CASE NO. 4609 CRB-1-03-1
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
DECEMBER 17, 2003
STATE OF CONNECTICUT/DEPARTMENT OF CORRECTION
GAB ROBINS NORTH AMERICA, INC.
The claimant was represented by Mark S. Loman, Esq., Law Office of Mark S. Loman, 484 Main Street, Suite 24-B, Middletown, CT 06457.
The respondent was represented by the office of the Attorney General, Nancy Sussman, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This petition for review from the January 3, 2003 Finding and Dismissal of the Commissioner in the First District was heard on June 20, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Howard H. Belkin.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant, Edward Brown, has petitioned for review from the January 3, 2003 Finding and Dismissal of the Commissioner acting for the First District. We find no error and affirm the trial commissioner’s Finding and Dismissal.
The pertinent facts are as follows. The claimant was employed by the Department of Correction as a Community Enforcement Officer at the respondent’s central office in Wethersfield, Connecticut. On April 20, 2001, the date of the claimant’s injury, he was attending an in-service training at respondent’s Carl Robinson Correctional Institution in Enfield, Connecticut. After being released from work, he attended a charity event that his employer allowed in their parking lot. The respondent had notified its employees that the Special Olympics event was taking place on that date; however, participation was voluntary and not compulsory. The Special Olympics charged the claimant $5.00 to shoot basketballs as part of the charitable event. He paid the $5.00 and subsequently injured his right knee while taking his shot at the hoop. It is the claimant’s contention that his knee injury occurred in the course of his employment.
The instant matter comes before us as a result of the trial commissioner’s January 3, 2003 Finding and Dismissal. The commissioner concluded and found that the claimant’s injury did not arise out of and during the course of his employment as he did not suffer a personal injury as defined by § 31-275(16)(B)(i) C.G.S. Subsequently, the claimant filed a petition for review with the Compensation Review Board as well as a Motion for Articulation with the trial commissioner. On January 16, 2003 the trial commissioner denied the claimant’s Motion for Articulation.
The claimant brings two issues before this board. Firstly, he claims that although the trial commissioner found the claimant’s participation in the event was voluntary, the commissioner did not make a finding that the major purpose of the event was either social or recreational as § 31-275(16)(B)(i) requires. The claimant argues that the major purpose of the event was charitable, and therefore does not fall within the § 31-275(16)(B)(i) exceptions to the definition of personal injury. Secondly, the claimant argues that the trial commissioner erred in not granting his Motion for Articulation. The claimant asserted that without knowing the exact factual basis for the commissioner’s conclusion, he is unable to determine whether there was an error in the application of facts underlying that conclusion.
“An articulation may be necessary where the trial court fails completely to state any basis for its decision; or where the basis, although stated, is unclear.” (citations omitted). State v. Wilson, 199 Conn. 417, 434 (1986). A Motion for Articulation should be granted when the basis of the commissioner’s conclusion is unclear. Chemero v. Westreco, Inc., 10 Conn. Workers’ Comp. Rev. Op. 142, 1081 CRD-7-90-7 (June 29, 1992). In claimant’s January 15, 2003 Motion for Articulation he asked for the commissioner’s articulation of the following conclusion: “[T]he claimant testified that he had completed his work responsibilities for the day and had checked out but was still on the premises of the Respondent at the Correctional Center.” Findings, ¶ A. In the finding, the commissioner states that he based this conclusion on the claimant’s testimony. Therefore, the basis for the conclusion is clear and the Motion for Articulation was properly denied. If the claimant wanted to dispute the factual accuracy of this finding, he could have filed a Motion to Correct under Admin. Reg. § 31-301-4.
The trial commissioner in this case dismissed the claim finding that the injury in the case was not a “personal injury” pursuant to § 31-275(16)(B)(i) C. G. S. Findings, ¶ A. Section 31-275(16)(B)(i) provides:
(B) “Personal injury” or “injury” shall not be construed to include:
(i) An 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.
In the instant case the material facts were not in dispute. The parties filed a Stipulation of Facts dated August 28, 2002. Joint Exhibit 1. The trial commissioner has incorporated the Stipulation of Facts into his findings. Findings ¶¶ 1(a) - 1(cc). The claimant testified that he had left the training on the date of his injury, but was still on the respondent’s premises at the Correctional Center. The trial commissioner found that claimant was on his own as he paid a charitable fee to participate in shooting hoops and injured his right knee during that activity. The trier found that the activity which the claimant participated in was voluntary, making § 31-275(16)(B)(i) applicable. Findings, ¶ A. For these reasons the trial commissioner dismissed the claimant’s claim against the respondent.
The claimant has the burden of proving compensability of his injury. Anderton v. Waste Away, LLC, 4435 CRB-4-01-9 (August 12, 2002). Anderton was a case in which a claimant made a claim for an injury he incurred while participating in a basketball game at the request of his employer. In Anderton, the board stated; “we must determine whether there is sufficient evidence in the record to support a finding that the claimant’s participation in the basketball game of September 3, 1999 was not voluntary, and/or that the major purpose of the game was not recreational or social.”
The parties have stipulated the claimant’s participation in the charitable event was voluntary and not compulsory. Findings, ¶ 1(g). The issue in this case under § 31-275(16)(B)(i) would be whether this charitable event could be included under the “but not limited to” definition of activities whose major purpose are recreational or social. However, in this case we do not need to make this determination.
A claimant must prove his or her injury is casually connected to their employment under § 31-275. The claimant has the burden of proof to establish this causal connection. Spatafore v. Yale University, 239 Conn. 408, 416, 684 A.2d 1155 (1996). The § 31-275(16)(B)(i) definition of what shall not be construed to be a personal injury merely disallows injuries resulting from voluntary participation in activities which are mostly social or recreational, but are already causally connected with their employment under § 31-275(16)(A) and arise out of and in the course of their employment under § 31-275(1).
Arising out of employment relates to the time, place and circumstances of the injury. Spatafore, supra, 416. “Proof that the injury occurred in the course of employment means that the injury must occur (a) within the period of the employment; (b) at the place the employee may reasonably be; and (c) while the employee is reasonably fulfilling the duties of the employment or doing something incidental to it.” Spatafore, supra, 416.
Assuming arguendo, that the claimant was within his employment period1 and at a place that he could reasonably be; the claimant must still prove that his participation in the fundraiser was incidental to his employment. The parties stipulated that the claimant’s participation in the charitable event was voluntary and not compulsory. Findings, ¶ 1(g). The parties agreed that the respondent, itself, was not holding the charitable event; they were merely permitting the Special Olympics to hold the event in their parking lot. Findings, ¶ 1(d). The parties further stipulated that Special Olympics was the entity that charged the claimant the fee to shoot the basketballs. Findings, ¶ 1(k).
“If an activity is regularly engaged in on the employer’s premises within the period of employment, with the employer’s approval or acquiescence, an injury occurring under those conditions shall be found compensable.” McNamara v. Hamden, 176 Conn. 547, 556 (1979). In the McNamara case the employees used a ping-pong table on the employer’s premises on a daily basis, although not during their working hours. The McNamara court found that the employer had in fact acquiesced to the employees regularly playing ping-pong on their premises. Therefore, when an employee was injured while playing ping-pong at the work place, the court found that the injury was compensable.2 However, the McNamara court further held that activities that occur only seldom or once require proof of an employment connection, such as an employer benefit. McNamara v. Hamden, supra, 554, footnote 1. The McNamara court cited Smith v. Seamless Rubber Co., 111 Conn. 365 (1930) as an example of this premise. In Smith, the employee was injured from a small pox vaccination that was given to her at her company’s facility. The vaccination was offered by the employer in order to assist the board of health in its effort to prevent a small pox epidemic. The court stated in relevant part; “if the act being performed is for the exclusive benefit of the employee so that it is a personal privilege or is one which the employer permits the employee to undertake for some other person or some cause apart from its own interests, an injury arising out of it will not be compensable.” Id., 368.
The fact pattern in Smith is analogous to the instant case. The claimant in this case was partaking in an event that did not regularly occur on the respondent’s premises. The event benefited the Special Olympics, not his employer. Furthermore, the Special Olympics held the event, not the employer. Findings, ¶1(d). The claimant’s charitable contributions are certainly laudable; however, when his injury occurred he was not doing anything incidental to his employment as to bring him under the Worker’s Compensation Act. These facts were stipulated, so as a matter of law the injury did not arise out of and in the course of the claimant’s employment. Therefore, his injuries are not compensable.
We therefore affirm the January 3, 2003 Finding and Dismissal of the Commissioner acting for the first district.
Commissioners James J. Metro and Howard H. Belkin concur.
1 The parties’ stipulation was silent as to whether the claimant was within his employment period. BACK TO TEXT
2 It should be noted to the reader that the court in McNamara found the ping-pong activity at issue in the case was within the course of employment. However, § 31-275(16)(B)(i) was later passed in 1993 and under this statute the activity would likely not be a “personal injury.” However, the reasoning that the McNamara court used is still upheld. BACK TO TEXT