CASE NO. 4343 CRB-8-01-1
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JANUARY 10, 2002
RENEE ST. GERMAIN
BUCKINGHAM RESTAURANT & PIZZA INC.
PEERLESS INSURANCE CO.
The claimant was represented by Neil Johnson, Esq., AAAA Legal Services, P.C., 96 Webster Street, Hartford, CT 06114.
The respondents were represented by Dominick Statile, Esq., Montstream & May, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033.
This Petition for Review from the January 8, 2001 Finding and Dismissal of the Commissioner acting for the Eighth District was heard August 24, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the January 8, 2001 Finding and Dismissal of the Commissioner acting for the Eighth District. In that decision the trial commissioner found that the claimant’s injury was caused by his intoxication, and thus denied benefits pursuant to § 31-284(a) C.G.S. In support of his appeal, the claimant contends that in order to prove the affirmative defense of wilful and serious misconduct, the respondents were required to prove that the claimant was aware that his intoxication would cause a serious injury to occur. The claimant also argues that the employer tacitly consented to the claimant’s alcohol use, and thus his intoxication did not constitute wilful and serious misconduct. We find no error.
In the instant case, the trial commissioner found that on April 21, 1999, the claimant, who worked as a chef for the respondent employer, fell while carrying a vat of hot oil across the kitchen floor. The trial commissioner found the following additional relevant facts. The claimant had an alcohol problem and was drinking on the day of the injury which occurred at approximately 4:00 P.M. The claimant was immediately transported to the hospital, and blood drawn from the claimant at approximately 5:30 P.M. indicated a blood alcohol level of .35. Dr. O’Brien, a state toxicologist, testified that based on the claimant’s .35 blood alcohol level taken at 5:30 P.M. on the date of injury, the “claimant’s judgment would definitely have been impaired and his awareness of risk factors in his work would be ignored or not acknowledged, i.e., carrying a pail of hot oil across a wet, slippery kitchen floor and the dangers inherent therein.” Findings, ¶ 16.
The trial commissioner concluded that the claimant was intoxicated while at work on April 21, 1999, and that his .35 alcohol level impaired his judgment as a chef working in the employer’s kitchen, thereby causing the claimant to sustain injuries while carrying a vat of hot oil across the wet kitchen floor. Moreover, the trier concluded that the “claimant’s blood alcohol level of .35 as tested on 4/21/99 was the primary causative factor leading to his poor judgment and ultimately causing his personal injuries.” Findings, ¶ F.
It is well settled that, “the power and duty of determining the facts rests on the commissioner, the trier of facts . . . . The conclusions drawn by him 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.” Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). The factual findings themselves cannot be changed unless they are unsupported by the evidence in the record, or unless they omit undisputed material facts. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 71, 1859 CRB-5-93-9 (May 12, 1995). All questions of evidentiary credibility, such as the reliability of a particular witness’ testimony, are solely for the trial commissioner to decide. Kish v. Nursing Home & Care, Inc., 47 Conn. App. 620, 627 (1998). Moreover, where a Motion to Correct is not filed, this board is limited to the trial commissioner’s factual findings on review. Fox-Gould v. Brooks Pharmacy, 4215 CRB-2-00-3 (May 23, 2001).
The respondents bear the burden of proof when raising the affirmative defense of wilful and serious misconduct or intoxication. Liptak v. State, 176 Conn. 320 (1978); Federchuck v. UTC/Pratt & Whitney, 15 Conn. Workers’ Comp Rev. Op. 476, 479, 2298 CRB-2-95-2 (Sept. 16, 1996). In order for the intoxication exclusion to apply, the respondents need not prove that intoxication was the sole proximate cause of the injury, but only that the intoxication was a substantial factor in causing the accident. Paternostro v. Arborio Corp., 3659 CRB-6-97-8 (Sept. 8, 1998), aff’d, 56 Conn. App. 215 (1999), cert. denied, 252 Conn. 928 (2000). In the instant case, the trier concluded that the respondents met this burden by providing evidence that his intoxication caused his injury, including the medical opinion of Dr. O’Brien that the claimant’s .35 blood alcohol level impaired the claimant’s judgment and impaired his awareness of the risk factors of carrying a vat of hot oil across a slippery fall. As the trial commissioner’s findings of fact and conclusion are amply supported by the evidence in the record, the decision may not be disturbed. Fair, supra.
In his appeal, the claimant argues that in order to prove the affirmative defense of wilful and serious misconduct, the respondents were required to prove that the claimant was aware that his intoxication would cause a serious injury to occur. The claimant also argues that the employer tacitly consented to the claimant’s alcohol use, and thus his intoxication did not constitute wilful and serious misconduct. As to the first argument, we remind the parties that § 31-284(a) provides that an injury is not compensable when it “has been caused by the wilful and serious misconduct of the injured employee or by his intoxication.” Sec. 31-284(a) (emphasis added). Additionally, § 31-275(1)(C) provides that “in the case of an accidental injury, a disability or death due to the use of alcohol or narcotic drugs shall not be construed to be a compensable injury.” Thus, the wilful misconduct exclusion is separate from the intoxication exclusion, and therefore an injury caused by intoxication does not also have to be wilful and serious misconduct. Rather, the injury must either be caused by the intoxication or it must constitute wilful and serious misconduct.1
Here, as explained above, the trier specifically found the claimant’s injury was caused by his intoxication, and as this conclusion is fully supported by the record, it must stand. Compare Corcoran v. Corcoran Moving and Storage Inc. 9 Conn. Workers’ Comp. Rev. Op. 237, 1030 CRD-5-90-6 (Oct. 31, 1991), where the claimant was awarded compensation despite having a blood alcohol level of .215% at the time of his accident, on the basis that the claimant’s intoxication was not the cause of his car accident, but rather swerving to avoid a deer was the cause.
In support of his argument that the employer tacitly condoned the claimant’s drinking, the claimant cites Fiarenzo v. Richards & Co., 93 Conn. 581 (1919) for the proposition that an employee’s violation of an unenforced rule does not constitute wilful misconduct. As explained above, however, the respondents were not required to prove that the claimant’s conduct was wilful and serious, rather, they were only required to prove that the injury was caused by the intoxication. Moreover, we note that in the instant case the trial commissioner specifically found that the employer “did not allow or condone alcoholic consumption by its employees during working hours.” Findings, ¶ B. Furthermore, the trial commissioner found that the owner of the respondent employer “reasonably policed his no drinking by employees policy during the claimant’s employment.” Findings, ¶ C.
The trial commissioner’s decision is hereby affirmed.
Commissioners George A. Waldron and Ernie R. Walker concur.
1 A different set of circumstances was presented in Paternostro v. Arborio Corp., 3659 CRB-6-97-8 (Sept. 8, 1998), aff’d, 56 Conn. App. 215 (1999), cert. denied, 252 Conn. 928 (2000), where the trial commissioner found that the decedent’s intoxication together with his attempt to cross a highway constituted wilful and serious misconduct. In that case, because the claimant’s conduct which caused his death was found to be wilful and serious misconduct, it “was not necessary, therefore, to decide whether the decedent’s intoxication caused his death for purposes of § 31-275(1)(C).” Paternostro, 56 Conn. App. at 218. BACK TO TEXT