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Durso v. Colonial Toyota, Inc.

CASE NO. 2141 CRB-3-94-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 6, 1995

CARMEN DURSO

CLAIMANT-APPELLEE

v.

COLONIAL TOYOTA, INC.

EMPLOYER

and

TRANSAMERICA INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by John Shannon, Esq., Jacobs, Jacobs & Shannon, 265 Orange St., New Haven, CT 06510.

The respondents were represented by Brian E. Prindle, Esq., 627 Main St., Manchester, CT 06040.

This Petition for Review from the August 25, 1994 Finding and Award of the Commissioner acting for the Third District was heard May 19, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. Tracy and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the August 25, 1994 Finding and Award of the Commissioner acting for the Third District. They argue on appeal that the trial commissioner erroneously determined that the claimant’s injury arose out of and in the course of his employment with Colonial Toyota. We affirm the trial commissioner’s decision.

The respondent Colonial Toyota sponsored a flag football team called the Colonial Toyota Fourrunners, which competed in a league run by the Town of Milford. The claimant, an employee of Colonial Toyota, played on that team. During a Saturday evening practice on September 20, 1991, the claimant sustained a serious musculature strain in his right leg that required surgery. The question before the trial commissioner at the formal hearing was whether this injury was compensable.1

A compensable injury is one that arises out of and in the course of an employee’s employment. Section 31-284 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). Whether or not an injury meets these criteria is a factual question for the trial commissioner. Tovish, supra, 605; Spatafore v. Yale University, 2011 CRB-3-94-4 (decided Sept. 14, 1995).

Our Supreme Court noted in McNamara v. Hamden, 176 Conn. 547, 552-53 (1979), that an injury suffered during recreational activity off an employer’s premises would initially seem to be disassociated with the employment. Thus, a claimant would have to show that the employer derived a benefit from the activity before compensation could be awarded. Id.; Cellupica v. Highland Manufacturing, 9 Conn. Workers’ Comp. Rev. Op. 206, 207, 969 CRD-5-90-1 (Sept. 3, 1991). In Cellupica, the trial commissioner found that the employer received the benefit of good publicity from the company softball team, considered itself the team sponsor, encouraged employee participation, and paid the team’s industrial league entry fee. This board affirmed the trial commissioner’s decision that the claimant’s off-premises softball injury was compensable.

Here, the trial commissioner found that Colonial Toyota sponsored the flag football team, paid the $590 league entry fee, purchased the team jerseys, belts, flags, and a football. The name “Colonial Toyota Fourrunners” was printed on the jerseys; the team had been named by Robert Crabtree, Jr., the manager of Colonial Toyota. “Fourrunner” is also the name of a vehicle sold by Toyota. Crabtree had encouraged the formation of the team, which only had one non-employee as a member. Although employees were not required to play on the team, the claimant had been allowed to use company time to enter the team in the Milford league, and some employees were allowed to leave work early for football practice. In fact, the claimant testified that Colonial Toyota closed early on the night he was injured in order to allow employees to get to football practice by 6:00 p.m.

From these facts, the commissioner concluded that Colonial Toyota derived a benefit from its sponsorship of the team by promoting work participation and advertising for their product. This decision would appear to be entirely consistent with the decision in Cellupica. The respondents argument that Gordon v. United Aircraft Corp., 24 Conn. Sup. 262 (1962), affirmed, 150 Conn. 328 (1963), requires a different result is misplaced. There, the trial commissioner had specifically found that a basketball team was of no value to the employer as an advertising asset or as a morale builder, and that the defendant exercised no control over the athletic teams maintained by the Pratt and Whitney Aircraft Club, a separate entity from United Aircraft Corp.

In contrast to Pratt & Whitney’s manufacturing million-dollar jet engines, however, Colonial Toyota sells automobiles to everyday consumers. Also, Colonial Toyota paid the flag football team’s league entry fee itself. Under the facts found by the commissioner, it was reasonable for him to conclude that there was an advertising benefit and a morale boost gained by Colonial Toyota’s sponsorship of the flag football team. Evidence apart from the claimant’s testimony detailing Crabtree’s involvement in the team was not legally required to reach that conclusion. If evidence existed that would tend to disprove the claimant’s version of the facts, the respondents should have introduced it at the formal hearing.

The trial commissioner’s decision is affirmed.

Commissioner Amado J. Vargas concurs.

ROBERTA S. TRACY, COMMISSIONER, Dissenting. I would reverse the trial commissioner’s decision. There was no concrete evidence of a benefit to the employer from the flag football team’s activities, even taking into account the claimant’s testimony. I would not place the burden of an injury suffered during a recreational activity on an employer without more proof of its involvement. I simply do not believe that the flag football team arises out of or in the course of employment; nor is the participation in the recreation doing something incidental to employment. Thus, I dissent from the majority opinion.

1 We note that the 1993 amendment to the definition of “personal injury” in § 31-275(16)(B)(i) C.G.S. excluding injuries to employees resulting from their voluntary participation in recreational activities does not apply to this case, as the claimant’s 1991 injury predates its passage. BACK TO TEXT

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