State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Tutunjian v. Burns, Brooks & McNeil

CASE NO. 5618 CRB-6-11-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 21, 2012

RICHARD TUTUNJIAN

CLAIMANT-APPELLEE

v.

BURNS, BROOKS & MCNEIL

EMPLOYER

and

NGM INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Frank V. Costello, Esq., McCarthy, Schuman & Coombes, LLP, 61 Russ Street, Hartford, CT 06106.

The respondents were represented by Keith E. Marquis, Esq., The Law Offices of Keith E. Marquis, 500 East Main Street, Suite 314, Branford, CT 06405.

This Petition for Review1 from the December 14, 2010 Finding and Award of the Commissioner acting for the Eighth District was heard September 30, 2011 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Scott A. Barton and Christine L. Engel.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent in this case has appealed from a Finding and Award issued to the claimant as a result of a January 5, 2009 slip and fall accident. The issue herein is whether the claimant’s injuries arose out of and in the course of his employment. The trial commissioner concluded based on the facts of this case that the claimant met his burden of establishing compensability. We find that the trial commissioner followed the settled law in a case which was heavily dependent on finding the claimant’s narrative credible. We affirm the Finding and Award and dismiss this appeal.

The trial commissioner reached the following findings of fact. The claimant was hired by the respondent on May 12, 2006 to work as an insurance broker. His duties, among other things, were selling insurance and maintaining various insurance accounts and clients. The claimant’s primary office was in the respondent’s Torrington office,2 and the claimant also maintained a home office. The claimant from time to time, particularly in bad weather, worked out of his home office and the respondent acknowledged and consented to this arrangement.

On January 5, 2009 the weather was bad and the claimant decided to work out of his home office. The claimant had business mail that needed to get out and walked to his mailbox to mail the correspondence. The claimant tripped and fell on his way to the mailbox sustaining a significant left arm injury. He has sought medical treatment with a number of medical providers since that injury.

Based on these facts the trial commissioner concluded the claimant’s injury arose out of and was in the course of employment. Relying on Kish v. Nursing and Home Care, Inc., 248 Conn. 379 (1999) the commissioner found the incident was incidental to the employment relationship. The commissioner ordered the respondents to pay any indemnity or medical benefits attributable to the incident.

The respondents filed a Motion to Correct challenging the factual findings of the trial commissioner. The trial commissioner denied this Motion in its entirety. The respondents have pursued this appeal arguing that the trial commissioner lacked a sufficient basis to find the claimant’s injury compensable. The respondents argue that the evidence only supported a finding that the claimant was acting for his own personal convenience at the time he was injured, and therefore, the claimant’s injury was not compensable.

The respondents point out that on a number of occasions this tribunal has been hesitant to expand the definition of the workplace when applying the test promulgated in Kish, supra. In particular, the respondents point to our decision in Matteau v. Mohegan Sun Casino, 4998 CRB-2-05-9 (August 31, 2006) where we vacated a trial commissioner’s decision that an injury sustained between the claimant’s residence and her office was compensable. We must also consider the legislative and regulatory responses enacted in response to Tovish v. Gerber Electronics, 10 Conn. Workers’ Comp. Rev. Op. 133, 1143 CRD-4-90-12 (June 4, 1992), aff’d, 32 Conn. App. 595 (1993), cert. improvidently granted, 227 Conn. 930 (1993), cert. dismissed, 229 Conn. 587 (1994). In response to Tovish, § 31-275(1) C.G.S. was amended so that injuries sustained at an employee’s abode while engaged in preparation for work were deemed noncompensable. Such limitations to coverage were enumerated in Sec. 31-275-1 of this Commission’s Administrative Regulations.

We are mindful of this precedent and how the statutes have evolved. We are also cognizant that since Matteau the ubiquitous adoption of such hand-held devices as I-phones and Blackberries has further blurred the boundaries between one’s workplace and one’s personal life. Nonetheless, the present case requires a narrow inquiry. We must ascertain if the evidence supports the trial commissioner’s conclusion that the claimant’s injury was sustained while the claimant was rendering a benefit to his employer pursuant to the long-standing precedent in McNamara v. Hamden, 176 Conn. 547, 556 (1979).

......we restate the rule to be applied in workmen’s compensation cases generally. In order to be compensable, an injury must (1) arise out of the employment; and (2) occur in the course of the employment. To occur in the course of the employment, the injury must take place (a) within the period of the employment, (b) at a place where 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.

We examined the application of this doctrine to injuries outside the traditional workplace in Matteau. In that case we reviewed the applicable case law and relied heavily on precedent from the first Labadie v. Norwalk Rehabilitation Servs., 4254 CRB-7-00-6 (June 21, 2001) decision.3 In that case we discussed how Larson’s Treatise on Workers’ Compensation Law set forth a three prong test for determining when a home office constitutes a place of employment. “The three prong test suggests an analysis in which a claimant must demonstrate ‘a regular and substantial quantity of work to be performed at home, the continuing presence of work equipment in the home, and special employment circumstances that make it necessary rather than personally convenient to work at home. 3 Larson’s Workers’ Compensation Law (2000), §§ 16.10[2], pp. 16-27.’” Matteau, supra.

The claimant has introduced evidence supportive of the first two prongs of this test. He testified that his home computer had been specially programmed to link with the respondent’s computer. September 9, 2010 Transcript, p. 11. He also testified to regularly bringing work home. September 9, 2010 Transcript, pp. 34-35. The commissioner could conclude based on this testimony the first two prongs herein had been met.

However, given the facts of this case we believe the threshold question was whether “special employment circumstances [exist] that make it necessary rather than personally convenient to work at home.”. We look to the trial commissioner’s findings and the evidence on the record to ascertain if that standard was met. The trial commissioner found the claimant had maintained a home office and had a standard protocol of working at that office on days when there was bad weather. See September 9, 2010 Transcript, p. 34-35. The trial commissioner in this case concluded that it was necessary for the claimant to work from home that day as a result of adverse weather conditions, crediting the claimant’s testimony that as a result of living at a high elevation travel that morning was not feasible due to freezing rain. See September 9, 2010 Transcript, p. 22 and Claimant’s Exhibit E. The claimant also presented evidence that the respondent directed its employees not to travel to the office when road conditions were dangerous. Claimant’s Exhibit A, p. 21. Nonetheless, the claimant testified that due to the number of days since he had last been in the office it was necessary to mail business correspondence that day, and in the absence of bad weather, the letter would have been mailed out of the respondent’s office. September 9, 2010 Transcript, pp. 23, 25-26.

We may properly infer that the claimant was therefore where he might reasonably be expected to be and was injured during the period in which he was employed by the respondent. Had the claimant decided on January 5, 2009 that due to scheduling concerns or personal errands he needed to work out of his home office the outcome in this case may well have been different, but the evidence clearly points to the claimant finding it necessary, and not merely convenient, to be at home that day. The evidence herein which was credited by the trial commissioner was that the respondent reasonably should have expected the claimant to be doing work on its behalf at home that morning, and the claimant was injured while rendering a benefit to his employer. The respondent argues the claimant did not offer a detailed enough description of his activities on the morning of his injury to warrant an award.4 However, issues as to witness credibility are the province of the trial commissioner, Burton v. Mottolese, 267 Conn. 1, 40 (2003). As an appellate panel, we may not retry the facts of the case. Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007).

We also note there are no factual findings consistent with finding the claimant was injured while engaged in preparation for work. Rather, the claimant testified he was mailing business correspondence when he was injured. As a result, the administrative regulations promulgated after the Tovish decision are inapplicable to this scenario. On the other hand, the trial commissioner found the Kish case applicable. In reviewing that case, we find the claimant in the present matter has an even more compelling argument in favor of finding the injury compensable. The claimant in Kish was a registered nurse employed in home health care. While in the course of her business travel she was injured while in the process of mailing a personal greeting card. The trial commissioner found that act was an “inconsequential deviation” made during the hours of the claimant’s employment and that the test delineated in McNamara, supra, had been met. The Supreme Court affirmed this conclusion. Kish, supra, at 386-387. The claimant herein testified he was injured, not in the process of mailing personal correspondence, but in the course of mailing business correspondence. Such an endeavor could be deemed an “essential duty” to an insurance agent such as the claimant. See Labadie v. Norwalk Rehabilitation Services, 274 Conn. 219 (2005), at 237-239.

“As discussed previously, an injury is compensable if it occurs while the employee is ‘reasonably fulfilling the duties of employment or doing something incidental to it.’”. (Emphasis in original.) Kish, supra, at 386. The evidence credited by the trial commissioner clearly sets forth that the claimant was injured while fulfilling a duty of employment. Unlike Matteau, supra, this situation is clearly distinguishable from ordinary commuting accidents rendered noncompensable by the “coming and going” rule. When adverse weather conditions intervene to force an employee to utilize an existing home office, we believe a trial commissioner may determine a “special employment circumstance” exists and the claimant is “where he may reasonably be” when he or she renders a benefit to their employer and is injured. Since this situation satisfies the standards delineated in McNamara, supra, we affirm the Finding and Award and dismiss this appeal.5

Commissioners Scott A. Barton and Christine L. Engel concur in this opinion.

1 We note that a postponement was granted during the pendency of this appeal. BACK TO TEXT

2 The Finding and Award stated the claimant’s office was in West Hartford. The parties both acknowledge the claimant’s office was actually in Torrington, which was confirmed in the testimony before the commissioner. We herein correct what is a scrivener’s error which is immaterial to the outcome of this case. BACK TO TEXT

3 We noted in Matteau v. Mohegan Sun Casino, 4998 CRB-2-05-9 (August 31, 2006) that the eventual determination of compensability in the Labadie case did not turn on the presence of a home office. See Labadie v. Norwalk Rehabilitation Services, Inc., 4529 CRB-7-02-5 (June 3, 2003), rev’d, 84 Conn. App. 220 (2004), cert. granted, 271 Conn. 925 (2004), aff’d, 274 Conn. 219 (2005). BACK TO TEXT

4 While the respondents argue that the trial commissioner could not rely on the claimant’s testimony to find the correspondence mailed was business related in the absence of written documentation or logs, we find the commissioner could rely on the claimant’s testimony on this point. BACK TO TEXT

5 We uphold the trial commissioner’s denial of the respondent’s Motion to Correct. This motion sought to interpose the respondent’s conclusions as to the law and the facts presented. To the extent “undisputed” facts were not added to the record, they would not have compelled a different result. Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006), and D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003). BACK TO TEXT

Workers’ Compensation Commission

Page last revised: March 27, 2012

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