State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Houlihan v. City of Waterbury Police Department

CASE NO. 5141 CRB-5-06-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 26, 2007

BRIAN HOULIHAN

CLAIMANT-APPELLEE

v.

CITY OF WATERBURY POLICE DEPARTMENT

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

and

BERKLEY ADMINISTRATORS

ADMINISTRATOR

APPEARANCES:

The claimant was represented by Andrew J. Morrissey, Esq., Morrissey, Morrissey & Mooney, LLC, 203 Church Street, P.O. Box 31, Naugatuck, CT 06770.

The respondent was represented by Robert J. Enright, Esq., McGann, Bartlett & Brown, LLC, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

This Petition for Review from the September 18, 2006 Finding and Award of the Commissioner acting for the Fifth District was heard March 30, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Scott A. Barton and Nancy E. Salerno.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. This appeal deals with a situation that the respondent believes is an issue of first impression: has a compensable injury occurred when a police office suffers an injury traveling between his home and a medical appointment to treat an earlier compensable injury? The trial commissioner in this case concluded this injury was covered by Chapter 568 and was a compensable injury. We believe the determination of whether an injury occurs in the course of one’s employment is invariably a fact based exercise decided on a case by case basis. The legal and factual scenario presented in this case supports the Finding and Award of the trial commissioner.

The parties agree that the claimant, a Waterbury police officer, was injured in a motor vehicle accident near his home at 3:47 p.m. on June 11, 2004. The claimant had suffered a previous compensable wrist injury on October 15, 2003 for which a voluntary agreement had been approved. He had two surgeries performed on his wrist and had returned to work following the second surgery. His treating physician had authorized twelve physical therapy sessions for his wrist, and the claimant had been attending these therapy sessions on a regular basis commencing May 20, 2004. The claimant had the ability to choose the time of his sessions, but the trial commissioner found the respondent’s claim administrator directed the claimant to treat with Score Rehabilitation on Watertown Avenue in Waterbury.1 Score Rehabilitation had a policy of walk-in appointments, but the claimant’s date book indicated he had scheduled his treatments at 4:00 p.m. on Fridays, having attended sessions there at that time on May 21, May 28, and June 4.

On the day in question, the claimant called in sick from his shift to accommodate the schedules of his wife (a night shift health care worker) and his school age child. Having addressed his domestic obligations, he left his home in Wolcott at 3:40 p.m. and traveled via a direct route so as to reach his therapist on or about 4:00 p.m. He was injured in a collision en route to this therapy session.

Based on these facts the trial commissioner concluded that the claimant’s injuries occurred while he was traveling to an approved physical therapy appointment, which was reasonable and necessary medical treatment and that this therapy benefited both the claimant and the respondent. She also found that had the claimant failed to obtain reasonable and necessary medical treatment he faced the threat of sanction from the respondent. Accordingly, she concluded the June 11, 2004 accident was a compensable injury and that the respondent was liable for the indemnity and medical benefits attributed to this event.

The respondent filed a Motion to Correct the Finding and Award. The gravamen of the motion was that there was no evidence that the physical therapy session benefited the respondent. The trial commissioner denied the motion and this appeal commenced.

The respondent focused their appeal on policy concerns rather than legal precedents. In considering this appeal we must address the policy arguments presented by the respondent. It is our role as an appellate panel to confirm that trial commissioners are consistently applying the policies delineated in our statutes and precedents in their decisions. For a number of reasons we believe the trial commissioner reached an appropriate decision given the facts and law governing this injury.

Our inquiry begins by considering what the claimant’s purpose was when he left his home that afternoon. There is no dispute that he left for authorized treatment for a compensable injury and that this treatment was “reasonable and necessary” care within the scope of our precedent. Indeed, pursuant to statute (§ 31-294d(a)(1) C.G.S.) the employer was obligated to provide such services to the claimant. There has been significant precedent that additional injuries incurred in the course of treating for a compensable injury are themselves compensable injuries under our statutes.

A case from the initial days of the Workers’ Compensation law in Connecticut addresses the overall policy behind deeming such injuries compensable. In Mason v. Alexandre, 96 Conn. 343 (1921) the Supreme Court expressed that as a general rule travel to a doctor for treatment of a compensable injury to be for “the joint benefit of himself and his employer.” In that specific case the court found an imprudent shortcut over railroad tracks rendered an injury at that location noncompensable, while implying that an injury which occurred on a public street would be compensable. This concept is consistent with our precedents in Cole v. Norwalk Wilbert Vault Co., 4 Conn. Workers’ Comp. Rev. Op. 155, 330 CRD-2-84 (February 26, 1988) and Zullo v. Caron Roofing Company, Inc., 12 Conn. Workers’ Comp. Rev. Op. 357, 1634 CRB-4-93-2 (August 2, 1994), where we determined that injuries suffered while undergoing authorized rehabilitation from a compensable injury were compensable injuries as well. Apart from the concept of “mutual benefit,” all these cases involve the concept of “proximate cause” i.e. whether the subsequent injury had a “proximate cause set in motion by the employment,” Kolomiets v. Syncor International Corp., 252 Conn. 261, 272 (2000),“[a]n injury of this description is one of the risks of the employment, for it is due to it and arises from it, either directly or as incident to it, or to the conditions and exposure surrounding it. And the proximate cause of the injury is not necessarily that which immediately arises out of the employment, but may be that which is reasonably incidental to it.” Larke v. Hancock Mutual Life Ins. Co., 90 Conn. 303, 309-310 (1916).2

We believe an analysis of facts in this situation justifies the trial commissioner’s conclusion that the standard “coming and going” rule as outlined in such cases as Matteau v. Mohegan Sun Casino, 4998 CRB-2-05-9 (August 31, 2006) was not applicable herein. The facts as presented offer no alternative explanation for the claimant leaving his home at the time of the accident other than to attend authorized medical treatment for a compensable injury. That treatment had by custom occurred at the same place and time every week. We look to one of the touchstone cases regarding the “coming and going” rule, Dombach v. Olkon Corportation, 163 Conn. 216 (1972) which makes clear the claimant’s purpose when leaving his abode is a decisive factor in resolving these cases.

In Dombach the claimant had to travel to upstate New York for business and intended to continue to Canada for personal reasons. He was injured en route prior to reaching his business destination. The Supreme Court pointed out one exception to the “coming and going” rule was “where the employee is injured while using the highway in doing something incidental to his regular employment, for the joint benefit of himself and his employer, with the knowledge and approval of the employer.” Id., 222. In discussing the standard for determining when a claimant was using the highway incidental to his regular employment the Supreme Court cited Justice Cardozo’s opinion in the New York case, Matter of Marks v. Gray, 251 N.Y. 90 (1929), 167 N.E. 181 as follows:

To establish liability, the inference must be permissible that the trip would have been made though the private errand was canceled. . . . The test in brief is this: if the work of the employee creates the necessity for travel he is in the course of his employment, though he is serving at the same time some purpose of his own. . .If, however, the work has no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk. Id., 224.

The facts in this case establish the claimant would not have left his house on the afternoon of the accident but for the need to treat for a compensable injury. His injury occurred prior to reaching his medical treatment; hence there is no issue as to the claimant being injured while attending to personal business, unlike Greco v. Greco Auto Parts, 3402 CRB-4-96-8 (February 4, 1998). Unlike Mason, supra, there is no allegation that the claimant took a detour off the direct public highway route between his abode and the therapist thus causing “an extraordinary peril quite outside of any risk connected with his employment, which caused his death.” Id., 345. The risk involved in this case is the ordinary risk of travel which was a necessary adjunct to obtaining treatment for the previous injury.3

Respondent argues that since this injury occurred on a public street and not on the premises of the therapist, the employer should not be liable for the consequences. We however, find that the trial commissioner concluded that the claimant was obligated to attend these physical therapy sessions. It is undisputed that the physical therapy sessions which the claimant was attending were “reasonable and necessary” care within the scope of our precedent which the employer was statutorily obligated to provide to the claimant. See § 31-294d(a)(1) C.G.S. The trial commissioner correctly pointed out that an employee who fails to avail themselves of such services places himself at risk of having his compensation benefits suspended pursuant to § 31-294c(b) C.G.S.4 We also note that under § 31-312(a) C.G.S. an employee is compensated for lost wages and travel expenses when he attends medical treatment. We therefore cannot find the trial commissioner’s conclusion that this physical therapy session was a work related obligation clearly erroneous. We believe that injuries en route to work related obligations, which include treatment for a previous compensable injury, can be found compensable by applying the test outlined in Dombach, supra.5

We also believe the trial commissioner’s findings on “mutual benefit” are critical herein and place this injury within the scope of injuries deemed compensable pursuant to the Mason case. The trial commissioner found in the present case that the physical therapy treatments in this case produced a mutual benefit to both the claimant and the respondent. The respondent argues to the contrary, claiming that this constitutes a “mythical benefit doctrine.” We believe the precedent in Mason, supra, is supportive of the trial commissioner and better reflects the policy behind our Workers’ Compensation Act. The overall structure of Chapter 568 is premised on the concept that an injured worker will return to gainful employment in an expeditious manner if possible. Our board has been unequivocal on this issue. “Our workers’ compensation system is designed for physicians to play a vital role by providing medical care for injured workers, diagnosing their conditions and degrees of impairment, and facilitating their return to work once they are physically ready” McCarthy v. Hartford Hospital, 5079 CRB-1-06-3 (March 8, 2007). See also Platt v. UTC/Pratt & Whitney Aircraft, 3 Conn. Workers’ Comp. Rev. Op 3, 164 CRD-6-82 (August 16, 1985) (employer’s obligation to monitor case for employee’s ability to return to gainful employment). The Supreme Court has also opined on many occasions that the General Assembly enacted Public Act 93-228 for the purpose of reducing the cost of the workers’ compensation system, Pasquariello v. Stop & Shop Cos., 281 Conn. 656, 674 (2007); Rayhall v. Akim Co., 263 Conn. 328, 348 (2003). Obviously, an employee who returns to health and returns to work reduces the cost of workers’ compensation.

The trial commissioner’s finding of mutual benefit under the facts of this case is dispositive. As the Supreme Court held in Labadie v. Norwalk Rehabilitation Services, Inc., 274 Conn. 219 (2005), “[T]his court previously has interpreted that requirement to mean that, ‘in . . . going and coming cases, it is necessary for the commissioner to find a benefit to the employer before compensation will be awarded.’” Id., 234. We believe this conclusion was a reasonable one under the facts of this case. This is inherently a fact driven exercise for the trial commissioner to determine based on the evidence presented. In our recent decision in Mleczko v. Haynes Construction Company, 5109 CRB-7-06-7 (July 17, 2007) we cited the test in Spatafore v. Yale University, 239 Conn. 408 (1996) that when a claimant suffers an off-premises injury it is the claimant’s burden to prove his journey mutually benefited both his employer and himself.6 In the present case, the claimant prevailed in his burden of proof before the trial commissioner. We will not disturb this factual finding on appeal.

As a result, we affirm the trial commissioner’s Finding and Award and dismiss this appeal.

Commissioners Nancy E. Salerno and Scott A. Barton concur in this opinion.

1 Respondent argued in their Motion to Correct that the treating physician, and not their claim administrator, directed the claimant to treat at Score. We infer the trial commissioner disagreed, and in any event, we do not believe this is a significant issue insofar as there is no argument presented that the respondent disagreed with the claimant’s choice of treating therapist. We also deem the correction sought which would add the claimant’s rationale for calling in sick irrelevant to the issues herein. BACK TO TEXT

2 An injury suffered while obtaining authorized treatment for a compensable injury is similar to those cases where further treatment led to an additional injury, which was deemed a sequelae of the original injury by the trial commissioner. See Mana v. Sarah, Inc., 5073 CRB-3-06-3 (March 22, 2007). The leading treatise on workers’ compensation law has opined that injuries suffered en route to a medical appointment may be attributed to the original injury, while also pointing out that such claims have been denied when an added factor such as lack of authorization is raised 3 Larsons Workers’ Compensation Law. § 10.07. We believe our reliance on a case by case analysis by the trier of fact is the optimal result herein. BACK TO TEXT

3 Had this claimant been injured while commuting to work, § 31-275(1)(A)(i) C.G.S. would deem this injury within the scope of employment and compensable. The respondent appears to argue the General Assembly intended previously healthy police officers to be compensated for injuries sustained on their regular commute, but intended to bar recovery for those police officers previously injured on the job who sustain additional injuries as a consequence of treating for a work related injury. We are not persuaded this anomalous result is consistent with our statutes or public policy. BACK TO TEXT

4 We have cited this principle of law in O’Connor v. Med-Center Home Healthcare, Inc., 4954 CRB-5-05-6 (July 17, 2006) and Barnett v. Harborview Manor, 3189 CRB-3-95-10 (February 27, 1997) pointing out that it is the trial commissioner who must determine if the refusal to treat is “reasonable.” BACK TO TEXT

5 Our research indicates that courts in most jurisdictions have adopted this approach making injuries incurred while traveling to treatment for a compensable injury themselves compensable. See McElroy’s Case, 494 NE2d 1 (Mass. 1986); Font v. New York City Board of Ed., 566 NYS2d 754 (A.D. 3 Dept. 1991); In re Consolazio, 709 NYS2d 191 (A.D. 2 Dept. 2000); Telcon, Inc. v. Williams, 500 So. 2d 266 (Fla. App. 1 Dist. 1986); Berro v. Workmen’s Compensation Appeal Board, 645 A2d. 342 (Pa. Cmwlth. 1994); Woodrum v. Premier Auto Glass Company, 660 NE2d 491-93 (Ohio App. 5 Dist. 1995); and Price Mine Service, Inc. v. Industrial Claim Appeal Office, 64 P3d 936 (Colo. App. 2003). We therefore find the respondents’ argument that the trial commissioner’s decision was a “radical foray beyond the outer limits of any legally sustainable extension of the Act’s jurisdiction” inconsistent with the majority view of the law. BACK TO TEXT

6 We believe our precedent in Cole, supra, Zullo, supra, and Mana, supra, establishes that injuries incurred while treating for compensable injuries are within the scope of Chapter 568, unlike Spatafore, where extending coverage to injuries sustained while on union business was deemed “a dramatic and unjustifiable expansion of our workers’ compensation law.” Id., 426. BACK TO TEXT

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Page last revised: September 28, 2007

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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