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Ferri v. Double A Transportation, Inc.

CASE NO. 3503 CRB-08-96-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 29, 1998

SANDRA L. FERRI

CLAIMANT-APPELLEE

v.

DOUBLE A TRANSPORTATION, INC.

EMPLOYER

and

HARTFORD ITT INSURANCE GROUP

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Paul A. Morello, Jr., Esq., and David Dwyer, Esq., Donovan & Morello, 154 West St., Bldg. 3, P. O. Box 206, Cromwell, CT 06416.

The respondents were represented by Joseph Skelly Jr., Esq., Edward M. Henfey & Associates, 55 Farmington Ave., Suite 500, Hartford, CT 06105.

This Petition for Review from the November 27, 1996 Finding and Award of the Commissioner acting for the Eighth District was heard August 15, 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 respondents have petitioned for review from the November 27, 1996 Finding and Award of the Commissioner acting for the Eighth District. They argue on appeal that the commissioner erred by finding that the claimant’s injury arose out of and in the course of her employment. We affirm the trial commissioner’s decision.

The claimant was employed by the respondent Double A Transportation, Inc., as a van driver on February 23, 1995. She had been scheduled to make three van runs that day. When her first run ended sometime between 9:00 and 9:30 a.m., she asked her dispatcher if she could take the van home because her personal vehicle was being repaired. He agreed, and she drove the van to her home in Wallingford. The second run was scheduled to begin at 11:30 a.m. at a school in Meriden. Normally, the claimant would leave the bus yard (also in Meriden) at 11:15 in order to be at the school on time. On that day, however, she was driving directly from her home to the school, taking the most direct route. While traveling on route 68, she was involved in a car accident at 11:26 a.m., and injured her back, neck, and right knee.

The trial commissioner found that, although personal use of company vehicles was technically forbidden by the employee manual, a representative of the employer testified that its drivers were allowed to use the vehicles to travel to their homes. The employer admitted that drivers were usually allowed to take vehicles home between their second and third daily runs provided there was written authorization. The claimant had written permission to take a vehicle home Monday through Friday between 1:00 and 1:15 p.m. When an employee was using a company vehicle in between pickup runs, she would normally drive directly to her destination without first stopping by the employer’s place of business.

The trial commissioner concluded that the claimant had been given permission to use the vehicle at the time of the accident, and that the respondent had failed to establish that all employees were required to start work from the employer’s place of business or a school yard. Although the claimant had been provided with an employee handbook, the employer had failed to adhere to its policy of not allowing personal use of its vehicles. Thus, the “no-use” policy in the handbook was not binding here. The trier ordered the respondents to pay certain enumerated medical bills, and total disability compensation from March 1, 1995 to April 1, 1995. The respondents have appealed that decision.

We have often stated that the power and duty of making factual findings in a workers’ compensation case resides with the trial commissioner. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). He is the sole arbiter of all issues concerning the weight of the evidence presented, including the credibility of the testimony offered by the witnesses who appear before him. Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995). On review, this board does not retry the facts of the case. Id., 71. We will not disturb the commissioner’s findings unless they are without support in the record, or unless they omit undisputed material facts. Id.; Adzima, supra, 118. We will not disturb the conclusions drawn from those findings unless they result from an incorrect application of the law to the subordinate facts, or are based on an inference unreasonably or illegally drawn from them. Mazzone v. Connecticut Transit Co., 240 Conn. 788, 792 (1997); Webb, supra.

In order to establish the compensability of her injury, the claimant had to establish that it arose out of and in the course of her employment. Mazzone, supra; Spatafore v. Yale University, 239 Conn. 408, 417 (1996). An injury sustained on a public highway while going to or from work is ordinarily not compensable, as employment does not usually commence until the claimant has reached the employer’s premises, and the means of an employee’s transportation and the route traveled to work are within his discretion. Dombach v. Olkon Corporation, 163 Conn. 216, 222 (1972). However, there are a number of exceptions to this rule, including situations where the work requires the employee to travel on the highways, the employer furnishes transportation to and from work, or where the employee is injured while using the highway in doing something for the joint benefit of himself and his employer, with the employer’s knowledge and approval. Id.; see also Luddie v. Foremost Ins. Co., 5 Conn. App. 193, 196 (1985); Kolomiets v. Syncor International Group, 3251 CRB-7-96-1 (decided June 23, 1997); Eaton v. Main Heating & Cooling Service, 3473 CRB-3-96-11 (decided Jan. 30, 1998).

In this case, the claimant was employed as a van driver. That job clearly required her to travel on the highways. The commissioner found that her “second run” normally began at 11:15 a.m., when the claimant would leave the bus yard to drive to the Israel Putnam School. The trier also found that on February 23, 1995, the claimant had been given permission to drive the van home after the early morning run. Thus, she was driving to the school from her home instead of from the bus yard, as drivers who had been allowed to use vans for personal use were not expected to “stop by the office” before driving to their destinations. Given that she already had written permission to take a company vehicle home every day after her second run was over, it was hardly unreasonable for the trial commissioner to find that the claimant had obtained valid permission to take the van home after the first shift on February 23, 1995. Consequently, it was reasonable to conclude that, by the time the accident occurred at 11:26 a.m., the claimant was in the process of performing her job: she was driving an employer-owned van to the school to pick up the students she was charged with transporting home.

The respondents’ citation of Woodley v. Rossi, 152 Conn. 1 (1964), and Luddie, supra, does not establish that the claimant’s accident occurred at a time when the claimant was doing something unrelated to the furtherance of her employment. In both Woodley and Luddie, the claimant’s period of employment had come to an end for the day, and the claimant was clearly involved in a frolic of his or her own when the accident occurred. Here, the claimant was actually performing her job—driving a van to pick up schoolchildren—when her accident occurred. The only variation from her normal driving routine was that she was approaching the school from a different route than she normally took from the bus yard. The commissioner was entitled to find that she was performing an act in the furtherance of her employment when she became involved in her car accident, as the facts support such a conclusion.

The trial commissioner’s decision is affirmed. The respondents are ordered to add interest to any portion of this award that has remained unpaid pending appeal pursuant to § 31-301c(b) C.G.S.

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

Workers’ Compensation Commission

Page last revised: June 29, 2005

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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