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Noga v. Colin Service Systems, Inc.

CASE NO. 3361 CRB-06-96-06

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 1, 1998

JOZEF NOGA

CLAIMANT-APPELLANT

v.

COLIN SERVICE SYSTEMS, INC.

EMPLOYER

and

HOME INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Jacek Smigelski, Esq., 122 Main St., P. O. Box 875, New Britain, CT 06050-0875.

The respondents were represented by James L. Sullivan, Esq., and Maureen Driscoll, Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430-0550.

This Petition for Review from the May 30, 1996 Finding of Dismissal by the Commissioner acting for the Sixth District was heard November 21, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the May 30, 1996 Finding of Dismissal by the Commissioner acting for the Sixth District. He argues on appeal that the trier erred by failing to find that the employer Colin Service Systems, Inc. provided the claimant with transportation to work as part of the employment contract. We affirm the trial commissioner’s decision.1

The trier found that the claimant was employed by Colin Service Systems, Inc. (Colin), on March 4, 1995. Colin was the cleaning service for the Bradlees department store in Waterbury, and carried its own workers’ compensation insurance. The claimant was involved in a car accident en route from New Britain to his job in Waterbury on the date in question. He was a passenger in a car driven by another Colin employee. The car was not a company vehicle, and Colin did not pay for traveling expenses.

Jan Zadora, a project director for Colin, testified that he often assisted individuals from the Polish community in New Britain in organizing car pooling to work sites. He stated that Colin did not include transportation to work sites as part of their employment contracts. All three employees that were involved in the car accident were hourly employees, and their work days commenced when they signed in at the Bradlees job site. None of the passengers in the car were found to be Colin supervisors. The commissioner concluded that there was no evidence that the respondent employer provided the claimant with transportation to work, and dismissed the instant claim for benefits on the ground that the claimant was not in the course of his employment when he was injured. The claimant has appealed that decision.

Ordinarily, an injury is not compensable when it is sustained by an employee on a public highway while traveling to or from his place of employment. Morin v. Lemieux, 179 Conn. 501, 505 (1980). However, when an employer contracts to or does furnish transportation to and from work as a condition of employment, injuries suffered while using that transportation have been held compensable. Id.; Dombach v. Olkon Corp., 163 Conn. 216, 222 (1972); Greco v. Greco Auto Parts, 3402 CRB-4-96-8 (decided Feb. 4, 1998). Whether or not this condition has been met by any given set of circumstances is a question of fact for the trial commissioner, and must be accorded the same level of deference that we traditionally give to determinations of proximate cause. Rivera v. B&D Molded Products, 9 Conn. Workers’ Comp. Rev. Op. 76, 78, 912 CRD-4-89-9 (Feb. 20, 1991), citing Fair v. People’s Savings Bank, 207 Conn. 535, 541 (1988).

The claimant argues that he and a co-worker were regularly driven to work by their “de facto supervisor,” Grzegorz Pietrasik, as neither had his own transportation to work. According to the claimant, Jan Zadora arranged for Pietrasik to drive his co-workers to work, and occasionally drove them to Waterbury himself when Pietrasik was unavailable. This allegedly implies that the presence of these workers at Bradlees was essential to Colin’s fulfillment of its cleaning contract, and that the employer received a benefit from furnishing transportation to these men. Pietrasik was purportedly acting as a representative of the employer when he drove the claimant to work on March 4, 1995.

The claimant testified that he had known Zadora for several years before taking the job at Colin. He had been unemployed, and called up Zadora, who told him that he had a spot open. When the claimant told Zadora he didn’t have a car, Zadora replied that it wouldn’t be a problem, because he could provide the transportation. November 9, 1995 Transcript, p. 13. Zadora, who is a supervisor at Colin, said that he couldn’t remember whether or not the claimant had mentioned not having a car at the time he was hired. Transcript, p. 19. He stated that he could not tell any employee to give any other employee a ride in his capacity as a supervisor, but explained to the claimant and two other workers that there was “a possibility where they can work” if they worked together and one of them got a car so the group could ride to work. Id., 20. He specifically repeated that employees are responsible for getting to work themselves, and that Colin does not provide transportation for employees. Id., 22. He also explained that Pietrasik was in charge of the Bradlees job only in the sense that he was the person Zadora communicated with when he had something to tell the Waterbury crew. Id., 24.

Neither of these witnesses offered testimony that strongly supports a finding that the employer provided transportation to its workers, and there is no other evidence that is pertinent to that issue. It was well within the authority of the trial commissioner as the factfinder to infer from the testimony of the claimant and Jan Zadora that Colin Service Systems, Inc. did not provide the claimant with transportation. As the evidence supports the factual findings, we cannot disturb them on review. Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). The commissioner was thus entitled to dismiss the claimant’s claim, and we must affirm that decision.

Commissioners James J. Metro and John A. Mastropietro concur.

1 The respondents filed a Motion to Dismiss the claimant’s appeal on June 18, 1996, on the ground that it was filed a day late under § 31-301(a). We denied that motion in a decision dated September 16, 1997, as the tenth day following the date of the commissioner’s decision was a Sunday. See Practice Book § 4010. BACK TO TEXT

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