CASE NO. 3386 CRB-3-96-7
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JANUARY 22, 1998
CHESEBROUGH PONDS, U.S.A.
SEDGWICK JAMES, INC.
The claimant was represented by William C. Kroll, Esq., 212-D New London Turnpike, Glastonbury, CT 06033, who did not appear at oral argument.
The employer and its insurer were represented by Kevin Blake, Esq., Cotter, Cotter & Sohon, P.O. Box 5660, Bayview Station, Bridgeport, CT 06610.
This Petition for Review from the July 22, 1996 Finding and Award of the Commissioner acting for the Third District was heard April 4, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.
JESSE M. FRANKL, CHAIRMAN. The respondent employer and its insurer (hereinafter “respondents”) have petitioned for review from the July 22, 1996 Finding and Award of the Commissioner acting for the Third District. In that decision the trial commissioner found that the claimant sustained a compensable injury to her knee on March 2, 1995 when a co-worker struck her knee with a hammer. The respondents argue on appeal, as they argued before the trial commissioner, that the incident constituted horseplay and is thus not compensable.
Whether an injury arose out of and in the course of the employment requires a factual determination. McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117 (1987). The power and duty of determining the facts rests on the trial commissioner as the trier of fact. We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). Regarding horseplay, the Connecticut Appellate court has stated:
‘[W]here an employee indulges in horseplay with his fellow employees during the hours of his employment with resulting injury to himself, his injuries cannot be deemed to have had any causal connection with his employment. In such case he has voluntarily departed from the duties of this employment and embarked upon an enterprise of his own not contemplated by the terms of his employment. His injuries result from his own act and from a condition brought about by himself and not incident to his employment. They have their origin in a risk which he has himself created and which has no causal connection with his employment.’
Simmons v. Bonhotel, 40 Conn. App. 278, 282-83, n. 3 (1996), citing Mascika v. Connecticut Tool & Engineering Co., 109 Conn. 473, 477 (1929).
In the instant case, the trial commissioner determined that the claimant’s injury was not the result of horseplay. Specifically, the trial commissioner found that the claimant was performing her job duties on a production line on March 2, 1995 when the injury occurred; that the claimant did not provoke the co-worker who hit her knee with the hammer; that the claimant had not “joked around” with this co-worker for a long period of time prior to this incident; that the claimant did not socialize with this co-worker nor had she ever been to his house; and that there were no arguments between the claimant and the co-worker which preceded the incident. (See Findings No. 16-28). The trial commissioner, as the trier of fact, was entitled “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 v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994)). In the instant case, the trial commissioner’s determinations are based upon the weight and credibility which she accorded the evidence and we will thus not disturb them.
The trial commissioner’s findings amply support the determination that the claimant’s injury was a compensable injury which was not the result of horseplay. As set forth in Simmons, supra, the horseplay doctrine is based upon the principle that an injury does not arise out of the employment where a claimant “voluntarily depart(s)” from his or her duties and the injury results from “a risk which he has himself created.” Simmons, supra. Here, the trial commissioner determined that the claimant did not depart from her duties nor did she provoke the incident with the co-worker. Accordingly, the incident did not constitute horseplay. See Simmons, supra; see also Lane v. J. Copperfield, Ltd., 11 Conn. Workers’ Comp. Rev. Op. 153, 154, 1293 CRD-2-91-8 (Aug. 23, 1993) (incident did not constitute horseplay where conduct was tolerated by employer and where claimant did not provoke, induce or ask the co-worker to initiate the act). Moreover, the findings of fact do not indicate that the incident was the result of a personal relationship which was imported into the employment from the claimant’s private life. See Fair, supra, at 542-43.
We find no error in the commissioner’s denial of the respondents’ Motion to Correct. A Motion to Correct may be denied where the legal conclusion of the commissioner would not be altered by the substituted findings. Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 152, 1608 CRB-1-92-12 (Feb. 6, 1995); Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994).
The trial commissioner’s decision is affirmed.
Commissioners James J. Metro and John A. Mastropietro concur.