CASE NO. 4761 CRB-5-03-12
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
OCTOBER 8, 2004
MICHAEL G. BLAKESLEE, JR.
PLATT BROTHERS & COMPANY
WAUSAU INSURANCE COMPANY
The claimant was represented by James Brennan, Esq., Brennan & Isaac, 37 Leavenworth Street, Waterbury, CT 06720-0070.
The respondents were represented by Jennifer A. Hock, Esq., McGann, Bartlett & Brown, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.
This Petition for Review from the December 4, 2003 Finding and Dismissal of the Commissioner acting for the Fifth District was heard May 28, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White, Jr. and Charles F. Senich.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant, Michael G. Blakeslee, Jr., has appealed from the December 4, 2003 Finding and Dismissal of the Commissioner acting for the Fifth District. We affirm the decision of the trial commissioner.
The pertinent facts are as follows. On February 13, 2002 the claimant suffered a seizure at work which was not a compensable injury. The seizure caused the claimant to fall to the floor near a large steel scale. The seizure rendered the claimant unconscious. When the seizure subsided the claimant regained consciousness and began flailing around swinging his arms and kicking his legs. Mike Noel, a coworker who witnessed the incident, called over other coworkers. In an attempt to prevent the claimant from injuring himself, the claimant’s coworkers restrained him. As a result of the physical restraint the claimant suffered dislocations of both of his shoulders which ultimately resulted in shoulder surgeries.
The issue at the formal hearings on this matter was whether or not the claimant’s injuries arose out of his employment with the respondent-employer. The trial commissioner found, “the chain of causation which resulted in the claimant’s shoulder injuries was set in motion by the claimant’s grand mal seizure.” Findings, ¶A. The trial commissioner determined the claimant’s seizure did not arise out of the claimant’s employment. He found that the claimant’s injuries were caused by the intervention of coworkers in an attempt to assist the claimant. For these reasons, the trial commissioner dismissed the claim.
The claimant has appealed this dismissal. The claimant alleged the trial commissioner erred in his determination that the claimant’s injuries did not arise out of the course of claimant’s employment. The law governing eligibility for workers’ compensation benefits involves a two-part test in which the claimant has the burden of proving that an injury arose out of the employment and occurred in the course of the employment. Mazzone v. Connecticut Transit Company, 240 Conn. 788, 792, 793 (1997).
Here the fact that the injury arose in the course of the employment appears not to be questioned. “Proof that an injury occurred in the course of employment means that the injury must occur (a) within the period of 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 v. Yale University, 239 Conn. 408, 416 (1996). The claimant’s seizure occurred during work hours, while at work, fulfilling his work duties. Findings ¶¶ 1, 3.
In this case the arising out of the employment prong of the two-part test is at issue. Arising out of the employment relates to the origin and cause of the injury. Mazzone, supra. “The essential connecting link of direct causal connection between the personal injury and the employment must be established before the act becomes operative. The personal injury must be the result of the employment and flow from it as the inducing proximate cause. The rational mind must be able to trace resultant personal injury to a proximate cause set in motion by the employment and not by some other agency, or there can be no recovery.” Fair v. People’s Savings Bank, 207 Conn. 535, 545, 546 (1988).
Although Nolan v. Brennan Concrete Corp., 1362 CRD-7-91-12 (November 4, 1993) involved a workplace assault as opposed to a coworker’s application of first aid, we still look at the reason the initial injury occurred in order to determine whether any resulting injuries arose out of the employment. Here, there is no dispute that the claimant experienced a seizure that was not the result of any work related activity. Findings ¶¶ 1, 2, A, B; Appellant’s March 23, 2004 Brief, p. 1. The reason for the workplace restraint was an attempt to assist the claimant with his non-work related injury. The original injury was not compensable, therefore, the resulting injury from the application of first aid by a coworker is not compensable either.
The claimant contends that because the actual injury resulted from the restraint, as opposed to the seizure itself, the resulting shoulder injury should be compensable. The claimant argues that, “an injury received in the course of the employment does not cease to be one arising out of the employment merely because some infirmity due to disease has originally set in action the final and proximate cause of the injury.” Savage v. St. Aeden’s Church, 122 Conn. 343, 346, 347 (1937). However, Savage deals with a case where an employee was found dead from a fracture to his skull after falling from a ladder. The cause of the fall was unknown, however, the employee had previously suffered from a heart murmur. The Savage court explained the cause of the plaintiff’s injury was the fall and that claimant’s prior heart problems should not be considered. Id., 347. The court in Savage distinguished the case from that in which a fireman standing in the door of his engine house was pushed by a non-coworker which resulted in his fall on a concrete floor. Citing Porter v. New Haven, 105 Conn. 394 (1926). In Porter, the court found that the injury did not arise out of the employment because it was not the result of the employment or any condition that existed in connection with that employment. Id., 397. We find the instant case more similar to the injury in Porter, Id., than in Savage, supra. The claimant’s injury here flowed from the seizure which could have occurred on a public street subjecting him to the same restraint from a stranger who was attempting to apply first aid to him.
The claimant also asserts that an injury inflicted by a co-employee is compensable, unless the injured employee engages in unauthorized horseplay or is the result of an intentional assault. Claimant’s March 23, 2004 Brief, p. 3. However, the claimant misses the fact that there is a prerequisite requirement for compensability that the cause of the injury arose out of the employment. The conditions of the employment must still be the legal cause of the injury. Stulginski v. The Waterbury Rolling Mills Co., 124 Conn. 355 (1938); Setterstrom v. C.R. Klewin, Inc., 3643 CRB-2-97-7 (August 12, 1998). Again, here the claimant’s seizure caused the need for the first aid which caused the injury. There was no element of the claimant’s employment involved.
Further, if an injury occurs “out of an act or omission for the exclusive benefit of the employee” it does not arise out of the course of the employment. Larke v. Hancock Mutual Life Ins., 90 Conn. 303, 309 (1916); See also Lemelin v. New Britain General Hospital, 3978 CRB-6-99-2 (February 1, 2000). Here, the first aid applied was for the claimant’s exclusive benefit. Although the outcome of the first aid was less than desirable, that does not take away from the fact that the first aid was applied to assist the claimant personally.
For these reasons, we affirm the December 4, 2003 Finding and Dismissal of the Commissioner acting for the Fifth District.
Commissioners A. Thomas White, Jr. and Charles F. Senich concur.