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Kolomiets v. Syncor International Corp.

CASE NO. 3251 CRB-7-96-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 23, 1997

GREGORY KOLOMIETS

CLAIMANT-APPELLEE

v.

SYNCOR INTERNATIONAL CORP.

EMPLOYER

and

CNA INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Brendan Canty, Esq., 10 Byington Place, Norwalk, CT 06850.

The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

This Petition for Review from the January 5, 1996 Finding and Award of the Commissioner acting for the Seventh District was heard November 1, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the January 5, 1996 Finding and Award of the Commissioner acting for the Seventh District. They argue on appeal that the commissioner erred by finding that the claimant’s injury arose out of and in the course of his employment. We agree that such a conclusion was improper, and reverse the trial commissioner’s decision.

The claimant, a Stamford resident, was employed by Syncor International Corp. as a driver on February 10, 1993. Syncor distributes diagnostic pharmaceuticals to hospitals and physicians, and holds a radioactive materials license that is granted by the Nuclear Regulatory Commission, a federal agency. One of the license conditions is that Syncor maintain a drivers’ manual prescribing clear written directions to its drivers concerning the manner in which deliveries are to be made. Syncor’s manual describes recommended and preferred routes that drivers should use en route to various facilities, although a driver may modify those routes to account for traveling conditions.

On the day in question, the claimant had been employed by Syncor for about a month. He had just completed a delivery of products to a hospital in Bronxville, New York, when he discovered that he had left his driver’s license at home.1 He drove the company car he had used to make the delivery back to Stamford on I-95, passing Exit 6, the best route to Syncor’s office. The claimant got off the limited-access highway on Exit 7, and traveled north up Washington Boulevard in order to return to his home to pick up his driver’s license. He was still in the course of his work shift at the time. At the intersection of Washington Boulevard and North Street, the claimant’s vehicle struck a school bus. The next day, Syncor terminated his employment on the ground that he had been involved in a preventable accident.

The commissioner found that the claimant believed that he might be assigned to deliver other products that day, and was attempting to retrieve his driver’s license in the event of that possibility. While in the process of driving home to get his license, the claimant had an accident. The commissioner surmised that retrieval of his license was in the best interest of both the claimant and Syncor, and that the route the claimant took to do so was reasonable, if not ideal. He concluded that the claimant’s deviation from his job duties was not so unreasonable as to preclude him from collecting workers’ compensation benefits. The respondents appealed that decision, along with the denial of certain paragraphs in their Motion to Correct.

We initially observe that the corrections that the commissioner denied were either recitals of testimony (paragraphs 6, 9, 10, 13, 14, 16), cumulative and immaterial facts (paragraphs 2 and 7), suggested inferences from the evidence regarding which the commissioner permissibly drew contrary inferences (paragraphs 15, 17, 18, 19, and 20), or conclusions of law dependent on those changes (paragraph 21 and 22). The trier was not required to grant any of those corrections, and there was no error in the partial denial of the respondents’ Motion to Correct. See Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995).

However, it is the opinion of this board that there is merit in the respondents’ contention that the commissioner misapplied the law to his factual findings. A claimant must show that the injury arose out of and in the course of his employment to establish the necessary causal connection under the Workers’ Compensation Act. Section 31-284 C.G.S.; Spatafore v. Yale University, 239 Conn. 408, 417 (1996). “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.” Id., 418; McNamara v. Hamden, 176 Conn. 547, 550-51 (1979). Under the facts found by the trial commissioner, we do not believe that the claimant was acting in the course of his employment when he became involved in his automobile accident.

Normally, 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). Excepted from this rule are cases where an employee is on call, cases where the employee’s work requires him to travel, and cases where he is injured while using a public highway in doing something incidental to his employment for the benefit of both himself and his employer, with his employer’s knowledge and approval. Id., 222. Although the commissioner found that the claimant carried a beeper provided by his employer, there is no indication that he was subject to emergency calls when he was off-duty. Thus, the “on-call” exception does not apply.

As a driver, the claimant was clearly required to travel as part of his job. However, the trip he was making when he was injured was not part of a delivery assignment, but was instead a side trip to pick up his driver’s license. The commissioner found that Syncor closely monitored the routes its drivers took when making and returning from deliveries because of the NRC licensing requirements. Even taking into account driver discretion to accommodate traffic and road conditions, the claimant was no longer following an authorized route when he drove by his employer’s office on his way home to pick up his license. Thus, when he got into his car accident, he was not traveling pursuant to his express employment duties, whether or not his recovery of his driver’s license was of some benefit to his employer.

The last exception applies when an employee is injured while using a highway in doing something incidental to his job, but for the joint benefit of both him and his employer, and with his employer’s approval and knowledge. Although the commissioner found that the claimant, in picking up his driver’s license, was engaging in conduct mutually beneficial to both parties, it is undisputed that the employer did not sanction this conduct beforehand. In fact, Syncor dismissed the claimant from his employment the next day for getting into a “preventable accident.” The claimant states in his brief that, had there been no accident, the claimant would still have been verbally counseled about proper procedures had his deviation become known. Whether or not the trip home by itself would have gotten the claimant fired, it was certainly not consented to by the employer either before or after the fact. Thus, this exception to the “coming and going” rule cannot apply either.

Unlike our recent decision in Kish v. Nursing and Home Care, 16 Conn. Workers’ Comp. Rev. Op. 83, 3068 CRB-2-95-6 (Nov. 12, 1996), this case cannot be ruled compensable. In Kish, the claimant may have overstepped her employer’s rules in running an errand for her patient, but she was still engaged in a journey that was made to provide better nursing care on her employer’s behalf. Here, the claimant had finished delivering the hospital supplies, and was engaged in a completely separate side trip home when he was injured. Although the distinction may seem somewhat small, it is legally significant, because none of the exceptions to the “coming and going” rule recited in Dombach precisely fit the circumstances of this case. Therefore, we reverse the trial commissioner’s decision, and dismiss the claim.

Commissioner George A. Waldron concurs.

ROBIN L. WILSON, COMMISSIONER, DISSENTING. This case is no different than Kish. The trial commissioner expressly found that the claimant’s deviation from his employment was minor, and that he was engaged in conduct beneficial to both him and his employer in picking up his driver’s license in order to enable him to make further deliveries. These are legitimate questions of fact, and are matters for the trial commissioner to decide, not this board. Kish, supra, citing Robinson v. The State, 93 Conn. 49 (1918). The Dombach court stated that “the critical question is whether the plaintiff’s use of the highways on the night in question could be considered as a benefit to the employer. . . . if the work of the employee creates the necessity for travel he is in the course of his employment, though he is serving at the same time some purpose of his own.” Dombach, supra, 223-24 (internal quotations omitted). The commissioner properly found that the claimant was driving home to pick up his driver’s license because he needed it to continue his workday. This case clearly falls within the same exception to the “coming and going” rule that we relied on in Kish, and the trial commissioner’s decision should not be reversed. I therefore dissent.

1 Section 14-213 C.G.S. requires that “each operator of a motor vehicle shall carry his operator’s license while operating such vehicle. Failure to carry such operator’s license as required by the provisions of this section shall be an infraction.” (Claimant’s Exhibit B). BACK TO TEXT

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