496, 498-99 (1964). In Irving v. Hoyland, 4 Conn. Workers’ Comp. Rev. Op. 25, 249 CRD-7-83 (March 4, 1987), this board held that where a visiting nurse’s aide was injured while traveling to her home after visiting her last patient, the injury did not arise out of and during the course of her employment.

In the claimant’s appeal, she argues that there was no public transportation available to the patient’s house. In Irving, supra, this board responded to the same argument by stating that “(a)lthough we agree that transportation was important in the sense that you can not do a job unless you can get back and forth from the job site, that is true of all employment....” We note that in the claimant’s brief, she references being reimbursed for the mileage accrued between patient’s homes. The claimant was not reimbursed for traveling to the first patient of the day, however. (Finding of Fact No. 22, and TR at p. 56).

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, the commissioner’s conclusion that the claimant’s injury did not arise out of and in the course of her employment is amply supported by the record.

Accordingly, the trial commissioner’s decision is affirmed.

Commissioners Roberta Smith D’Oyen and Amado J. Vargas concur.

Workers’ Compensation Commission

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