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Gerke v. F.A. Bartlett Tree Expert Co.

CASE NO. 3426 CRB-5-96-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 27, 1998

BURTON L. GERKE, III

CLAIMANT-APPELLANT

v.

F.A. BARTLETT TREE EXPERT CO.

EMPLOYER

and

KEMPER INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Richard D. Arconti, Esq., Pinney, Payne, VanLenten, Burrell, Wolfe & Dillman, P.C., Lee Farm Corporate Park, 83 Wooster Heights, P.O. Box 3499, Danbury, CT 06813-3499.

The employer was represented by Tracey Cleary, Esq., Law Offices of Michael Brodinsky, 127 Washington Avenue, P.O. Box 35, North Haven, CT 06473.

This Petition for Review from the September 6, 1996 Finding and Dismissal of the Commissioner acting for the Fifth District was heard May 9, 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 September 6, 1996 Finding and Dismissal of the Commissioner acting for the Fifth District. In that decision, the trial commissioner concluded that the claimant’s injury which occurred on September 25, 1994 did not arise out of and in the course of his employment. Specifically, the trial commissioner found that the claimant fell while attempting to rappel or slide down a rock ledge at a park which was not owned by the employer, on a day that the claimant was not scheduled to work. In support of his appeal, the claimant contends that the injury arose out of and in the course of his employment because the claimant alleges that he was in the process of learning how to climb trees, which was encouraged by the employer and constituted a benefit to the employer. We affirm the trial commissioner.

The trial commissioner found the following relevant facts. The claimant commenced employment with the respondent employer as a seasonal spray assistant on August 30, 1994. The claimant’s primary duties included preparation, spraying, and tree maintenance, which duties were performed at ground level. The claimant was encouraged by the employer to learn other jobs, including learning to climb trees. The claimant expressed an interest in learning how to climb trees, and climbed on at least two occasions at job sites under the supervision of employees of the respondent employer. The claimant’s supervisor, Joe Migoen, gave the claimant a thirty foot rope to practice climbing small trees. At the claimant’s request, the claimant purchased a tree climbing harness from the employer through a payroll deduction plan.

In September of 1994, the employer provided a training program for selected climber trainees, which did not include the claimant. Patrick Flynn, then in charge of safety and training, testified that in order to become a competent climber, approximately two thousand hours of supervised climbing is necessary. Flynn further testified that the rope and harness used in tree climbing are not compatible for rock climbing. Prior to September 25, 1994, the claimant borrowed a rope off of a truck at a job site, with permission from a co-employee. The claimant went to a park on Sunday, September 25, 1994, with two friends who were not employed by the respondent employer. (Finding No. 21). The claimant was not scheduled to work on that day. (Finding C). The claimant brought his harness and borrowed rope, and wrapped the rope around a tree at the top of a ninety foot rock ledge with the intention of rappelling or sliding down. The claimant went down approximately ten feet before falling approximately seventy feet.

In order to be compensable, an injury must both arise out of the employment and occur in the course of the employment. McNamara v. Hamden, 176 Conn. 547, 550 (1979). Whether a 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. Spatafore v. Yale University, 239 Conn. 408, 418-19 (1996); Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

Our Supreme Court has held that in order to establish that an injury has occurred in the course of his employment, a claimant has the burden of proving that the accident took place: “(a) within the period of the employment; (b) at a place [he] may reasonably [have been]; and (c) while [he was] reasonably fulfilling the duties of the employment or doing something incidental to it.” Mazzone v. Connecticut Transit Co., 240 Conn. 788, 793 (1997) (citations omitted). “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 to 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), citing Dombach v. Olkon Corporation, 163 Conn. 216, 221-22 (1972); see also Bell v. U. S. Home Care Certified of Connecticut, 13 Conn. Workers’ Comp. Rev. Op. 294, 1792 CRB-1-93-8 (April 21, 1995),affirmed, 40 Conn. App. 934 (1996)(per curiam).

In the instant case, the trial commissioner found that the claimant was not within the period of his employment when he was injured on September 25, 1994. Specifically, the claimant was at a park on Sunday, September 25, 1994, with two friends who were not employed by the respondent employer. The claimant was not scheduled to work on that day. (Finding C). The trial commissioner further found that the premises where the injury occurred were not under the control of the employer, and that the claimant was not at a place where he may reasonably have been expected to be.

In support of his appeal, the claimant contends that the trial commissioner “acknowledged” that the claimant’s “actions were undertaken with the knowledge and consent of his employer.” (Claimant’s Brief at p. 3). To the contrary, the trial commissioner did not find that the claimant’s act of rappelling down a ninety foot rock ledge on September 25, 1994 was done with the knowledge or the consent of the respondent employer. (See Finding D). Moreover, as the accident did not occur within the course of his employment, we need not reach the next issue of whether the injury arose out of the employment.

In further support of his appeal, the claimant contends that the trial commissioner erred in denying his motion to correct. Specifically, the claimant contends that there was undisputed testimony that the employer encouraged the claimant to practice climbing trees on his own time and that this would benefit the employer. A motion to correct need not be granted where the ultimate conclusion of the commissioner would not be altered by the substituted findings. Simmons v. Bonhotel, 40 Conn. App. 278, 287 (1996). We find no error in the trial commissioner’s denial of the motion to correct.

The trial commissioner’s decision is affirmed.

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

Workers’ Compensation Commission

Page last revised: June 29, 2005

Page URL: http://wcc.state.ct.us/crb/1998/3426crb.htm

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