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Demooy v. Easter Seal Society of CT., Inc.

CASE NO. 3852 CRB-04-98-07

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 2, 1999

ERWIN DEMOOY

CLAIMANT-APPELLEE

v.

EASTER SEAL SOCIETY OF CT., INC.

EMPLOYER

and

CONNECTICUT HOSPITAL ASSOCIATION WORKERS’ COMPENSATION TRUST

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Laurence Parnoff, Esq., 1566 Park Avenue, Bridgeport, CT 06604.

The respondents were represented by Andrew A. Cohen, Esq., Letizia, Ambrose & Cohen, One Church Street, New Haven, CT 06510.

This Petition for Review from the June 24, 1998 Finding and Award of the Commissioner acting for the Eighth District was heard February 26, 1999 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Stephen B. Delaney and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the June 24, 1998 Finding and Award of the Commissioner acting for the Eighth District. They argue on appeal that the trial commissioner erred by finding that the claimant’s automobile accident arose out of and in the course of his employment. We affirm the trial commissioner’s decision.

The claimant was injured in a car accident on the night of July 15, 1995. A citizen of Holland, he was recruited by a local church organization to work as a full-time counselor at Camp Hemlocks, a Hebron summer camp for disabled and handicapped people. He was flown to the United States by the respondent Easter Seals, and received full room and board at Camp Hemlocks during the summer of 1995. Counselors are required to work 24 hours per day during a ten-day camp session, and then receive one full day off, including an overnight if they wish to leave the camp. Because the claimant did not have a car or a driver’s license, he lived at the campground for the entire summer, with the exception of an occasional overnight that could be arranged.

One such overnight was the claimant’s trip to New York on July 14, 1995. He accompanied some friends into the city, and returned to Camp Hemlocks during the afternoon hours of July 15, 1995. He was obligated to be back at camp that afternoon in order to review the files for the incoming campers who would be arriving the following morning, and was also required to be present at dinner that evening for a staff meeting. Subsequent to that dinner, the claimant felt his heart racing (which proved to be a reaction to his asthma inhaler), and expressed his discomfort to a fellow counselor. The camp director, Sunny Ku, was summoned, and after a discussion amongst the counselors, Ku decided to drive the claimant to the emergency room using an employer-owned vehicle. (The full-time resident nurse happened to be away from the camp at the time, and the employer’s contract noted that Camp Hemlocks would provide for the medical needs of all counselors.) On the way back from the emergency room, with Ku driving and the claimant in the front passenger seat, the employer’s vehicle was rear-ended and forced down an embankment. The claimant and Ku were both severely injured; the claimant, in fact, was hospitalized for burns, and remained in a wheelchair for approximately two months before returning to his home in Europe.

Although the respondents immediately granted the camp director workers’ compensation benefits, they denied the claimant such remuneration. The respondents maintained, and still maintain, that the claimant was not in the course of his employment when he was injured, because his accident occurred on a public highway, and his injuries did not arise out of and in the course of his duties as a camp counselor. The trial commissioner disagreed. He found that the claimant did not leave the campsite by choice or for social reasons, but was a victim of circumstances that required him to be taken off the premises to receive medical treatment. He also stated that the respondent employer had a special obligation to this 24-hour-per-day employee, who was required to live on the premises, and who became ill at a time when there were no medical personnel on the campground. The commissioner thus deemed it irrelevant that the claimant’s injury was sustained off the employer’s premises, and found that the injury occurred within the course and scope of his employment as a full-time resident camp counselor. The respondents have appealed that decision to this board.

In order to recover for an injury under the Workers’ Compensation Act, a claimant must prove that his injury is causally connected to his employment. Spatafore v. Yale University, 239 Conn. 408, 417 (1996). In order to establish this connection, the claimant must satisfy a two-part test: he must demonstrate that his injury (1) arose out of his employment, and (2) that it occurred in the course of his employment. Id., 417-18. Whether or not these elements have been established is a question of fact for the trial commissioner, who must draw inferences from the subordinate factual findings to make that decision. Id., 418.

Although a respondent has a statutory right to appeal an adverse decision to this board, our scope of review is limited. Kolomiets v. Syncor International Corp., 51 Conn. App. 523, 527 (1999). We may not retry the facts, as the commissioner is the sole arbiter of all issues concerning the weight and credibility of the evidence presented. Ferri v. Double A Transportation, Inc., 3503 CRB-8-96-12 (April 29, 1998). This board may not disturb his findings unless they are without support in the record, or unless his decision omits undisputed material facts. Id. 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 upon an inference unreasonably or illegally drawn from them. Id., citing Mazzone v. Connecticut Transit Co., 240 Conn. 788, 792 (1997).

The respondents contend on appeal that the claimant’s injury neither arose out of his employment, nor occurred within its course. As this claim of error concerns both prongs of the “arising out of and in the course of employment” test, we must address them separately. An injury arises out of a claimant’s employment when, in light of the time, place and circumstances of the injury, there is a causal connection between the injury and the claimant’s employment. Crochiere v. Board of Education, 227 Conn. 333, 350 (1993). In other words, not only must it occur within the course of the claimant’s employment, but it must also result from a risk incident to it, or the conditions under which the employment is performed. Tovish v. Gerber Electronics, 32 Conn. App. 595, 607 (1993), affirmed, 229 Conn. 587 (1994) (per curiam).

With respect to causal connection, we disagree with the respondents’ allegation that everything about the evening of July 15, 1995 was “personal in nature” to the claimant. Amidst their objection to the trier’s finding that the claimant was “on duty” at the time of his injury, the respondents (parenthetically) concede that the claimant was required to be present at the camp that night. Brief, p. 6. This small detail renders it immaterial whether the claimant was actually “on duty” when he began experiencing heart palpitations, and the trier did not err in refusing to correct his findings.

The claimant’s employment contract required him to be on the premises at the time he fell ill. According to the Staff Handbook, the camp director was responsible for the health, safety and well-being of both campers and staff. Claimant’s Exhibit E, p. 23. The commissioner was entitled to infer that this duty existed whenever a staff member was on the premises, especially when that staff member is a Dutch teenager who is residing full-time on the campground for the entire summer. Even though the claimant’s cardiac symptoms were apparently unrelated to his job, his employment status as a Camp Hemlocks counselor essentially mandated that his medical needs would be tended to by his employer; see Claimant’s Exhibit F, p. II K; which directly led to his presence in the employer’s vehicle at the time of the automobile accident. Given the humanitarian and remedial purposes of the Workers’ Compensation Act, this circumstance is properly construed as having arisen out of the claimant’s employment. Herman v. Sherwood Industries, Inc., 244 Conn. 502, 511 (1998).

The other prong of the “compensable injury” test, whether the injury occurred in the course of the claimant’s employment, is in itself a three-part inquiry. The claimant must demonstrate that the accident giving rise to his injury took place (a) within the period of the employment; (b) at a place he could reasonably have been, and (c) while he was reasonably fulfilling his employment duties, or doing something incidental to them. Kish v. Nursing & Home Care, Inc., 248 Conn. 379, 383 (1999). The trier found, in accord with the claimant’s testimony and the evidence cited above, that the claimant did not choose to leave the premises of the campsite, but instead was required to obtain medical care at the emergency room by the camp director, who had a special obligation (as the employer’s agent) to ensure that the claimant received proper care. Findings, ¶ F, I, J. As the employer provided and controlled the transportation to and from the hospital, the trier reasonably concluded that the claimant was both at a place he could reasonably have been and doing something incidental to his employment duties when the accident occurred. See Mazzone, supra, 795 (performance of personal acts necessary to health of employee are incidental to employment, and employer acquiescence to presence of claimant on out-of-service bus would establish that he was somewhere he reasonably could have been).

In support of their argument that the claimant was not within the period of his employment, the respondents invoke Carroll v. Westport Sanitarium, 131 Conn. 334 (1944), a case in which a maid who was required to live on the employer’s premises was compensated for an off-hours injury she suffered while stepping on a “clinker” (a lump of incombustible, possibly vitrified, coal residue) that lay along a path leading to her cottage. They contend that this case also establishes that the injury must be suffered on the employer’s premises to be compensable, as an injury suffered off-premises “would undoubtedly [fall] within the rule denying compensation to an employee engaged upon business distinctly his own.” Id., 339. This argument is unpersuasive.

At the time the claimant was injured, he was present in a vehicle owned and operated by the employer, and was there at the employer’s behest (albeit in response to his own illness). The accident occurred while he was returning to the campground, where he was supposed to be pursuant to his employment contract. He was not on a frolic or detour that he had willfully devised, as was, for example, the claimant in Brewer v. National Theatre, 11 Conn. Workers’ Comp. Rev. Op. 1, 1237 CRD-4-91-5 (Jan. 28, 1993) (claimant was injured climbing over the fence around the swimming pool area of the motel at which she and her theater group were staying, and was not compensated). Instead, he was adhering as best he could to the terms of his employment agreement when he was injured in the car accident of July 15, 1995. Just as the traveling salesman in Harivel v. Hall-Thompson Co., 98 Conn. 753 (1923), was compensated for injuries he sustained while escaping from a fire at the hotel where he was required by his employer to stay, the instant claimant should be compensated for injuries he sustained while his employer was transporting him back to the place of his employment—the place at which he was required to reside.

The trial commissioner is hereby affirmed. Pursuant to § 31-301c(b), interest is also awarded on any payable benefits that were not remitted to the claimant during the pendency of this appeal.

Commissioners Stephen B. Delaney and John A. Mastropietro concur.

Workers’ Compensation Commission

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