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Bogrette & Bogrette v. Merriam Motors

CASE NO. 4011 CRB-08-99-03

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 9, 2000

ESTATE OF EDMUND J. BOGRETTE and KAREN BOGRETTE, Dependent widow of EDMUND BOGRETTE (Deceased)

CLAIMANT-APPELLEE

v.

MERRIAM MOTORS

EMPLOYER

and

MATHOG & MONIELLO

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by David A. Kelly, Esq., Montstream & May, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

The respondents were represented by Robert S. Cullen, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Vernon, CT 06066.

This Petition for Review from the March 19, 1999 Finding and Award of the Commissioner acting for the Eighth District was heard August 6, 1999 before a Compensation Review Board panel consisting of the then Commission Chairman, Jesse M. Frankl and Commissioners Stephen B. Delaney and Amado J. Vargas.

OPINION

JESSE M. FRANKL, COMMISSIONER. The respondents have petitioned for review from the March 19, 1999 Finding and Award of the Commissioner acting for the Eighth District. In that decision, the trial commissioner concluded that the decedent’s fatal injury arose out of and in the course of the employment. The trial commissioner specifically found that the decedent while driving the employer’s forklift was in a place which he reasonably was entitled to have been at the time of his death. In support of their appeal, the respondents contend that the trial commissioner erred by concluding that the injury arose out of and in the course of the employment. Specifically, the respondents argue that the decedent’s use of the employer’s forklift at the time of his accident was without permission from the employer.

A brief procedural history is in order. Initially, the trial commissioner acting for the Eighth District issued a Finding and Award on February 10, 1997. In that decision the trial commissioner concluded that the decedent sustained a fatal injury on July 14, 1995 which arose out of and in the course of his employment. Specifically, the trial commissioner found that the injury occurred while the decedent was using the respondent employer’s forklift to help a neighboring business. The trial commissioner found that the decedent’s use of the forklift was incidental to his employment and constituted a benefit to the respondent employer. The respondents appealed that decision to the Compensation Review Board (“Board”) which issued a decision on July 22, 1998. See Bogrette v. Merriam Motors, 3538 CRB-8-97-2 (July 22, 1998).

In its decision of July 22, 1998, the Board remanded the matter to the trial commissioner for a determination of whether the decedent while driving the forklift at the time of his injury, “was in a place which he reasonably was entitled to have been.” Upon remand, the trial commissioner held a formal hearing on November 12, 1998, and issued a Finding and Award on March 19, 1999 which is the subject of the instant appeal. In that decision, the trial commissioner found that the decedent was in a place which he reasonably was entitled to have been at the time of his injury.

A recap of the facts as found by the trial commissioner in his original decision are helpful to understanding the appeal in the instant case. The decedent was employed as a mechanical foreman in the repair shop of Merriam Motors (“Merriam”), and his daily duties included operating a forklift. Located across the street from Merriam was R & R Auto Parts (hereinafter “R & R”), an independent retailer which sold auto parts. The proprietor of R & R, Ron Canning, was notified of a potential delivery of a heavy compressor on July 13, 1995. On that day, Canning called the decedent and asked if he would help unload the compressor, and the decedent agreed.

On July 14, 1995, Canning crossed the street from R & R to Merriam to locate the decedent. First he met up with Claude Harris, a parts man at Merriam, and was directed to where Harris thought the decedent would be. Next, Canning met Sean Chmielewski, a service technician at Merriam, who directed Canning to the time clock where the decedent was returning from lunch. The decedent punched in and then talked to Canning. The decedent drove the forklift down Merriam’s driveway and along Route 5 to where the tractor-trailer was parked. While driving the forklift, the decedent took the compressor from the tractor-trailer and placed it in the bed of a pickup truck owned by an employee of R & R. The decedent swung the forklift around in an attempt to get a good angle to push the compressor more fully into the pickup truck. In swinging the forklift around, the forklift fell over and landed on the decedent, causing his death.

Additionally, the trial commissioner found: “While the tractor-trailer truck delivering the compressor was clearly located on the side of Route 5, a public highway, it appears that the pickup truck was located on the property of Merriam Motors.” (Finding No. 14). “The forklift tipped over in an area which is clearly under the care, custody and control of Merriam Motors. The area had been maintained by Merriam and used nearly exclusively by the customers and employees of Merriam. The record is not entirely clear whether it was on the property owned by Merriam.” (Finding No. 15). The decedent was to receive no remuneration from R & R. Management at Merriam was not asked to assist in the unloading of the compressor, and management at Merriam was unaware that the decedent had agreed to use the forklift to unload the compressor for Canning.

The trial commissioner found in his original decision that the respondents contended that the decedent did not have the authority to offer his services, including the use of the forklift, to R & R; however, the trial commissioner did not make a finding as to whether or not the decedent had such authority. Merriam and R & R did business with each other about five to ten times per day and hundreds of times over the course of a year. Most of the transactions were purchases by Merriam from R & R, and there was also significant business where R & R bought parts from Merriam. From time to time, R & R would call Merriam for advice as a favor without remuneration, and on occasion Merriam would call R & R for assistance regarding parts which were hard to find. “The management of Merriam felt that it was good business to do business with their neighbors and had done business with R & R Auto Parts and other neighboring businesses.” (Finding 26).

In its decision of July 22,1998, the Board noted that the trial commissioner found that the decedent had returned from his lunch break and punched in, and thus found that the decedent was within the period of his employment.1 Next, the Board addressed the respondents’ contention that the injury did not occur on the employer’s premises. The Board found no merit to this argument as the trial commissioner had specifically found that the injury occurred “in an area which is clearly under the care, custody and control of Merriam Motors.” (Finding No. 15) (emphasis added).

The Board next addressed the issue of whether the decedent was at a place he may reasonably have been at the time of the accident. The Board looked to Mazzone v. Connecticut Transit Co., 240 Conn. 788, 794 (1997), where the court addressed the question of whether a claimant’s injury which occurred during an unpaid lunch break on an unused bus on the employer’s premises occurred in the course of his employment. In Mazzone, the court concluded that as a matter of law, eating lunch was incidental to the claimant’s employment. The court further concluded that as a matter of law, the claimant was within the period of his employment during the unpaid lunch break on the employer’s premises. However, the court held that a question of fact existed as to “whether the claimant, by choosing to eat lunch on an out of service bus, was in a place in which he reasonably was entitled to have been.” Id. at 791.

The court in Mazzone analyzed the requirement that a claimant be “at a place [he] may reasonably [have been].” Mazzone, supra, at 796. Specifically, the court explained that “under this part of the ‘in the course of employment’ test, the claimant cannot prevail simply by proving that he was on the employer’s premises at the time of his injury.” Id. The court explained that “there is no magic in being on the premises, if the employee is injured by getting into places where he has no right to go.” Id. (quoting 1A A. Larson & L. Larson, Workmen’s Compensation (1996) § 21.21(d), p. 5-18) (emphasis added). Rather, the court explained that “the claimant, in order to be eligible for compensation, must have had a right to be on the out of service bus when his accident occurred.” Id. (citations omitted).

The Board also examined Kish v. Nursing & Home Care, Inc., 47 Conn. App. 620 (1998). In that case, the court explained that where the claimant could “reasonably be found driving her automobile in the general area of the accident during her work day, with either the express or implied permission or acquiescence of her employer, it was not improper for the commissioner to find that she was reasonably at the place where the injury occurred.” Kish, supra, at 625 (emphasis added). Accordingly, the Board held, based upon Mazzone, supra, and Kish, supra, that in order to be compensable, in the instant case the decedent at the time of the injury must have either “had a right” to be using the forklift to help R & R, or must have done so with either the express or implied permission or acquiescence of the respondent employer. The Board found that it was unclear, based upon the trial commissioner’s February 10, 1997 Finding and Award, whether the decedent at the time of injury “was in a place in which he reasonably was entitled to have been.” The Board thus remanded this issue to the trial commissioner.

Upon remand, in his March 19, 1999 Finding and Award, the trial commissioner found the following facts. The decedent had the authority to use the forklift, and the decedent had the authority to designate who would operate the forklift. The decedent regularly helped unload trucks and did not have to ask permission to use the forklift. (Finding ¶ 3) (emphasis added); see also 7/12/96 TR. at p. 12 and 16. Operating the forklift was a regular part of the decedent’s duties. The trial commissioner further found that the respondents offered no evidence to indicate that prior to the accident, the decedent was prohibited from using the forklift for the activities in which he was engaged at the time of the accident. Additionally, the trial commissioner found that the head of Merriam Motors testified, in answer to the question of whether he would have authorized the decedent to engage in said activity (his use of the forklift to help R & R), that in “looking back, I know what the answer should have been, but I don’t know what I would of (sic) done that day to be perfectly honest with you.” (Finding ¶ 6; 6/5/96 TR. at p. 60).

“The determination of whether an injury arose out of and in the course of employment is a question of fact for the commissioner.” O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 815 (1999) (quotation marks omitted). “In reviewing the factual determinations of the commissioner, the review [board’s] scope of review is limited. The review [board] may not disturb the conclusions that the commissioner draws from the facts found unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Ferrara v. Hospital of St. Raphael, 54 Conn. App. 345, 351 (1999) (citations omitted). “Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it….” Id. at 349 (citations omitted).

In the instant case, the findings of fact are supported by the evidence in the record. Although the trial commissioner did not find that the employer granted the decedent explicit permission to use the forklift, the trial commissioner was entitled to infer that the decedent had a right to use the forklift to help R & R, or that he had done so with the implied permission or acquiescence of the employer. This inference is fully supported by the findings of fact, including the findings that the decedent regularly used the forklift to unload trucks and did not have to ask permission to use the forklift.

Accordingly, the trial commissioner’s decision is affirmed.

Commissioners Stephen B. Delaney and Amado J. Vargas concur.

1 The respondents acknowledge in their brief that “(i)n reviewing the findings and reviewing the facts found there is support that the claimant was in the course of his employment in that he had checked in following lunch.” (Respondents’ Brief at p. 22). BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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