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Sendra v. Plainville Board of Education

CASE NO. 3961 CRB-06-99-01

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 20, 2000

JOSE A. SENDRA

CLAIMANT-APPELLANT

v.

PLAINVILLE BOARD OF EDUCATION

EMPLOYER

SELF-INSURED

and

AON RISK SERVICES OF CT, INC.

ADMINISTRATOR

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Christine L. Engel, Esq., Law Offices of Jeffrey C. Nicholas, 373 Prospect Street, Torrington, CT 06790.

The respondent was represented by Scott W. Williams, Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430.

This Petition for Review from the December 29, 1998 Finding and Dismissal of the Commissioner acting for the Sixth District was heard August 6, 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.

OPINION

JESSE M. FRANKL, COMMISSIONER. The claimant has petitioned for review from the December 29, 1998 Finding and Dismissal of the Commissioner acting for the Sixth District. He argues on appeal that the trier erred by finding that his mountain biking injury did not arise out of and in the course of his employment as a teacher. We affirm the trial commissioner’s decision.

The trier found that the claimant was employed as a Spanish teacher at Plainville High School. With the school administration’s approval, he had established a Spanish club in which students were invited to participate. A fellow teacher, Ernest Zike, had an interest in mountain biking, and received a $500 “mini-grant” from the school principal to purchase bikes and safety equipment in conjunction with his establishment of a biking club. The claimant, who had become interested in mountain biking, approached Zike about participating in the biking club. The claimant’s interest was of a personal nature, and he had no expectation of being paid for his time.

Pursuant to his involvement with the biking club, the claimant prepared some flyers that Zike posted to advertise a Saturday, March 25, 1995 biking club meeting. September 23, 1998 Transcript, p. 10. At 3:00 p.m. on that date, the claimant, Zike and about 15 students met on the premises of the high school. The group rode their bikes to a nearby park, where they began mountain biking. At about 5:00 p.m., the claimant agreed to stay with some students who wanted to do additional mountain biking, while the others returned home. Shortly thereafter, the claimant tumbled over the handlebars of his bike during a jump, and landed on his head. He suffered serious physical injuries, including two fractured cervical vertebrae.

The trial commissioner found that the claimant voluntarily participated in the club based on his interest in the sport, and was not compelled or expected to do so by his employer. Section § 31-275(16)(B)(i) excludes from the definition of “personal injury” any “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.” As the claimant’s club involvement was voluntary, recreational and social, the trier ruled that the claimant’s injuries were not compensable based on the exclusionary provision of § 31-275(16)(B)(i). He thus dismissed the claim, which ruling was appealed, along with the denial of the claimant’s Motion to Correct.

The claimant raises two distinct arguments on review. He contends that his involvement in the mountain biking club was supervisory rather than participatory, and challenges the denial of his Motion to Correct. He also contends that a 1997 amendment to § 31-275(16)(B)(iv) that insured the compensability of injuries suffered by a teacher while participating in school-sponsored activities ought to be applied to this case as well, as the amendment was intended to correct an inadvertent omission in the 1993 legislation that originally created the exclusionary language of § 31-275(16)(B)(i). We shall address both of these points, which prove to be interwoven, in our resolution of this appeal.

The claimant’s Motion to Correct sought corrections to the trier’s decision that would have detailed his general involvement with extracurricular activities and his organizational duties with the biking club in particular, including the fact that he was supervising the remaining students at the moment of his injury. It is axiomatic that the trial commissioner is the fact finder in any workers’ compensation case. His duty is to consider the testimony and exhibits in the record, assess their credibility, and draw inferences and legal conclusions that are based on his impressions. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995). This standard applies even where evidence appears to be uncontradicted. Pallotto, supra. When the trier reviews a Motion to Correct, he must evaluate the proposed changes in that same capacity. He is not required to grant corrections that would not affect the outcome of the case, and this board may not retry the matter or independently appraise the evidence underlying the proposed corrections on review. Id. On appeal from a commissioner’s decision, the factual findings may be disturbed only if they have no basis in the evidence, or if they omit undisputed, material facts. Webb, supra, 71. The legal conclusions drawn by the trier also must stand unless they result from an incorrect application of the law to the subordinate facts, or from an inference illegally or unreasonably drawn from them. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Webb, supra.

This board is prohibited from disturbing the trier’s factual findings in this case for several reasons. First, the claimant’s proposed corrections are based solely upon his testimony and that of Zike. We cannot say that, as a matter of law, the trier was required to credit any of those statements, and include them in his findings. Admin. Reg. § 31-301-3 states that the trial commissioner’s finding “should not contain excerpts from evidence or merely evidential facts, nor the reasons for his conclusions.” If, in fact, the trier did not find this description of the claimant’s role in the mountain biking club credible, he was not required to say so in his findings. See Ubaldo v. Cold Metal Products, 3223 CRB-6-95-11 (April 25, 1997) (trier not required to explain which parts of claimant’s testimony he found unreliable).

Second, assuming that the trier found both of the claimant’s witnesses credible, their collective testimony still portrayed a somewhat ambiguous relationship between the claimant and the biking club. The Plainville High School Teacher Handbook (Claimant’s Exhibit D) does encourage teachers to conduct and supervise field trips for students, and the claimant stated that his involvement with the mountain biking club began following the faculty meeting at which Zike received his $500 mini-grant. He also said that CD-ROM software for the biking club was purchased by combining Zike’s grant with the remainder of a “mini-grant” that the claimant had simultaneously obtained in order to buy the Spanish Club a computer and related accessories; Transcript, p. 8-9; and characterized his role during the March 25, 1995 bicycling trip as quasi-supervisory. Id., 12-13.

On the other hand, he repeatedly acknowledged that his desire to participate in the biking club was strongly premised upon his personal interest in mountain biking as a hobby. His decision to attempt the jump over the mound of dirt that caused his accident was arguably extraneous to any supervisory role that he had assumed during the trip; the claimant could just have easily kept pace with the students without attempting any difficult stunts. Further, the claimant did not start the biking club; rather, he “joined” it after Zike had obtained permission to found the organization, and had sent out notes to most of his fellow teachers asking if they “would like to join in, or at least come on the trips.” Claimant’s Exhibit A, p. 13 (March 25, 1995 Deposition of Ernest Zike). This board cannot dictate the inference that the trier should have drawn from this set of facts. A finding that the claimant was merely participating as a member of the group, rather than an organizer, was not an abuse of the trier’s discretion.

Thirdly, and most importantly, the facts asserted by the claimant in his Motion to Correct were not material to the ultimate outcome of this case. As noted above, § 31-275(16)(B)(i) excluded voluntary participation in social and recreational activities from the definition of personal injury at the time of the claimant’s mishap. There is an exception to this exception: 31-275(B)(16)(iv), which states, “Notwithstanding the provisions of clause (i) . . . ‘personal injury’ or ‘injury’ includes injuries to employees of local or regional boards of education resulting from participation in a school-sponsored activity . . . . As used in this clause, ‘school-sponsored activity’ means any activity sponsored, recognized or authorized by a board of education and includes activities conducted on or off school property and ‘participation’ means acting as a chaperone, advisor, supervisor or instructor at the request of an administrator with supervisory authority over the employee.” The relevance of the claimant’s proposed corrections hinges upon the applicability of this provision.

Setting aside the fact that the claimant has not alleged that an administrator explicitly designated him as a chaperone for the mountain biking club trip, or directed the claimant to join the group (compare O’Day v. New Britain General Hospital, 3580 CRB-6-97-4 (June 5, 1998)), § 31-275(16)(B)(iv) still cannot avail the claimant in this case. Its 1997 enactment (P.A. 97-205) and codification postdates the date of his injury by over two years. The “date of injury rule” generally governs the issue of retroactive application of a workers’ compensation statute. Badolato v. New Britain, 250 Conn. 753, 757-58 (1999). According to this rule, when legislation affects a substantive right to receive compensation, the legislature is presumed to have intended that the law shall only apply to injuries that occur after it has become effective. Id.; Gil v. Courthouse One, 239 Conn. 676, 688-89 (1997).

The claimant contends that § 31-275(16)(B)(iv) also implicates injuries that preceded its enactment, because the provision “clearly shows the legislative intent to correct an omission in the earlier amendment.” Brief, 5. We disagree. There are only two remarks in the legislative history of P.A. 97-205 that directly address the school-sponsored activity provision. See 40 S. Proc., Pt. 8, 1997 Sess., pp. 2823-24, remarks of Sen. Prague; 40 H.R. Proc., Pt. 14, 1997 Sess., p. 5179, remarks of Rep. Donovan. Neither of these comments suggests that the amendment was intended to clarify the meaning of existing statutory language in response to a controversy regarding its interpretation. Compare Green v. General Dynamics, 245 Conn. 66, 78 (1998) (shortly after disagreement arose over interpretation of § 31-310, legislature enacted § 31-310c to clarify the meaning of current law).

We note that, although Representative Donovan described the relevant portion of P.A. 97-205 as “a clarification of volunteer work within a school system,” he made no reference to a prevailing misinterpretation of the law as it was then written. Instead, he described the amendment as a “minor change,” and explained that, “If you’re asked to volunteer at a school function and you get injured there you should be covered by workers’ compensation.” 40 H.R. Proc., Pt. 14, supra. These statements implicitly acknowledge that the law did not previously include such injuries, and that a modification was necessary to protect teachers who volunteer to chaperone school activities. This is not a clear and unequivocal rebuttal of the presumption that substantive changes in the law such as this one are intended to apply prospectively. Gil, supra. Thus, we cannot hold that § 31-275(16)(B)(iv) embraces events that occurred prior to its passage, such as the injury suffered by the claimant in the instant case.

The law at the time of the claimant’s injury did not exempt teachers participating in school-sponsored activities from the exclusionary language of § 31-275(16)(B)(i). As the facts clearly establish that the claimant was injured while voluntarily participating in a mainly recreational event, and the commissioner’s findings are supported by the evidence, we must dismiss the claimant’s appeal.

The trial commissioner’s decision is hereby affirmed.

Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.

Workers’ Compensation Commission

Page last revised: January 4, 2005

Page URL: http://wcc.state.ct.us/crb/2000/3961crb.htm

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