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Luciana v. New Canaan Cemetery Assn.

CASE NO. 3644 CRB-07-97-07

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 12, 1998

JOSEPH D. LUCIANA

CLAIMANT-APPELLANT

v.

NEW CANAAN CEMETERY ASSN.

EMPLOYER

and

ITT HARTFORD

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Gregory Williams, Esq., Law Offices of Todd H. Lampert, 750 Summer Street, Stamford, CT 06901.

The respondents were represented by Richard Aiken, Esq., and Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

This Petition for Review from the July 8, 1997 Finding and Dismissal of the Commissioner acting for the Seventh District was heard February 20, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the July 8, 1997 Finding and Dismissal of the Commissioner acting for the Seventh District. He argues on appeal that the trier erred by finding that his injury did not arise out of and in the course of his employment. We affirm the trial commissioner’s decision.

The trial commissioner found that the claimant was employed by the respondent New Canaan Cemetery Association on February 4, 1993 as a maintenance worker. On that date, he worked until his 12:45 lunch break. During his break, he remained on the employer’s premises, where he became engaged in the activity of splitting wood. The claimant pursued this activity as a separate business, which the employer allowed him to conduct on its premises. The cemetery association did not provide the claimant with any of his woodcutting equipment, nor did it profit financially from this business. The claimant seriously injured his right hand while cutting wood. He filed a workers’ compensation claim against the cemetery association, but the trial commissioner concluded that the injury he suffered while splitting wood did not arise out of and in the course of his employment with the cemetery association. The claimant has appealed that decision, along with the denial of his Motion to Correct and his Motion for Articulation.1

As the fact-finder in a workers’ compensation case, the trial commissioner is empowered to judge the credibility of the testimony and documentary evidence presented by the parties. Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995). He is required to include in the findings only the ultimate, relevant and material facts essential to the case; he need not include excerpts from evidence or merely evidential facts, as well as his opinions or the reasons for his conclusions. Id., citing Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979); Admin. Reg. § 31-301-3. Upon review, the trier’s findings cannot be changed unless they contain facts found without evidence, or unless they fail to include undisputed facts which will have an effect on the outcome of the case. Kish v. Nursing & Home Care, Inc., 47 Conn. App. 620, 627 (1998); Webb, supra, 118. His legal conclusions will likewise remain intact unless they result from an incorrect application of the law or from an unreasonable or illegal inference drawn from the facts found. Id., citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

The claimant proposed 33 corrections to the factual findings, most of which concerned the details of the wood-splitting business and the degree of involvement that cemetery employees and association officeholders had in this endeavor. In order to establish a compensable injury, the claimant needed to prove that his wounded hand arose out of and in the course of his employment. Herman v. Sherwood Industries, Inc., 244 Conn. 502, 505 (1998). An injury arises out of the employment when it occurs in the course of the employment and is the result of a risk involved in the employment or incident to the conditions under which the employment is performed. Dombach v. Olkon Corp., 163 Conn. 216, 221-22 (1972). An injury occurs in the course of the employment if it takes place within the period of employment, at a place the employee may reasonably be, and while the employee is fulfilling the duties of the employment or doing something incidental to it. Herman, supra, 506. The corrections proposed by the claimant were primarily intended to establish that the cemetery not only acceded to the claimant’s use of their property in splitting wood, but actively assisted him in this pursuit during business hours, and that the cemetery derived a financial benefit from the claimant’s removal of this wood. These proposed findings are primarily culled from the testimony of the claimant, his supervisor, Thomas Hickey, and the cemetery’s office manager, Gail Overbeck. See October 7, 1996 Transcript.

We begin by noting that the trial commissioner was not bound to find credible the particular statements of any of the witnesses, whether or not they were expressly contradicted. Jusiewicz, supra. Some of the claimant’s requested corrections are directly inconsistent with testimony in the record. For example, the claimant testified that Thomas Hickey would occasionally direct him to split wood during Cemetery business hours, and requested a finding as such. In contrast, Hickey himself testified that he never directed the claimant to cut wood during business hours. Transcript, p. 91-93. The trier was entitled to choose which statement was more credible, and we cannot reverse that determination on review. Hickey’s testimony plainly states that the claimant’s wood-splitting activities were conducted completely outside the business operation of the cemetery, and the trial commissioner was entitled to believe those remarks.

Moreover, we do not believe that the facts that the claimant alleges are uncontradicted, even if included in the findings, would necessarily establish the legal conclusion that the claimant is attempting to draw. The “undisputed” facts propounded by the claimant would establish that Bruce Pauley, one of the directors on the cemetery’s board of directors, also owns his own tree service company, which has been dumping cut tree wood at the 40-acre cemetery since the early 1980’s. This wood is apparently mixed with wood from trees that are cut down on the premises of the cemetery itself. At the time of the claimant’s injury, he and Donny Ray, a fellow cemetery employee, were in the practice of using Pauley’s log splitter to split the tree wood during their free time, including during their unpaid lunch breaks.2 Afterward, they would sell the wood and divide the profits between themselves and Pauley.

The claimant’s argument that his injury occurred during the period of his employment and during an activity incidental to his employment relies heavily on two Connecticut Supreme Court cases: Mazzone v. Connecticut Transit Co., 240 Conn. 788 (1997), and McNamara v. Hamden, 176 Conn. 547 (1979). In McNamara, the Court was faced with an employee who was injured playing Ping-Pong on the employer’s premises shortly before his workday began. The Court explained that the claimant was in a place he could reasonably be and was within the period of his employment even though the official work day had not yet commenced. Id., 551. “The exact time is not significant, so long as the employee is on the premises reasonably close to the start or finish of the work day. . . . [A] distinction based on an activity’s occurring five minutes before work, as opposed to at lunch or during the last half hour of the work day, would be unwarranted especially because both the early gathering and the recreation involved here were together designated by the employer as permissible activities.” Id., 551-52. The Court explained that when an employee is on the premises and is within the period of employment, it is not necessary to satisfy the test of employer benefit; instead, one should merely ask whether the activity is incidental to the employment. The Court discussed various horseplay and personal comfort cases, and set forth the following test: if an activity is regularly engaged in on an employer’s premises within the period of the employment, with the employer’s approval or acquiescence, an injury occurring under those conditions is compensable. Id., 556.

In Mazzone, supra, the Court reemphasized that the time requirement portion of the “in the course of the employment” test is not compromised by the temporary suspension of work for a permitted rest period, a lunch hour, or a restroom break. Id., 794. There, the claimant was injured on the employer’s premises during an unpaid lunch break, which the Court found to be within the period of his employment. The Court also held that the activity of eating lunch, being reasonably necessary to the claimant’s health and comfort, was incidental to his employment, even though it was only indirectly conducive to the purpose of his employment. Id., 795.

We do not believe that the facts of this case fall within the ambit of the holdings of Mazzone and McNamara. Although the instant claimant was indeed on the employer’s premises when he was injured, and was taking an unpaid lunch break at the time, he was not merely getting coffee, using the restroom, eating lunch, smoking, or playing Ping-Pong in a designated recreation area. Instead, he was chopping wood—an intrinsically hazardous activity—as a means of furthering his interests in a separate financial endeavor. There is a tremendous philosophical difference between incorporating into the scope of employment acts of personal comfort and recreation that occur on an employer’s premises and incorporating acts that are undertaken in performance of another job. We do not read the term “activity” as used in McNamara or Mazzone to include acts that are incidental to running one’s own business on the side. Indeed, the claimant could conceivably have been covered under a separate workers’ compensation insurance policy for the wood-chopping business, had he sought to obtain one.

Even though the cemetery allowed the claimant and his log-splitting associates to chop wood on their premises, this did not make that activity part of or an incident of running the business of the cemetery as a matter of law. The trial commissioner was more than entitled to find that a separate identity existed between the cemetery’s business and a wood-cutting venture of several cemetery employees that was made possible because of the wood disposal practices of a tree care business owned by a member of the cemetery association’s board of directors. See Transcript, p. 61-82. The difference between the facts of this case and those in McNamara or Mazzone is readily apparent.

We thus affirm the trial commissioner’s decision.

Commissioners Donald H. Doyle, Jr., and Michael S. Miles concur.

1 We do not believe the commissioner’s decision was legally insufficient under Admin. Reg. § 31-301-3, and find no error in his denial of the Motion for Articulation. BACK TO TEXT

2 The claimant represented in his Motion to Correct that the respondents’ also requested a finding that “[t]he Cemetery permitted Mr. Luciana to split the wood during his lunch break, after work hours, and during Cemetery work hours after the unpaid lunch break.” In fact, the respondents’ proposed finding #27 says nothing about the claimant splitting wood during Cemetery work hours (which would indeed be a significant admission by the Cemetery). This board would appreciate greater precision on the part of claimant’s counsel with respect to these matters in the future. BACK TO TEXT

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