CASE NO. 5109 CRB-7-06-7
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JULY 17, 2007
HAYNES CONSTRUCTION COMPANY
AIG CLAIM SERVICES, INC.
The claimant was represented by Norman J. Voog, Esq., Law Offices of Norman J. Voog, 90 Grove Street, Suite 104, P.O. Box 605, Ridgefield, CT 06877.
The respondents were represented by Richard Aiken, Jr., Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard Glastonbury, CT 06033.
This Petition for Review1 from the June 21, 2006 Finding & Dismissal by the Commissioner acting for the Seventh District was heard March 30, 2007 before a Compensation Review Board panel consisting of the Commission Chairman, John A. Mastropietro and Commissioners Amado J. Vargas and Nancy E. Salerno.
JOHN A. MASTROPIETRO, CHAIRMAN. The Supreme Court has delineated a clear test as to whether this Commission can award benefits for an injury. “To be entitled to workmen’s compensation, the claimant had the burden of proving that his injuries were sustained in the course of his employment and that they arose out of that employment.” Hills v. Servicemaster of Connecticut River Valley, Inc., 155 Conn. 214, 216 (1967). The claimant in the present matter was injured crossing a public street in Stamford, and asserts he met the burden of proving his injury was incurred in the course of employment. The trial commissioner did not believe the claimant met his burden of proof on this issue. Upon review, we conclude this dispute substantially centers on the claimant’s credibility, and we cannot reverse the trial commissioner’s judgment on this issue. Therefore, we dismiss this appeal.
The trial commissioner in this case was presented with greatly divergent explanations of what the claimant was doing in downtown Stamford on the evening of November 12, 2004 and why he was doing it. Both sides presented extensive evidence through a number of witnesses in a formal hearing that commenced on June 23, 2005 and continued to sessions on September 28, 2005, September 29, 2005, and November 22, 2005. The hearing transcripts from the formal hearings total over 800 pages. The trial commissioner also considered two exhibits submitted by the claimant and 14 exhibits submitted by the respondents. There is agreement that the claimant was employed as a project manager for the respondent on that date and he was struck by a car and injured at approximately 8:20 p.m. crossing the street. There is also agreement that early in the day Mr. Mleczko was alerted that the construction project he was working on, a new Marriott Hotel, had a leak.
After considering the evidence, the commissioner found that the claimant and the property owner’s construction manager, John Lindell, went to Room 801 of the hotel to inspect the leak. Findings, ¶ 5. The claimant called John Martin, a representative of Aspetuck Roofing (the project’s roofing contractor) and directed him to have someone from his firm attend to the leak. Findings, ¶ 6. The claimant said Mr. Martin advised him he was two hours away from Stamford, that he would see what he could do about getting to the site, and would call the claimant back Findings, ¶ 7. The claimant advised Sheldon Moir, Superintendent for Haynes Construction, that the roofer might not be able to come to Stamford until Monday. Findings, ¶ 8. In response, the claimant, Mr. Moir and Mr. Lindell went to the roof of the Marriott Hotel to identify the leak’s source. Findings, ¶ 9. The trial commissioner obtained conflicting testimony as to what transpired when the roof was inspected. Mr. Moir testified the leak was identified and remedied. Findings, ¶ 10. He further testified it was determined that Mr. Martin would not be coming to work on the roof that evening. Findings, ¶ 11. Mr. Moir also testified that had the roofer been coming to Stamford he would have stayed to assist him, which the claimant testified had been Moir’s practice on prior leaks. Findings, ¶ 12-13.
John Martin also testified at the hearing that he spoke on two occasions to the claimant on November 12, 2004. He testified that the second call occurred at 4:25 p.m. at which time he said he had been advised the leak was fixed and that everyone—including the claimant—understood he would not be going to Stamford that evening. Findings, ¶¶ 14-18.
Following the second call to Mr. Martin, the claimant left the job site at the Marriott Hotel to eat at the Telluride Restaurant. He then returned to his office and did not return to the location of the leak. Findings, ¶ 19. After spending time at his office the claimant then left the office to meet a former employee of the respondent at the SBC (Southport Brewing Company) restaurant at approximately 7:20 p.m. Findings, ¶ 20. That dining companion, Darryl Meierhoff, testified that at 8:15 p.m. the claimant said he was leaving to see if the roofer had arrived and “shut down the office.” Findings, ¶ 21. The claimant was injured shortly thereafter. Findings, ¶ 22.
Based on this evidence the trial commissioner concluded the weight of the evidence was that the roofer was not coming to Stamford on the evening of November 12, 2004, that fact had been communicated to the claimant and “there was no reason for the claimant to remain on the job.” Findings, ¶ A. Since he had left his workplace to obtain something to eat, the claimant was “not at a place where he is expected to be” when he was injured in a public street. Findings, ¶¶ B, C and D. He dismissed the claim.
The claimant did not file a Motion to Correct the facts found by the trial commissioner. This limits our review to the existing factual findings, as per Kelley v. Venezia Transport Services, 4184 CRB-2-00-2 (March 8, 2001). In his reasons for appeal, however, the claimant argues the trial commissioner’s legal conclusions were not supported by the findings of fact or the evidence presented at the hearing. Since “appellate review requires every reasonable presumption in favor of the action. . . .” Daniels v. Alander, 268 Conn. 320, 330 (2004), we must ascertain if the trial commissioner’s factual findings were clearly erroneous.2
The trial commissioner clearly credited the testimony of John Martin and Sheldon Moir that there was no business purpose for the claimant to remain in downtown Stamford on the evening of November 12, 2004. While the claimant and Mr. Meierhoff testified that the claimant was still trying to ascertain the roofer’s whereabouts that evening, the trial commissioner specifically did not credit this testimony, since Finding, ¶ A is that the evidence established the claimant knew the roofer was not going to be in Stamford that evening. We cannot disturb the conclusion of a trial commissioner in resolving such a factual dispute. “There are few principles of jurisprudence more fundamental than the principle that a trier of fact must be the one party responsible for finding the truth amidst conflicting claims and evidence.” O’Connor v. Med-Center Home Healthcare, Inc., 4954 CRB-5-05-6 (July 17, 2006).
The claimant’s brief argues at length that this injury should be deemed an “on premises” injury similar to the compensable injury in Mazzone v. Connecticut Transit Co., 240 Conn. 788 (1997). Claimant’s Brief, pp. 8-12. We reject this argument. Simply put, unlike Mazzone, the locus of this accident was in a public street. The claimant’s definition of “premises” was not accepted by the trial commissioner, and would constitute a workplace virtually unconstrained by geographic or chronological boundaries.3
A second argument advanced by the claimant acknowledged that this was an off-premises injury, but the trial commissioner erred in not making specific findings whether the claimant was “reasonably fulfilling the duties of employment.” Claimant’s Brief, pp. 13-15. This argument is unpersuasive as it is inconsistent with the claimant’s burden of proof as defined in Hills, supra. We can infer from Findings, ¶¶ A and B that the trial commissioner concluded that at the time of the accident the claimant was engaged in activities which were unrelated to his employment i.e., returning from an off-premises meal.4 We also note the trial commissioner specifically did find the claimant was in a place he was not expected to be at the time of the accident. Findings, ¶ D. As noted, the respondents offered substantial evidence contesting the claimant’s argument he had a business purpose to be in Stamford at the time of the accident. This board cannot reverse a trial commissioner’s factual determination as to whether an activity is social in nature or part of one’s duties of employment. Anderton v. Wasteaway Services, LLC, 91 Conn. App. 345, 349 (2005).5
This case boils down to one point. It was the claimant’s burden to prove to the trial commissioner that when he left the office to go to the SBC restaurant on the evening of November 12, 2004 that the journey would mutually benefit both his employer and the claimant. Spatafore v. Yale University, 239 Conn. 408 (1996). The claimant was unable to satisfy this burden of proof because the trial commissioner credited the testimony of other witnesses. We must defer to the judgment of the trial commissioner, affirm the Finding and Dismissal and dismiss this appeal.6
Commissioners Amado J. Vargas and Nancy E. Salerno concur in this opinion.
1 We note that a postponement was granted during the pendency of this appeal. BACK TO TEXT
2 Claimant’s counsel rests much of his argument on the representation the claimant returned to the Marriott Hotel to find the roofer after leaving the SBC restaurant and was between job sites at the time of injury. Claimant’s Brief, pp. 7, 9, 12 and 15. This would create a legal question as to whether the claimant “was in a place where he was reasonably expected to be” when and where he was injured. However, the trial commissioner did not find this fact and since the claimant did not submit a Motion to Correct, we must conclude on appellate review that we must give the present factual findings, which do not find this fact, conclusive effect. See Corcoran v. Amgraph Packaging, Inc., 4819 CRB-2-04-6 and 4948 CRB-2-05-5 (July 26, 2006). BACK TO TEXT
3 We distinguish the case from other cases where we have found injuries in public streets compensable i.e. Kuharski v. Bristol Brass Corporation, 132 Conn. 563 (1946); Russo v. Stop & Shop Companies, Inc., 4002 CRB-6-99-3 (March 22, 2000); Cimmino v. Hospital of St. Raphael, 4230 CRB-3-00-5 (September 13, 2001) and Meeker v. Knights of Columbus, 5115 CRB-3-06-7 (July 3, 2007). In these cases the claimant convinced the trier of fact they were injured in the course of their employment. In Davis v. State/University of Connecticut, 3822 CRB-2-98-5 (August 17, 1999), we remanded the matter based on the theory an entire college campus constitutes a single “premises.” More importantly in all these cases, the claimant was injured while traveling between two premises controlled by the employer-respondent. The claimant was injured here leaving an off-premises restaurant. BACK TO TEXT
4 Finding, ¶ C in the Finding and Dismissal specifically cited our precedent in Rampulla v. Fox Hill Nursing & Rehabilitation Center, 4696 CRB-1-03-7 (June 23, 2004) for the proposition that injuries sustained between the workplace and an off-premises restaurant are generally not compensable. BACK TO TEXT
5 Respondents’ Brief point to substantial evidence on the record inconsistent with the claimant’s representation his dinner at SBC restaurant was related to the Marriott project, thus conferring a benefit to his employer. Claimant’s Brief, p. 11. Specifically noted is evidence that the claimant often went out to dinner in Stamford after work on Friday nights (Respondent’s Exhibit 1, June 23, 2005 Transcript, p. 182), that Mr. Meierhoff had been terminated by the respondent and was not involved with the Marriott project on the date of the accident (September 28, 2005 Transcript, p. 166, September 29, 2005 Transcript, pp. 193-194 and 210) and that the claimant had consumed alcoholic beverages on the evening of the injury despite company policy proscribing such activity during work hours (Respondent’s Exhibits 2, 7 and 10; June 23, 2005 Transcript, pp. 154-158; September 23, 1995 Transcript, p. 197-199; September 29, 2005 Transcript, pp. 16-92 and November 22, 2005 Transcript, pp. 66-70). “Where the veracity of a witness’ factual representations is at issue, the trier’s credibility assessment is virtually inviolable on appeal.” Canevari v. C.R. Gibson Co., 4231 CRB-7-00-5 (May 14, 2001). BACK TO TEXT
6 Respondents have filed a Motion to Dismiss on the grounds that the claimant’s Reasons for Appeal were untimely. We do not find any prejudice to the respondents from this delay and deny this motion. Roussel v. Village Gate of Farmington, 4918 CRB-6-05-2 (February 28, 2006). BACK TO TEXT