State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Bogrette & Bogrette v. Merriam Motors

CASE NO. 3538 CRB-08-97-02

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 22, 1998

ESTATE OF EDMUND J. BOGRETTE

and

KAREN BOGRETTE, Dependent widow of EDMUND BOGRETTE (Deceased)

CLAIMANT-APPELLEE

v.

MERRIAM MOTORS

EMPLOYER

and

MATHOG & MONIELLO

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by David A. Kelly, Esq., Montstream & May, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

The respondents were represented by Robert S. Cullen, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Vernon, CT 06066.

This Petition for Review from the February 10, 1997 Finding and Award of the Commissioner acting for the Eighth District was heard October 17, 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 February 10, 1997 Finding and Award of the Commissioner acting for the Eighth District. In that decision the trial commissioner concluded that the decedent’s fatal injury of July 14, 1995 arose out of and in the course of his employment. The injury occurred while the decedent was using the respondent employer’s forklift to help a neighboring business. The trial commissioner found that the decedent’s use of the forklift was incidental to his employment and constituted a benefit to the respondent employer. In support of their appeal, the respondents contend that the trial commissioner erred by concluding that the injury arose out of and in the course of the employment.

We will first address the claimant’s Motion to Dismiss the respondents’ appeal based upon the alleged late filing of the respondents’ Reasons of Appeal. The respondents’ Reasons of Appeal were due on March 10, 1997 pursuant to the ruling on the respondents’ Motion for Extension of time. The respondents’ Reasons of Appeal were filed on March 11, 1997. The claimant has not alleged that he suffered any prejudice due to the one day late filing. We deny the Motion to Dismiss.

We will now address the merits of the respondents’ appeal. The trial commissioner found the following relevant facts. The decedent was employed by Merriam Motors (“Merriam”) on July 14, 1995. The decedent’s position was that of a mechanical foreman in Merriam’s repair shop, and his daily duties included operating a forklift. Located across the street from Merriam was R & R Auto Parts (hereinafter “R & R”) an independent retailer which sold auto parts. The proprietor of R & R, Ron Canning, was notified of a potential delivery of a heavy compressor on July 13, 1995, the day prior to the accident. On July 13, 1995, Canning called the decedent and asked if he would help unload the compressor, and the decedent agreed.

On July 14, 1995, Canning crossed the street from R & R to Merriam to locate the decedent. First he met up with Claude Harris, a parts man at Merriam, and was directed to where Harris thought the decedent would be. Next, Canning met Sean Chmielewski, a service technician at Merriam, who directed Canning to the time clock where the decedent was returning from lunch. The decedent punched in and then talked to Canning. The decedent drove the forklift down Merriam’s driveway and along Route 5 to where the tractor-trailer was parked. While driving the forklift, the decedent took the compressor from the tractor-trailer and placed it in the bed of a pickup truck owned by an employee of R & R. The decedent swung the forklift around in an attempt to get a good angle to push the compressor more fully into the pickup truck. In swinging the forklift around, the forklift fell over and landed on the decedent, causing his death.

Additionally, the trial commissioner found: “While the tractor-trailer truck delivering the compressor was clearly located on the side of Route 5, a public highway, it appears that the pickup truck was located on the property of Merriam Motors.” (Finding No. 14). “The forklift tipped over in an area which is clearly under the care, custody and control of Merriam Motors. The area had been maintained by Merriam and used nearly exclusively by the customers and employees of Merriam. The record is not entirely clear whether it was on the property owned by Merriam.” (Finding No. 15). The claimant was to receive no remuneration from R & R. Management at Merriam was not asked to assist in the unloading of the compressor, and management at Merriam was unaware that the decedent had agreed to use the forklift to unload the compressor for Canning.

The trial commissioner further found that the respondents contended that the decedent did not have the authority to offer his services, including the use of the forklift, to R & R.1 Merriam and R & R did business with each other about five to ten times per day and hundreds of times over the course of a year. Most of the transactions were purchases by Merriam from R & R, and there was also significant business where R & R bought parts from Merriam. From time to time, R & R would call Merriam for advice as a favor without remuneration, and on occasion Merriam would call R & R for assistance regarding parts which were hard to find. “The management of Merriam felt that it was good business to do business with their neighbors and had done business with R & R Auto Parts and other neighboring businesses.” (Finding 26).

In support of their appeal, the respondents contend that (1) the record does not support a determination that the injury occurred on the respondent employer’s premises; (2) the record does not support the trial commissioner’s conclusion that the decedent’s use of the forklift to help R & R was incidental to his employment; (3) the record does not support the trial commissioner’s conclusion that the decedent’s use of the forklift to help R & R constituted a benefit to Merriam; and (4) the trial commissioner erred in denying their Motion to Correct.

Whether the trier erred in finding that the 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. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). Moreover,

It is well settled that “[i]n 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.” McNamara v. Hamden, 176 Conn. 547, 550-51 (1979). “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 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), quoting Dombach v. Olkon Corporation, 163 Conn. 216, 221-22 (1972); Bell v. U. S. Home Care Certified of Connecticut, 13 Conn. Workers’ Comp. Rev. Op. 294, 1792 CRB-1-93-8 (April 21, 1995). The question of whether an injury meets these criteria is factual in nature and is committed to the trial commissioner’s discretion. Tovish, supra, 605.
Kaplan v. State of Connecticut/Department of Health Services, 14 Conn. Workers’ Comp. Rev. Op. 296, 297-98, 2012 CRB-1-94-4 (Sept. 11, 1995).

First, we note that the trial commissioner found that the decedent had returned from his lunch break and punched in, and thus found that the decedent was within the period of his employment.2 Second, we will address the respondents’ contention that the injury did not occur on the respondent employer’s premises. To the contrary, the trial commissioner specifically found that the injury occurred “in an area which is clearly under the care, custody and control of Merriam Motors.” (Finding No. 15) (emphasis added). The trial commissioner specifically found that “(t)he area had been maintained by Merriam and used nearly exclusively by the customers and employees of Merriam.” (Finding No. 15). In that finding, the trial commissioner also found that that the record was “not entirely clear whether it was on the property owned by Merriam.”

The respondents do not offer any legal support for their contention that the respondent employer must be the legal owner of the property where the injury occurred in order to be liable under the Workers’ Compensation Act. Indeed, our courts have repeatedly required that “[i]n 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.” McNamara, supra, at 550-551 (emphasis added); see also Mazzone v. Connecticut Transit Co., 240 Conn. 788, 793 (1997); Spatafore v. Yale University, 239 Conn. 408, 418 (1996). The requirement that the injury occur “at a place the employee may reasonably be” does not necessarily include the requirement that the employer be the legal owner of said place.

Thirdly, we will address the issue of whether the claimant was at a place he may reasonably have been at the time of the accident. Our Supreme Court has recently addressed the question of whether a claimant’s injury which occurred during an unpaid lunch break on an unused bus on the employer’s premises occurred in the course of his employment. Mazzone, supra. In that case, the court concluded that as a matter of law, eating lunch was incidental to the claimant’s employment. The court further concluded that as a matter of law, the claimant was within the period of his employment during the unpaid lunch break on the employer’s premises. However, the court held that a question of fact existed as to “whether the claimant, by choosing to eat lunch on an out of service bus, was in a place in which he reasonably was entitled to have been.” Id. at 791.

The court in Mazzone analyzed the requirement that a claimant be “at a place [he] may reasonably [have been].” Mazzone, supra, at 796. Specifically, the court explained that “under this part of the ‘in the course of employment’ test, the claimant cannot prevail simply by proving that he was on the employer’s premises at the time of his injury.” Id. The court explained that “there is no magic in being on the premises, if the employee is injured by getting into places where he has no right to go.” Id. (quoting 1A A. Larson & L. Larson, Workmen’s Compensation (1996) § 21.21(d), p. 5-18) (emphasis added). Rather, the court explained that “the claimant, in order to be eligible for compensation, must have had a right to be on the out of service bus when his accident occurred.” Id. (citations omitted).

Similarly, in Kish v. Nursing & Home Care, Inc., 47 Conn. App. 620 (1998), the court explained that where the claimant could “reasonably be found driving her automobile in the general area of the accident during her work day, with either the express or implied permission or acquiescence of her employer, it was not improper for the commissioner to find that she was reasonably at the place where the injury occurred.” Kish, supra, at 625 (emphasis added). Accordingly, it follows that in order to be compensable, in the instant case the decedent at the time of the injury must have either “had a right” to be using the forklift to help R & R, or must have done so with either the express or implied permission or acquiescence of the respondent employer.

In the instant case, the question of whether the decedent while driving the forklift at the time of his injury “was in a place in which he reasonably was entitled to have been” constitutes a question of fact. See Mazzone, supra, at 791. Specifically, the trial commissioner found that the respondents contended that the decedent did not have the authority to offer his services, including the use of the forklift, to R & R. However, the trial commissioner did not make a finding regarding this contention, and therefore it is unclear whether the claimant at the time of injury“was in a place in which he reasonably was entitled to have been.”

Accordingly, we remand this matter for a determination of this issue.

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

1 The trial commissioner did not make a finding as to whether or not the claimant had such authority. BACK TO TEXT

2 The respondents acknowledge in their brief that “(i)n reviewing the findings and reviewing the facts found there is support that the claimant was in the course of his employment in that he had checked in following lunch.” (Respondents’ Brief at p. 22). BACK TO TEXT

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