CASE NO. 5466 CRB-1-09-5
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MAY 12, 2010
STATE OF CONNECTICUT DEPARTMENT OF ENVIRONMENTAL PROTECTION
GAB ROBINS OF NORTH AMERICA
The claimant was represented by Laura Ondrush, Esq., The Dodd Law Firm, LLC, Ten Corporate Center, 1781 Highland Avenue, Suite 105, Cheshire, CT 06410.
The respondent was represented by Francis C. Vignati, Jr., Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the May 14, 2009 Finding and Award of the Commissioner acting for the First District was heard December 18, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this case sought and was awarded benefits as a result of an injury sustained when he was assaulted by a co-worker. He asserts the injuries were sustained during the course of employment, and thus were compensable. The trial commissioner agreed with the claimant, and awarded him benefits for the injuries he sustained. The respondent has appealed. We find the commissioner’s decision was based on the factual evidence presented and the claimant’s credibility. As a result, we affirm the trial commissioner’s Finding and Award and dismiss this appeal.
The trial commissioner reached the following findings of fact at the conclusion of the formal hearing. She found that on the date of the incident, October 31, 2002, the claimant was an employee of the Department of Environmental Protection and had worked for DEP since 1990. She also found that Brian Sousa was a DEP employee on that date. Both men worked in the same office building on the same floor, but had separate cubicles. The claimant testified that on the morning in question, he walked over to Mr. Sousa’s cubicle intending to ask him about the status of a wastewater discharge permit, which was official DEP business. Prior to making this inquiry, the claimant began the conversation with two non-work related questions directed at Mr. Sousa, the first having to do with “how’s work going?” and the second inquiring about Mr. Sousa’s car. The claimant thought Mr. Sousa still owned a Nissan 300z automobile.
Before the claimant had a chance to ask about the wastewater permit Mr. Sousa “jumped out of his seat and had started pushing and shoving” the claimant. The claimant exchanged words with Mr. Sousa and started to walk away. Mr. Sousa followed the claimant, grabbed him by the neck, threw him against the wall and held him up against the wall while he choked him. The claimant testified he injured his neck and back in this assault.
The claimant described the initial discussions with Mr. Sousa as an “ice-breaker” prerequisite to working up to the business related question. The claimant thought Mr. Sousa was indifferent towards him and as a result decided such initial questions were an appropriate way to start the conversation. The claimant did not expect such an assault and the claimant’s present supervisor, Thomas RisCassi, testified that the assault was “a unique event.” He also testified that there was nothing unusual about the claimant going to talk to Mr. Sousa. Mr. RisCassi was told immediately after the assault what had occurred, and was shown marks on the claimant’s neck from the assault.
Based on these facts the trial commissioner concluded the claimant suffered a work-related injury on October 31, 2002. The trial commissioner found the claimant’s testimony credible and persuasive as to the manner of his injury, the circumstances leading up to it, and the symptoms he experienced. She found no evidence of animosity between the parties to the incident, and no allegation that the claimant provoked the attack in some fashion. She found that a violent exchange could arise out of the claimant’s employment and that the injuries from the incident were compensable under the precedent in Stulginski v. Waterbury Rolling Mills Co., 124 Conn. 355, 361-62 (1938).
The respondent filed a Motion to Correct in response to the Finding and Award. This motion was granted only as to correcting some scrivener’s errors. The present appeal has ensued.
The gravamen of the respondent’s argument was that the trial commissioner improperly applied the test in Stulginski, supra, to find the claimant’s injuries compensable. The respondent places virtually all its emphasis on the findings as to the actual dialogue between the claimant and Mr. Sousa to argue that the evidence would only support a finding that the claimant was talking about a personal automobile at the time of the assault. We find this misstates the law and the evidence.
The trial commissioner in drafting this Finding and Award may have confused the respondent in placing any emphasis herein on the “anticipatory” language prior to the assault. See Finding, ¶ C. We look to the “plain language” of the statute (as per § 1-2z C.G.S.) to ascertain when an injury is “incidental” to employment. Section 31-275(1) C.G.S. reads as follows:
“Arising out of and in the course of his employment” means an accidental injury happening to an employee or an occupational disease of an employee originating while the employee has been engaged in the line of the employee’s duty in the business or affairs of the employer upon the employer’s premises, or while engaged elsewhere upon the employer’s business or affairs by the direction, express or implied, of the employer. . .
We look to the precedent in Spatafore v. Yale University, 239 Conn. 408 (1996) to delineate the appropriate standard as applied by our appellate courts. “Proof that the injury occurred in the course of the employment means that the injury must occur (a) within the period of the employment; (b) at a 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.” Id., at 418.
The facts of this case are rather straightforward. The claimant was at his place of employment during normal business hours when he was injured. The question before the trial commissioner was whether he was engaged in the affairs of the employer at the time of his injury. He testified he went to see Mr. Sousa to discuss a permit. Mr. RisCassi testified that it was not unusual for the claimant to speak to Mr. Sousa. The trial commissioner found the claimant’s narrative credible. This effectively is dispositive of the appeal.
This case is in many ways the mirror image of our recent decision in Fekieta v. Drill Masters, Eldarado Tool, Inc., 5458 CRB-4-09-5 (April 6, 2010). In Fekieta we upheld a Finding and Dismissal which found injuries from a workplace assault not to be compensable. The trial commissioner in Fekieta found the claimant not to be credible and determined that the proximate cause of the altercation was animosity between the parties which placed it outside the scope of employment. Since the claimant in Fekieta “had embarked upon an enterprise of his own not contemplated by the terms of his employment,” Stulginski, supra at 362, his injuries were not compensable. He was simply not engaged in his employer’s business when he was injured.
The trial commissioner in the present case concluded that claimant’s purpose in meeting with Mr. Sousa was work related.1 She also found there was no animosity between the parties herein. We cannot revisit findings of witness credibility Burton v. Mottolese, 267 Conn. 1, 40 (2003), or revisit a trial commissioner’s factual determinations Fair v. People’s Savings Bank, 207 Conn. 535 (1988). We also find that the respondent’s Motion to Correct, even if granted, would not have compelled a different result herein. Obviously, after hearing the totality of evidence, the trial commissioner was convinced that the claimant did not visit Mr. Sousa out of his interest in Nissan automobiles. Since he was injured while rendering a service to his employer, and not while engaged in a personal endeavor, his injuries are compensable under the terms of § 31-275(1) C.G.S.2
We cannot, as an appellate panel, revisit the credibility determinations of the trial commissioner. We find no error, and herein affirm the Finding and Award. The appeal is dismissed.
Commissioners Peter C. Mlynarczyk and Randy L. Cohen concur in this opinion.
1 We may distinguish Hernandez v. Pizzaria 101 and Family, 5254 CRB-2-07-7 (December 8, 2008) from this case. In Hernandez the claimant was attacked by a co-worker after working hours concluded and for reasons deemed unrelated to the place of employment. The assault herein occurred during working hours and the trial commissioner found no animosity between the parties. We may also distinguish this case from Ryker v. Bethany, 4780 CRB-3-04-2 (February 16, 2005), aff’d, 97 Conn. App. 304 (2006), cert. denied, 280 Conn. 932 (2006). Unlike Ryker, there is not evidence on the record the claimant provoked the assault. The facts herein in the present case established the assault on the claimant was “. . . incidental to some duty of his employment. . . .” Ryker, supra, at 310. BACK TO TEXT
2 While the fact pattern is slightly different, we find the result herein consistent with Alling v. Davis & Geck, 4483 CRB-7-02-1 (December 20, 2002). In Alling, the claimant was injured after a dispute occurred over malfunctioning equipment. In the present case the claimant was injured when visiting a co-worker to discuss the status of a permit. BACK TO TEXT