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Vallier v. Distinctive Stationery, Inc.

CASE NO. 3176 CRB-6-95-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 16, 1997

DOUGLAS VALLIER

CLAIMANT-APPELLEE

v.

DISTINCTIVE STATIONERY, INC.

EMPLOYER

NO RECORD OF INSURANCE

RESPONDENT-APPELLANT

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Diane R. Chace, Esq., 24 Cedar St., P.O. Box 1568, New Britain, CT 06050.

The employer was represented by David L. Griffith, Esq., Naussau, Borowy & Griffith, 66 Cedar St., Newington, CT 06111.

The Fund was represented by Nancy Sussman, Esq., Assistant Attorney General, 55 Elm St., P.O. Box 120, Hartford, CT 06141-0120, who did not file a brief or appear at oral argument.

This Petition for Review from the September 22, 1995 Finding and Award of the Commissioner acting for the Sixth District was heard May 24, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Robin L. Wilson and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The employer has petitioned for review from the September 22, 1995 Finding and Award of the Commissioner acting for the Sixth District. In that decision, the trial commissioner concluded that the claimant’s injury, which occurred while he was shoveling snow, arose out of and in the course of his employment. In support of its appeal, the employer contends that the injury did not arise out of and in the course of the claimant’s employment because the employer had neither “assented to or directed” the claimant to shovel the snow, and thus it was not incidental to his job duties.

The trial commissioner found the following relevant facts. On February 6, 1995 the claimant was employed by Distinctive Stationery, Inc. The claimant’s supervisor was David Hershman, who was the president of Distinctive Stationery. Hershman was also an owner of Pike Properties which owned the commercial building where Distinctive Stationery and several other stores were located. The claimant’s job duties included general maintenance work. On Monday, February 6, 1995, the claimant arrived in the morning and advised Hershman over the telephone that there was snow and ice from a weekend snow storm which had not been shoveled on the stairs of Distinctive Stationery and on some of the other businesses in the building. Hershman told the claimant to purchase bags of rock salt. The claimant delivered a fifty pound bag of rock salt to the Car Phone Store, which was located in the commercial building owned by Hershman. The claimant shoveled the sidewalk in front of Distinctive Stationery and put down rock salt, and then the claimant shoveled the snow in front of the Car Phone Store. While shoveling the snow in front of the Car Phone Store, the claimant injured his back.

Whether the trier erred in finding that the claimant’s injury arose out of and in the course of his 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, 540 (1988). This board has recently stated the following:

It is well settled that “[i]n 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); Bell v. U. S. Home Care Certified of Connecticut, 1792 CRB-1-93-8 (decided April 21, 1995). The question of whether an injury meets these criteria is factual in nature and is committed to the trial commissioner’s discretion. Tovish, supra, 605.

Kaplan v. State of Connecticut/Department of Health Services, 14 Conn. Workers’ Comp. Rev. Op. 296, 297-298, 2012 CRB-1-94-4 (Sept. 11, 1995).

Moreover, § 31-275(1) defines “arising out of and in the course of his employment” to mean “an accidental injury happening to an employee or an occupational disease of an employee originating while he has been engaged in the line of his duty in the business or affairs of an employer upon the employer’s premises, or while engaged elsewhere upon the employer’s business or affairs by the direction, express or implied, of the employer . . . .” Sec. 31-275(1) (emphasis added).

In the instant case, the trial commissioner’s determination that the claimant’s act of shoveling snow in front of the Car Phone Store was incidental to his employment is fully supported by the record. Specifically, the trial commissioner found that Hershman, the claimant’s supervisor who also owned the commercial building where the Car Phone Store was located, directed the claimant to shovel the snow in front of that store. (Finding H; Transcript of 9/18/95 at p. 13-14). Although Hershman testified that he did not instruct the claimant to shovel, the trial commissioner’s fact-finding authority entitled the commissioner “to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995) (citing Tovish, supra, at 599).

The trial commissioner’s decision is affirmed.

Commissioner Robin L. Wilson and Michael S. Miles concur.

Workers’ Compensation Commission

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