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Desrosins v. Stop & Shop, Inc.

CASE NO. 3860 CRB-07-98-07

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 18, 1999

REMS DESROSINS

CLAIMANT-APPELLEE

v.

STOP & SHOP, INC.

SELF-INSURED

EMPLOYER

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Brendan T. Canty, Esq., Kerin & Canty, 5 Mott Avenue, Norwalk, CT 06850.

The employer was represented by Andrew H. Sharp, Esq., Morrison, Mahoney & Miller, 100 Pearl Street, Hartford, CT 06103.

This Petition for Review from the July 9, 1998 Finding and Award of the Commissioner acting for the Seventh District was heard March 26, 1999 before a Compensation Review Board panel consisting of Commissioners Angelo L. dos Santos, Stephen B. Delaney and John A. Mastropietro.

OPINION

ANGELO L. dos SANTOS, COMMISSIONER. The respondent employer has petitioned for review from the July 9, 1998 Finding and Award of the Commissioner acting for the Seventh District. In that decision the trial commissioner found that the claimant sustained a compensable injury on September 28, 1996 when he fell in the employer’s parking lot. Specifically, at the end of his shift, the claimant was running to his car to avoid a fellow employee who was persistently requesting that the claimant exchange his working hours with him for the following day. In support of its appeal, the employer reiterates its argument made before the trial commissioner that the incident constituted horseplay and is thus not compensable.

In the instant case, the trial commissioner found that on September 28, 1996, the claimant completed his shift at approximately 10:00 P.M. and proceeded towards his car in the employee parking area provided by the employer. A fellow employee began a persistent conversation with the claimant requesting that the claimant exchange hours with him for the following day. Showing no interest in such an exchange and in an attempt to end the conversation, the claimant began running to his car. The route taken by the claimant was not the most direct route. While running to his car, the claimant fell, and instinctively put out his hands to break his fall, landing on a glass bottle which lacerated his right hand. The trial commissioner concluded that the claimant’s “less than direct route” in proceeding to his car was a “minor and inconsequential deviation.”

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). An injury which occurs in a parking area under the control of the employer may be found to arise out of and in the course of the employment. Chavarriaga v. Pathmark, 5 Conn. Workers’ Comp. Rev. Op. 16, 363 CRD-7-84 (1988). The power and duty of determining the facts rests on the trial commissioner as the trier of fact. 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). Regarding horseplay, the Connecticut Appellate Court has stated:

‘[W]here an employee indulges in horseplay with his fellow employees during the hours of his employment with resulting injury to himself, his injuries cannot be deemed to have had any causal connection with his employment. In such case he has voluntarily departed from the duties of this employment and embarked upon an enterprise of his own not contemplated by the terms of his employment. His injuries result from his own act and from a condition brought about by himself and not incident to his employment. They have their origin in a risk which he has himself created and which has no causal connection with his employment.
Simmons v. Bonhotel, 40 Conn. App. 278, 282-83, n. 3 (1996), citing Mascika v. Connecticut Tool & Engineering Co., 109 Conn. 473, 477 (1929).

In the instant case, the issues before the trial commissioner were whether the claimant’s injury arose out of and in the course of his employment and whether the injury was the result of horseplay. (5/28/98 TR. at 5). The trial commissioner did not find, as argued by the employer, that the claimant’s conduct of running in the parking lot constituted horseplay. Rather, the trial commissioner found that the claimant’s conduct of running to his car in a less than direct route constituted a “minor and inconsequential deviation.” (Findings ¶ b). The trial commissioner, as the trier of fact, was entitled “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)). As the trial commissioner’s findings are fully supported by the evidence in the record, including the testimony of the claimant, and we will thus not disturb them.

The trial commissioner’s findings amply support the determination that the claimant’s injury was a compensable injury which was not the result of horseplay. As set forth in Simmons, supra, the horseplay doctrine is based upon the principle that an injury does not arise out of the employment where a claimant “voluntarily depart(s)” from his or her duties and the injury results from “a risk which he has himself created.” Simmons, supra. Here, the trial commissioner determined that the claimant’s conduct of running to his car in a less than direct route constituted a “minor and inconsequential deviation.” Accordingly, the trial commissioner did not find that the incident constituted horseplay. We find no error, as it was within the discretion of the trial commissioner, as the trier of fact, to assess the evidence and to determine whether the claimant’s act of running towards his car constituted horseplay.

We will now address the employer’s contention that the trier erred in denying all but one of the requested findings in its Motion to Correct. The employer requested findings which would indicate that the claimant was not running directly towards his car at the time he fell, and that there was no evidence that the employer condoned such running in the parking lot. In fact, the trial commissioner specifically found that the route taken by the claimant to his car was “not the most direct route.” (Finding ¶ 5).

Our Supreme Court has stated that “no bright line test distinguishes activities that are incidental to employment from those that constitute a substantial deviation therefrom. . . .The question of deviation is typically one of fact for the trier.” Kish v. Nursing & Home Care, Inc., 248 Conn. 379, 386 (1999) (citation omitted) (emphasis added). Moreover, the court explained: “If the deviation is so small as to be disregarded as insubstantial, then the lack of (the employer’s) acquiescence is immaterial.” Id. at 389. In the instant case, the trial commissioner concluded that the claimant’s act of running towards his car in a less than direct route constituted a “minor and inconsequential deviation.” It was within the discretion of the trial commissioner, as the finder of fact, to make this determination. Kish, supra. Because the trier found the claimant’s deviation to be minor and inconsequential, any lack of acquiescence on the part of the employer was immaterial. Id. We thus find no error in the denial of the Motion to Correct, as a Motion to Correct may be denied where the legal conclusion of the commissioner would not be altered by the substituted findings. Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 152, 1608 CRB-1-92-12 (Feb. 6, 1995); Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994).

The trial commissioner’s decision is affirmed.

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

Workers’ Compensation Commission

Page last revised: April 8, 2005

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