State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Perun v. City of Danbury

CASE NO. 5651 CRB-7-11-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 15, 2012

ROBERT PERUN

CLAIMANT-APPELLEE

CROSS-APPELLANT

v.

CITY OF DANBURY

EMPLOYER

and

CONNECTICUT INTERLOCAL RISK MANAGEMENT AGENCY (CIRMA)

INSURER

RESPONDENTS-APPELLANTS

CROSS-APPELLEES

APPEARANCES:

The claimant was represented by Paul J. Garlasco, Esq., 83 Park Lane Road, New Milford, CT 06776.

The respondents were represented by Colette S. Griffin, Esq., Howd & Ludorf, LLC, 65 Wethersfield Avenue, Hartford, CT 06114-1190.

This Petition for Review1 from the April 26, 2011 Amended Finding and Award of the Commissioner acting for the Seventh District was heard October 28, 2011 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Christine L. Engel and Daniel E. Dilzer.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have appealed from an Amended Finding and Award issued to the claimant as a result of injuries he sustained in his driveway on February 16, 2010. They argue that based on the facts herein this claim is jurisdictionally barred pursuant to § 31-275(1)(E) C.G.S., in that the claimant was injured at his abode and had not been directed by his employer to undertake any activities at home on its behalf. After considering this statute at length, we are persuaded by this argument. We concur the statute does not permit a trial commissioner to find, based on the facts of this case, that the claimant’s injury was compensable. Accordingly, we sustain the respondent’s appeal and reverse the Amended Finding and Award.

The trial commissioner found the following facts at the formal hearing. Only the claimant testified, and the respondent neither cross-examined the witness nor presented their own witness. While the respondent did file a Motion to Correct and a Motion for Articulation, we find that these motions challenged the legal findings of the trial commissioner and therefore the facts were essentially uncontested. The trial commissioner found the claimant was employed as a police officer by the City of Danbury on February 16, 2010. On that date the claimant slipped on a patch of ice while walking from his home to his motor vehicle for the purpose of reporting to work. At the time of his fall, he was in his police uniform, carrying his radio and gun. The claimant testified that he got up after the fall, cleaned snow from the night before off of his truck and proceeded to work for a 7:45 a.m. roll call. The claimant testified he worked his shift in discomfort and subsequently filled out a standard accident report the day after his slip and fall for a low back injury.

Based on these facts, the trial commissioner concluded a defense based on § 31-275(1)(E) C.G.S., was inapplicable to this case. She cited “[t]he express language of C.G.S. Sec. 31-275(1)(A)(i) provides that “[f]or a police officer...,’in the course of his employment’ encompasses such individual’s departure from such individual’s place of abode to duty, such individual’s duty, and the return to such individual’s place of abode after duty.” Based on this statutory interpretation she concluded “the claimant’s injury arose out of and in the course of his employment.” She ordered the respondent to assume liability for all compensation due to the February 16, 2010 injury. She also determined the claimant’s bid for attorney’s fees and penalties were not presently before the commission and denied this relief.

Subsequent to the initial Finding and Award issued on April 12, 2011, the present Amended Finding and Award was issued on April 26, 2011, correcting an inaccurate docket number for the claim. The respondent filed a Motion for Articulation and a Motion to Correct. Both motions were denied. The respondent then filed Reasons for Appeal seeking to vacate the Finding and Award. The respondent also filed a Motion for Attorney’s Fees asserting counsel for the claimant had made misrepresentations to the tribunal as to whether they would seek sanctions. The trial commissioner granted that motion on June 23, 2011, stating the claimant had not filed an objection. The claimant appealed this ruling on August 10, 2011, asserting they had not received the original decision and had been proceeding under the belief a hearing was scheduled for this issue and the issues of sanctions would be addressed at that time.

In considering this appeal, we note that this appears to be a case which is exclusively focused on issues of statutory interpretation. We must therefore ascertain if the trial commissioner has properly applied the law to the facts in this case, Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007), and may reverse the trial commissioner’s finding if it is based on a misapplication of law.

The facts are not in dispute but the parties take diametrically opposed positions as to what the law means. The claimant argues that § 31-275(1)(A)(i) C.G.S. should be read as creating a specific carve-out for police officers and firefighters making injuries at their homes compensable the moment the claimant crosses the “portal.” As the claimant views the law there has been “portal to portal” coverage for these employees since the Lake v. Bridgeport, 102 Conn. 337 (1925) case. Since the claimant was injured on his way to work after crossing the “portal’ the claimant agrees with the trial commissioner’s interpretation of law. The respondent presents a different interpretation. They argue that both § 31-275(1)(A)(i) C.G.S. and § 31-275(1)(E) C.G.S. must be read together. Since the claimant was injured in his driveway prior to commencing his commute to work, the injury in this case is noncompensable. They point out the definition of “abode” in the statute encompasses walkways and driveways; therefore, as a matter of law the claimant had not started his journey. After reviewing the statutes and the case law we find the respondent’s interpretation more persuasive and better reasoned.

We start with “plain meaning” of the statute, as we are required in applying the law pursuant to § 1-2z C.G.S. The text of § 31-275(1)(A)(i) C.G.S. reads as follows:

For a police officer or firefighter, “in the course of his employment” encompasses such individual’s departure from such individual’s place of abode to duty, such individual’s duty, and the return to such individual’s place of abode after duty;

The text of § 31-275(1)(E) C.G.S. reads as follows:

A personal injury shall not be deemed to arise out of the employment if the injury is sustained: (i) At the employee’s place of abode, and (ii) while the employee is engaged in a preliminary act or acts in preparation for work unless such act or acts are undertaken at the express direction or request of the employer.

This statute was further defined in § 31-275(1)(F) C.G.S and § 31-275(1)(G) C.G.S.

. . . For purposes of subparagraph (E) of this subdivision, “place of abode” includes the inside of the residential structure, the garage, the common hallways, stairways, driveways, walkways and the yard;
The Workers’ Compensation Commission shall adopt regulations, in accordance with the provisions of chapter 54, to implement the provisions of this section and shall define the terms “a preliminary act,” “acts in preparation for work,” “departure from place of abode directly to duty” and “return directly to place of abode after duty” on or before January 1, 2006.

We note that both statutes use the term “abode” and neither statute uses the term “portal” which was the standard counsel for the claimant believes governs the facts of this case. We also note the “plain meaning” of the statute defines “abode” as including driveways and walkways appurtenant to a claimant’s home. Claimant’s counsel argues that the Lake case governs over the plain meaning of the statute in creating a “portal” standard. After reviewing Lake, and how the law has evolved since that decision, we disagree.

The injury which was found compensable in Lake did not occur at the claimant’s residence; rather, it occurred on a public highway. Id., 342-343. The Supreme Court in McKiernan v. New Haven, 151 Conn. 496 (1964), subsequently limited the Lake precedent, determining that when a police officer suffered an ordinary commuting injury on a public highway, the injury was not compensable. McKiernan, supra, 499-501. Presumably in response to the McKiernan decision, the General Assembly adopted in 1969 the current language which is codified in § 31-275(1)(A)(i) C.G.S., restoring the status of compensability to injuries sustained to police officers and firefighters while commuting to work. The General Assembly next revisited the issue of injuries at a claimant’s home in 1995. In 1995 they passed Public Act 95-262, which added § 31-275(1)(E) C.G.S., § 31-275(1)(F) C.G.S. and § 31-275(1)(G) C.G.S. These statutes limited the circumstances under which a claimant’s injury at his or her home could be deemed compensable.

The claimant argues while the 1995 legislation limited compensability of household injuries for the general class of claimants, this Public Act was not intended to limit any coverage previously made available to those claimants within the ambit of § 31-275(1)(A) C.G.S. and the Lake case. As the claimant views the law, the prior law and the Lake case trumps the more recent legislation. We have examined the legislative history of this Public Act. We find neither the House proponent of this bill, Representative Mary Eberle, or the Senate proponent, Senator Louis DeLuca, made any reference whatsoever to police officers or firefighters in their statements urging enactment of Public Act 95-262.2 In light of this, we find no legislative intent expressed that police officers and firefighters were exempt from the terms of the Act.

Since we find no legislative directive not to apply both statutes in a coordinate fashion, the tenets of statutory construction require that we apply the statutes together. “[W]hen construing a statute, we do not interpret some clauses in a manner that nullifies others, but rather read the statute as a whole and so as to reconcile all parts as far as possible.” (Internal quotation marks omitted.) Iovieno v. Commissioner of Correction, 222 Conn. 254, 258, 608 A.2d 1174 (1992).” Vibert v. Board of Education, 260 Conn. 167, 171 (2002). Consequently, we look to the language of the statute in its entirety.

The statutes when read together continue to adhere to the standard in Lake, supra, of making commuting accidents of police officers and firefighters compensable. The claimant now faces a higher burden of establishing compensability when he or she is injured in their home or appurtenant to their home. Acts undertaken at one’s abode in preparation for work are not compensable unless they are undertaken at the direction of the respondent. We look now to how courts have interpreted the elements of this statute.

The Appellate Court has had the opportunity to define the terms of the word “abode” and in so doing, cited § 31-275(1)(E) C.G.S. as authority for their position. In Fine Homebuilders, Inc. v. Perrone, 98 Conn. App. 852 (2006), the issue was whether a state marshal complied with § 52-57(a) C.G.S. when she affixed a foreclosure writ to a locked gate several hundred feet from the defendant’s dwelling in Darien. The defendant argues that service had not been made at her “abode.” The majority opinion relied on our statute to determine service had been perfected.

Elsewhere, in the workers’ compensation context, the General Assembly has employed the term abode to connote more than one’s dwelling itself. General Statutes § 31-275 sets forth the workers’ compensation scheme for police officers and firefighters who are injured in the course of employment. The statute’s definition of the term “in the course of employment” is instructive. In pertinent part, the statute provides: “For a police officer or firefighter, ‘in the course of his employment’ encompasses such individual’s departure from such individual’s place of abode to duty, such individual’s duty, and the return to such individual’s place of abode after duty . . . .” General Statutes § 31-275(1)(A)(i). Thus, a police officer or firefighter injured while traveling to or from his or her abode while in the course of employment may be entitled to workers’ compensation benefits. Subparagraph (E) of subdivision (1), however, provides in relevant part: “A personal injury shall not be deemed to arise out of the employment if the injury is sustained: (i) At the employee’s place of abode . . . .” General Statutes § 31-275(1)(E). Unlike § 52-57, the statute at hand, the legislature in § 31-275 also provided a definition of the term “abode.” The statute provides in relevant part: “For purposes of subparagraph (E) of this subdivision, ‘place of abode’ includes the inside of the residential structure, the garage, the common hallways, stairways, driveways, walkways and the yard . . . .” General Statutes § 31-275(1)(F). We believe the broad application of the term “abode” as used in the workers’ compensation statute is equally applicable to the statute at hand regarding service of process.

Id., 859-860.

We believe the Appellate Court decision in Fine Homebuilders conclusively establishes that for the purposes of Chapter 568 “abode” includes the driveway and walkways at a claimant’s residence. We do note there are recent cases where a claimant’s injury at his or her residence has been deemed compensable.3 We believe these cases are easily distinguishable from the facts in this case.

In Tutunjian v. Burns, Brooks & McNeil, 5618 CRB-6-11-1 (March 21, 2012), the trial commissioner found the claimant was injured at home on a day when he was expected by his employer to be at home, and he was injured while doing work for his employer. We affirmed this decision. In the present case, there is no evidence the claimant was injured in any manner other than leaving his house to commute to the police station where he was expected to report for duty. In Martinez v. State/Dept. of Public Safety, 4836 CRB-1-04-7 (July 22, 2005), we affirmed the trial commissioner’s decision that a state trooper injured at home during his lunch break sustained a compensable injury. We noted in that decision that the claimant was in the middle of his shift and was potentially subject to being on call while at his residence. We cited Diluciano v. State/ Military Dept., 3839 CRB-2-98-6 (June 28, 1999), 60 Conn. App. 707 (2000), cert. denied, 255 Conn. 926 (2001) that the emergency on-call nature of police officers created the public policy grounds to expand compensation coverage to such claimants.4 We also noted in Martinez, supra, as the claimant had already commenced his workday that § 31-275(1)(E) C.G.S. was inapplicable to the facts at hand. In the present case, the claimant had not yet reported to his station and had yet to commence his shift. In addition, the facts found by the trial commissioner in this case were consistent with a normal commute to the police station.

The trial commissioner did acknowledge the claimant was wearing his uniform and carrying a gun and a radio when he was injured. However, there is no evidence that the claimant was responding to any directive of the respondent when he was injured, or that he was injured in the course of performing police duties.5 The trial commissioner found that after falling down in his driveway the claimant cleaned snow off his car in order to complete his commute. Such an action clearly would fall within a “preliminary act in preparation for work” within the scope of Admin. Reg. § 31-275-1(1)(e), which includes “removing obstacles ...including but not limited to snow....”6 The Finding and Award simply is bereft of any evidence that at the time the claimant was injured he had commenced his “work day” as the term is commonly understood.

We discuss the claimant’s appeal in brief. We agree with the claimant that notwithstanding the timing of his appeal that the respondent’s Motion to Dismiss should be denied, as this Motion to Dismiss was filed in an untimely manner. We also believe the claimant presented a viable explanation for not filing his appeal in a timely fashion. See Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581, 590-591 (1999). Based on the rationale as enunciated in Bass v. AT&T, 5634 CRB-7-11-3 (May 3, 2012), we remand the issue of whether sanctions should be imposed back to the trial commissioner for a full evidentiary hearing. Since the sanction award in question was granted through what was substantially akin to a default judgment, we believe the interests of justice are best served by permitting counsel for the claimant an adversarial hearing prior to imposing sanctions.

The claimant in Lake v. Bridgeport, supra, was injured while traveling on a public highway on his way to a duty assignment. Had the claimant in this case been injured in the same manner, this injury would unquestionably be compensable. In light of subsequent legislation and case law defining the term of the word “abode,” we cannot extend the holding of Lake to injuries sustained at one’s home prior to commencing one’s normal daily commute.

The appeal is sustained and the Finding and Award is set aside. The matter of sanctions is remanded to the trial commissioner for further proceedings.

Commissioners Christine L. Engel and Daniel E. Dilzer concur in this opinion.

1 We note that extensions of time were granted during the pendency of this appeal. BACK TO TEXT

2 See 38 H.R. Proc. Pt.18, 1995 Sess., pp. 6456-57 and 38 Sen. Proc. Pt. 12, pp. 4465-66. BACK TO TEXT

3 Claimant’s counsel has brought no case to our attention where an injury sustained by a police officer at his or her home prior to commencing his or her shift has been deemed compensable by this Commission. BACK TO TEXT

4 We note that in Martinez v. State/Dept. of Public Safety, 4836 CRB-1-04-7 (July 22, 2005), this tribunal used the term “portal to portal” to describe the exemption for commuting injuries afforded police officers and firefighters under § 31-275(1)(A)(i). C.G.S. In light of the enactment of § 1-2z C.G.S. and the Appellate Court’s definition of “abode” in Fine Homebuilders, Inc. v. Perrone, 98 Conn. App. 852 (2006), we believe this dicta is no longer an accurate description of the operative law. BACK TO TEXT

5 Had the claimant observed a threat to public safety immediately upon leaving his dwelling and had injured himself while responding, we would be presented with a situation where the claimant was injured in the course of his employment. We do not read § 31-275(1)(A)(i) C.G.S. so broadly as to extend the “course of employment” to injuries sustained within one’s abode prior to commencing one’s commute. BACK TO TEXT

6 We note that we did find an injury sustained removing snow in one’s driveway compensable in Loffredo v. Wal-Mart Stores, Inc., 4369 CRB-5-01-2 (February 28, 2002). In Loffredo the claimant was injured after she was summoned by a store alarm to respond to an emergency at a time she was not scheduled to work. We pointed out in Loffredo that while Public Act 95-262 and Admin. Reg. § 31-275-1(e) dealt with acts preliminary to commencing one’s workday, these statutes and regulations were inapplicable to injuries sustained in responding to an emergency once the claimant was summoned by the respondent. We decline to extend the “special errand” exception in Loffredo to injuries sustained prior to a scheduled commute to work. BACK TO TEXT

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