CASE NO. 3886 CRB-04-98-09
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
NOVEMBER 30, 1999
RALPH SILVESTRO, JR.
NO RECORD OF INSURANCE RESPONDENT-APPELLANT
SECOND INJURY FUND
The claimant was represented by John M. Varrone, Esq., Varrone & Varrone, 4083 Main Street, Bridgeport, CT 06606.
The employer was represented by William Burke, Esq., Law Office of Dominick F. Burke, 1432 Post Road, Fairfield, CT 06430.
The Second Injury Fund, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120, did not appear at oral argument before this Board and did not appear at the trial level below.
This Petition for Review from the August 12, 1998 Finding and Award of the Commissioner acting for the Fourth District was heard May 21, 1999 before a Compensation Review Board panel consisting of the then Commission Chairman, Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.
JESSE M. FRANKL, COMMISSIONER. The respondent employer has petitioned for review from the August 12, 1998 Finding and Award of the Commissioner acting for the Fourth District. In that decision the trial commissioner found that the claimant sustained a compensable injury on November 20, 1997 when he was struck by a car while operating the respondent’s lawn equipment. In support of its appeal, the employer reiterates its argument made before the trial commissioner that the claimant should not have been operating the equipment at that time, and thus that the claimant’s injury did not arise out of or during the course of his employment. We find no error.
We will first address the claimant’s Motion to Dismiss the respondent’s appeal for failure to file an appeal within ten days following the issuance of the trial commissioner’s decision. In the instant case, the respondent filed a Motion to Correct on August 18, 1998, which indicated its intention to pursue an appeal of the trial commissioner’s decision. We conclude that the respondent substantially complied with § 31-301(a) and deny the claimant’s Motion to Dismiss. See Algiere v. General Dynamics, 3466 CRB-8-96-11 (Jan. 27, 1998).
We now turn to the merits of the respondent’s appeal. The trial commissioner found that the claimant began working for the respondent, who owned a lawn care business, in April of 1997 during the spring clean-up season. On November 20, 1997, the respondent dropped off the claimant and another worker to a job site (a residential home). The respondent drove a truck with a trailer attached which carried all of the equipment including riding machines, and left the trailer at the site. The respondent was expected to pick up the workers at the end of the day, but called to notify them that his truck had broken down, and the homeowner agreed to drive home the claimant and the other worker. The respondent spoke with the homeowner and she agreed that the equipment could be left in her yard. While driving the lawn equipment from the trailer to the homeowner’s yard, the claimant was struck by an automobile and sustained severe injuries.
The testimony of the respondent and the claimant differed as to the respondent’s directions during two telephone conversations regarding the equipment on the trailer. The claimant testified that the respondent told him to get the gas cans and the equipment off the trailer and to put them in the homeowner’s yard. On the other hand, the respondent testified that he told the claimant to bring only the gas cans and small items from the trailer into the yard. The trial commissioner found that the claimant “noted that as senior employee he was responsible for equipment and felt that it was his duty to bring the equipment including the machinery to the [homeowner’s] yard.” (Finding ¶ 27). Furthermore, the trial commissioner found that the claimant “insists that he was responsible for the equipment and machinery that was left out on the trailer and that in fact [the respondent] told him to put same in the [homeowner’s] yard.” (Finding ¶ 24). The trial commissioner concluded that the claimant was attempting to protect his employer’s equipment notwithstanding that he may not have followed [the respondent’s] directions to the letter.” (Finding ¶ D.
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 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).
It is an axiom of [workers’] compensation law that awards are determined by a two-part test. The [claimant] has the burden of proving that the injury claimed arose out of the employment and occurred in the course of the employment . The former requirement relates to the origin and cause of the accident, while the latter requirement relates to the time, place and circumstances of the accident. Kish v. Nursing & Home Care, Inc., 248 Conn. 379, 382 (1999) (citations omitted) (emphasis in original).
The court in Kish, supra, further explained:
‘In order to establish that [the] injury occurred in the course of employment, the claimant has the burden of proving that the accident giving rise to the injury took place (a) within the period of the employment; (b) at a place [the employee] may reasonably [have been]; and (c) while [the employee was] reasonably fulfilling the duties of the employment or doing something incidental to it.’
Id. (citing Mazzone v. Connecticut Transit Co., 240 Conn. 788, 793 (1997) (emphasis in original).
The question of whether an injury meets these criteria is factual in nature and is committed to the trial commissioner’s discretion. Kish, supra, at 384.
In support of its appeal, the respondent contends that the claimant disobeyed the respondent’s direct orders when he drove the lawn equipment from the trailer to the client’s yard, after the respondent had told the claimant to retrieve only the gas cans and to go by foot. The respondent cites Dennison v. Connecticut Good Humor, Inc., 130 Conn. 8 (1943) for the proposition that an injury is not compensable when it occurs while the employee acts in opposition to his employer’s orders. The facts of Dennison, however, are readily distinguishable because in that case the claimant “knew he had no authority to operate the truck on the day in question.” Dennison, supra, at 10. In contrast, in the instant case the trial commissioner found that the claimant was responsible for the equipment and felt that it was his duty to bring the equipment to the homeowner’s yard. Thus, in the instant case it was not necessary for the trial commissioner to determine the exact instructions given to the claimant, because the trial commissioner found that the claimant acted with the reasonable belief that he was protecting his employer’s property by moving it off of the trailer into the yard.1
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). In the instant case, the trial commissioner concluded that the claimant was acting in the scope and course of his employment when he was injured. It was within the discretion of the trial commissioner, as the finder of fact, to make this determination. Kish, supra.
Finally, we note that there appears to be no dispute that the respondent did not have workers’ compensation insurance. Under § 31-288(c), a trial commissioner is required to assess a civil penalty against an employer who has failed to comply with the insurance requirements of § 31-284(b). State v. Champagne, 16 Conn. Workers’ Comp. Rev. Op. 245, 3269 CRB-8-96-1 (June 24, 1997). Accordingly, this case must be remanded for findings in accordance with those provisions.
The trial commissioner’s decision is affirmed, and the case is remanded for a hearing concerning the imposition of fines under § 31-288.
Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.
1 The respondent does not contend that the claimant’s conduct constituted willful misconduct pursuant to § 31-284(a), nor does the record support such a conclusion. Section 31-284(a) provides that “compensation shall not be paid when the personal injury has been caused by the willful and serious misconduct of the injured employee or by his intoxication.” Willful and serious misconduct is an affirmative defense, and the respondent has the burden of proving those allegations. Crochiere v. Board of Education, 227 Conn. 333, 356 (1993); Corcoran v. Corcoran Moving and Storage, Inc., 9 Conn. Workers’ Comp. Rev. Op. 237, 239, 1030 CRD-5-90-6 (Oct. 31, 1991). “By willful misconduct is meant either intentional misconduct, that is, such as is done purposely with knowledge, or misconduct of such a character as to evince a reckless disregard of consequences to himself by him who is guilty of it.” Nolan v. Brennan Concrete Corp., 11 Conn. Workers’ Comp. Rev. Op. 224, 229, 1362 CRD-7-91-12 (Nov. 4, 1993), appeal dismissed, A.C. 13041 (Jan. 5, 1994), quoting Gonier v. Chase Companies, Inc., 97 Conn. 46, 55-56 (1921). “No misconduct which is thoughtless, heedless, inadvertent or of the moment, and none which arises from an error in judgment, can be ‘willful and serious misconduct.’” Gonier, supra, at 56 (citations omitted). BACK TO TEXT