CASE NO. 4189 CRB-5-00-2
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
FEBRUARY 22, 2001
BOROUGH OF NAUGATUCK
The claimant was represented by Kirt Westfall, Esq., Westfall & Rudnik, 59 Elm Street, New Haven, CT 06510.
The respondent was represented by Richard T. Stabnick, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.
This Petition for Review from the February 4, 2000 Finding of the Commissioner acting for the Fifth District was heard August 25, 2000 before a Compensation Review Board panel consisting of Commissioners Robin L. Wilson, Leonard S. Paoletta, and George A. Waldron.
ROBIN L. WILSON, COMMISSIONER. The claimant has petitioned for review from the February 4, 2000 Finding of the Commissioner acting for the Fifth District. In that decision, the trial commissioner concluded that the claimant failed to sustain his burden of proof regarding his claim that a January 26, 1997 automobile accident arose out of and in the course of his employment. The claimant argues on appeal that the trier erred by dismissing his claim even though he found that the claimant was in an accident while driving his police cruiser while on duty. We find no error.
We will briefly review some of the facts in this case, noting that the trial commissioner made 82 findings of fact, after conducting fourteen formal hearings during which extensive evidence was presented by both parties. On January 26, 1997, and for approximately eight years prior thereto, the claimant was employed by the Police Department of the respondent employer, Borough of Naugatuck. On January 26, 1997, at approximately 1:46 a.m., the claimant while on duty was involved in an automobile accident when his police cruiser struck a tree on Wooster Street in Naugatuck. The claimant alleged that he was searching for a reported reckless driver when he failed to negotiate a sharp curve and struck a tree. The claimant further alleged that he lost consciousness following the impact with the tree. The respondents have not contested the fact that the accident occurred while the claimant was on duty on January 26, 1997; however, the respondents argued during the formal hearings that the accident could not have occurred in the manner presented by the claimant.
In his findings, the trial commissioner noted numerous contradictions in the evidence presented by the claimant, and concluded that the claimant’s testimony regarding the accident was not persuasive. The claimant testified that while searching for the reported reckless driver, while coming up Maple Hill Road he saw a set of taillights at the crest of the hill, and that he radioed to the station that he was attempting to catch up to said vehicle. The claimant further testified that he was travelling 35 to 50 miles per hour on Wooster Street, even though said street is a very hilly and bumpy road. The claimant further testified that he was spotlighting intersecting streets and driveways, and that after spotlighting Whitney Place, he looked up, saw the tree and struck the tree. The police report indicates that the claimant reported that he was travelling at 45 to 50 miles per hour and that he attempted to take evasive action. The trial commissioner found persuasive the opinion of Sergeant McLay, who is experienced in accident reconstruction and has investigated approximately 2,500 accidents. He testified that if the accident occurred as the claimant reported, the vehicle would not have ended in the position it did with the damages it sustained, but rather would have ended up to the right of the tree.
The trial commissioner noted contradictions in the claimant’s account by comparing the claimant’s testimony during the formal hearings with a videotape film narrated by the claimant which retraces the events leading up to the accident. (See Finding ¶ 20). In addition, the trial commissioner found that the claimant was conscious at the accident scene, but feigned unconsciousness during tests administered by the paramedic. Findings ¶66-72.
Initially, we must remind the parties that our standard of review is limited. Specifically, “‘The determination of whether an injury arose out of and in the course of employment is a question of fact for the trial commissioner.’” Kolomiets v. Syncor International Corp., 51 Conn. App. 523, 526 (1999), quoting Spatafore v. Yale University, 239 Conn. 408, 418 (1996). This board may not retry the facts, as the power and duty of determining the facts rests upon the commissioner. Id. The “conclusions drawn by [the commissioner] from the facts found 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.” Kolomiets, supra, 526-27, quoting Kish v. Nursing & Home Care, Inc., 47 Conn. App. 620, 623 (1998).
The court in Kolomiets, supra, explained as follows: “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 circumstance of the accident.” Kolomiets, supra, 527-28, quoting Mazzone v. Connecticut Transit Co., 240 Conn. 788, 792-93 (1997). “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 employment; (b) at a place [he] may reasonably [have been]; and (c) while [he was] reasonably fulfilling the duties of the employment or doing something incidental to it.’” Kolomiets, supra, 528, quoting Mazzone, supra, 793.
In the instant case, the claimant argues that because the trial commissioner found that the automobile accident occurred on January 27, 1997 while the claimant was on duty, that therefore the accident must be deemed to have arisen out of and in the course of his employment. We disagree. As stated above, it is the claimant’s burden to prove that the injury arose out of the employment and occurred in the course of the employment. Where a claimant fails to meet that burden, it is not incumbent upon the respondent to disprove the claim. See Adams v. Leisure Limousine, 4054 CRB-4-99-6 (Aug. 9, 2000). Rather, where a claimant contends that an accident occurred in a specific manner, and the trial commissioner finds the claimant’s explanation to lack credibility, we cannot say that the trial commissioner must find the accident to be compensable merely because it occurred while the claimant was on duty. Certainly, in the instant case it is unclear whether the claimant met the third requirement of “in the course of” the employment provision, specifically we do not know whether the accident occurred while he was reasonably fulfilling the duties of the employment or doing something incidental to it. See Kolomiets, supra, 528.
Unlike a situation where a claimant falls from a ladder while working on a job site and is found unconscious by his co-workers, where a presumption may be made by a trial commissioner that the accident arose out of and in the course of the employment, here the circumstances of the accident are shrouded in mystery. The claimant was driving an employer’s vehicle and could have been engaged in various activities which would cause a trial commissioner to conclude that he was not reasonably fulfilling the duties of the employment or doing something incidental to it. The trial commissioner was not required to reach this issue, however, because he did not find the claimant’s testimony to be credible regarding how the accident occurred. As the claimant did not sustain his burden of proving a compensable injury, it was neither incumbent upon the respondents, nor upon the trial commissioner, to disprove the compensability of the accident.
Additionally, in deciding whether a claimant’s injury arose out of and in the course of his employment, the trial commissioner may draw a reasonable inference from the facts found. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). If said inference is supported by the evidence and not inconsistent with the law, it cannot be set aside on appeal by a reviewing tribunal, as it is a “finding of a primary fact.” Id., 539-41. Here, the trial commissioner made numerous findings of fact regarding the claimant’s motive to intentionally crash his police cruiser into the tree.
Specifically, the trial commissioner found that the claimant had previously threatened to “crash” his cruiser. Finding ¶ 27-30. Moreover, the trial commissioner made numerous findings regarding the fact that on January 24, 1997 (only two days prior to the accident) the claimant became aware that there was an internal investigation being conducted regarding the claimant’s possible violations of police procedures. Indeed, the trial commissioner found that the claimant signed an internal investigation warning form on January 24, 1997; that a videotape showed the claimant making an unauthorized entry into the administrative offices of the Police Department; that the claimant was accused of attempting to enter restricted files in the computer system; and that the claimant was found guilty of these charges and terminated from his employment. Findings ¶ 21-24. The trial commissioner also made numerous findings regarding the speed and location of the vehicle at the time of the accident, concluding that the accident did not occur as the claimant alleged, but that the claimant was driving to the left of the center line and drove straight into the tree. Findings ¶ 58-65. Thus, the inference that the claimant’s accident was intentional is amply supported by the evidence.
We recognize that a respondent has the burden of proving an affirmative defense such as wilful misconduct. Crochiere v. Board of Education, 227 Conn. 333, 356 (1993). In the case at hand, the respondents presented ample evidence to support the conclusion that the accident was intentional. We do not agree with the claimant’s argument on appeal that the trial commissioner was prevented from concluding that the claimant’s conduct was intentional on the basis that the respondents failed to specifically plead this defense during the hearing. Section 31-298 specifically provides that “no formal pleadings shall be required” during workers’ compensation hearings. See also Diogostine v. Somers Thin Strip, 3 Conn. Workers’ Comp. Rev. Op. 139, 282 CRD-5-83 (Jan. 22, 1987). Contrary to the claimant’s arguments on appeal, it is clear upon review of the evidence offered by the respondents during the formal hearings that the respondents were contending that the accident was intentional.1 Indeed, during the formal hearings the parties specifically acknowledged that the issue presented was “did he run into the tree on purpose . . .” Nov. 12, 1997 Transcript p. 114.
Our review of the findings and of the record indicates that the trial commissioner reasonably inferred that the accident was caused by the claimant’s intentional conduct, and because that inference is supported by the findings and by the evidence in the record, it must stand. See Fair, supra. Even without reaching the issue of whether the accident was intentional, it was within the trial commissioner’s discretion to dismiss the claim on the basis that the claimant did not sustain his burden of proof that the accident occurred while he was reasonably fulfilling the duties of his employment or doing something incidental to it.
The trial commissioner’s decision is affirmed.
Commissioners Leonard S. Paoletta and George A. Waldron concur.
1 Moreover, we note that in the claimant’s trial brief, he states that the respondents “attempted to prove that the Claimant’s extreme concern and distress over an alleged pending termination inspired such dire action [the accident].” (Claimant’s Post Hearing Brief at p. 2-3). The claimant further states in his trial brief that the respondents did not meet their “burden of proving that the Claimant committed such wilful and serious misconduct.” Id. BACK TO TEXT