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O’Day v. New Britain General Hospital

CASE NO. 3580 CRB-06-97-04

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 5, 1998

PATRICIA E. O’DAY

CLAIMANT-APPELLEE

v.

NEW BRITAIN GENERAL HOSPITAL

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Andrew Krevolin, Esq., Krevolin & Roth, 433 South Main St., West Hartford, CT 06110.

The respondents were represented by Ralph Russo, Esq., 150 North Main St., Manchester, CT 06040.

This Petition for Review from the March 26, 1997 Finding and Award of the Commissioner acting for the Sixth District was heard December 19, 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 respondent employer has petitioned for review from the March 26, 1997 Finding and Award of the Commissioner acting for the Sixth District. In that decision the trial commissioner concluded that the claimant’s automobile accident which occurred on her way home from a luncheon arose out of and during the course of her employment. Specifically, the trial commissioner concluded that the luncheon attended by the claimant did not constitute a voluntary or social function, and thus was not barred by § 31-275(16)(B)(i). In support of its appeal, the employer contends that the record does not support the trial commissioner’s conclusion that the employer required the claimant to attend the luncheon. We find no error on the part of the trial commissioner.

The trial commissioner found the following relevant facts. The claimant was employed by the respondent hospital as a psychiatric nurse clinician. On April 28, 1995, the claimant attended an off-premises birthday luncheon for a co-worker, a fellow nurse clinician. While returning to the hospital the claimant was injured in an automobile accident. The claimant’s supervisor was Jane Bidwell, who did not appear as a witness in this matter.1 Ms. Bidwell stressed teamwork among the nurse clinicians. As part of this teamwork, Ms. Bidwell “expected and required the nurse clinicians to attend birthday luncheons such as the one the claimant attended on April 28, 1995.” (Finding No. 6). The claimant herself did not enjoy socializing or going to parties or luncheons.

Ms. Bidwell stressed to the claimant the need for teamwork and good morale. Teamwork is a “core value” for employees of the respondent employer. A co-worker of the claimant, Mary Lou Graham, testified that Ms. Bidwell “stressed these birthday luncheons in connection with teamwork evaluations as a core value at the hospital.” (Finding No. 19). During weekly work meetings, birthday luncheons were planned for the claimant and the five or six of the claimant’s co-workers who were also nurse psychiatric clinicians. The claimant felt that it was expected of her to attend these birthday luncheons, and did so attend. In fact, the “claimant’s job evaluation was based in part on teamwork which included attendance at the birthday luncheons for co-workers.” (Finding B, emphasis added). Accordingly, the trial commissioner found that the claimant’s “attendance at the luncheon on April 28, 1995 was not voluntary.” (Finding C). Moreover, the trial commissioner found that the major purpose of these birthday luncheons was not social or recreational.

In support of its appeal, the employer contends that the claimant’s decision to attend the birthday luncheons, including the one on April 28, 1995, was voluntary and social, and thus should not be compensable pursuant to § 31-275(16)(B)(i). That section provides that a “personal injury” or “injury” shall not include:

An injury to an employee which results from his voluntary participation in any activity the major purpose of which is social or recreational, including, but not limited to, athletic events, parties, and picnics, whether or not the employer pays some or all of the cost of such activity.

The employer’s argument on appeal is essentially that the record does not support the trial commissioner’s conclusion that the claimant’s attendance at the luncheon was not voluntary, and that the luncheon itself was not social or recreational. In essence, the employer is seeking to have this board retry his case, which we may not do. 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 commissioner as the trier of fact. This fact-finding authority “entitles the commissioner 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)). 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).

In the instant case, the trial commissioner’s conclusion that the claimant’s attendance at the luncheon was not voluntary, and that the luncheon itself was not social or recreational is fully supported by the record. Specifically, the trial commissioner found that the claimant’s supervisor conducted the claimant’s performance reviews, and expected the claimant to attend the birthday luncheons. These luncheons were planned during regular weekly meetings. The employer arranged for the attendees’ positions to be covered by other employees during the luncheons. Furthermore, the claimant’s supervisor, Ms. Bidwell, stressed teamwork among the nurse clinicians, and as part of this teamwork “expected and required the nurse clinicians to attend birthday luncheons such as the one the claimant attended on April 28, 1995.” (Finding No. 6).

The trial commissioner’s findings are supported by the claimant’s testimony and by the testimony of a co-worker of the claimant, Mary Lou Graham, who testified that Ms. Bidwell “stressed these birthday luncheons in connection with teamwork evaluations as a core value at the hospital.” (Finding No. 19). Moreover, the trial commissioner’s conclusion that the birthday luncheons were not social in nature is supported by the claimant’s testimony that the luncheons consisted primarily of work-related discussions. (See 11/27/96 TR. at p. 10).

The trial commissioner’s conclusion that the claimant’s attendance at the luncheon was not voluntary, and that the major purpose of the luncheon was not social or recreational, is based upon findings of fact which are fully supported by the record. Accordingly, we will not disturb such a determination. See Fair, supra.

The trial commissioner’s decision is affirmed.

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

1 The employer did not call any witnesses. (Finding No. 21). BACK TO TEXT

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