Parsons, Parsons & Parsons v. Parsons Buick, Inc.

CASE NO. 3129 CRB-6-95-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 22, 1997

ESTATE OF STANLEY PARSONS and MARY E. PARSONS (Dependent Widow) and JACOB PARSONS (Dependent Son)

CLAIMANTS-APPELLANTS

v.

PARSONS BUICK, INC.

EMPLOYER

and

TRANSAMERICA INSURANCE

RESPONDENTS-APPELLEES

APPEARANCES:

The claimants were represented by William H. Champlin, Esq., Tyler, Cooper & Alcorn, City Place, 34th Floor, Hartford CT 06103.

The claimants were represented at the trial level by Samuel E. Dixon, Jr., Esq., 109 Church St., Suite 600, New Haven, CT 06510.

The respondents were represented by Jim Moran, Esq., Maher & Williams, 1300 Post Rd., P.O. Box 550, Fairfield, CT 06430.

This Petition for Review from the July 20, 1995 Finding and Dismissal of the Commissioner acting for the Sixth District was heard June 28, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the July 20, 1995 Finding and Dismissal of the Commissioner acting for the Sixth District. In that decision, the commissioner concluded that the decedent’s injury did not arise out of and in the course of his employment and thus denied the claim for workers’ compensation benefits made by the decedent’s estate and his dependent widow and son (hereinafter referred to as “claimant”). Specifically, the trial commissioner found that the decedent was not in the scope of his employment or doing something incidental thereto when he was killed in a motor vehicle accident on July 17, 1991. In support of the appeal, the claimant contends that the accident arose out of and in the course of the employment because the accident occurred while the decedent was driving to his house to pick up his son in order to bring him to work at the respondent employer. We affirm the trial commissioner.

The commissioner made the following relevant findings of fact. The decedent was employed with the respondent employer as a Vice President and Secretary and was a minority shareholder. In addition, the decedent was a trustee of several trusts which had been set up by his father, who had founded the family business. Due to growing concerns regarding the decedent’s misappropriation of the trust funds, the decedent’s three brothers arranged a meeting to be held at the employer’s facility at 7:30 P.M. on July 16, 1991. Although he was invited, the decedent did not attend. On July 17, 1991 at approximately 7:00 A.M. the decedent was in a fatal motor vehicle accident.

Whether the trier erred in finding that a claimant’s injury arose out of and in the course of the employment requires a factual determination which we will not disturb unless it is found without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). This Board has recently stated the following:

It is well settled that “[i]n order to come within the course of the employment, an 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.” McNamara v. Hamden, 176 Conn. 547, 550-51 (1979). “An injury is said to arise out of the employment when (a) it occurs in the course of the employment and (b) is the result of a risk involved in the employment or incident to it or the conditions under which it is required to be performed.” Tovish v. Gerber Electronics, 32 Conn. App. 595, 607 (1993), affirmed, 229 Conn. 587 (1994), quoting Dombach v. Olkon Corporation, 163 Conn. 216, 221-22 (1972); Bell v. U. S. Home Care Certified of Connecticut, 1792 CRB-1-93-8 (decided April 21, 1995). The question of whether an injury meets these criteria is factual in nature and is committed to the trial commissioner’s discretion. Tovish, supra, 605.

Kaplan v. State of Connecticut/Department of Health Services, 14 Conn. Workers’ Comp. Rev. Op. 296, 297-298, 2012 CRB-1-94-4 (Sept. 11, 1995).

In support of the appeal, the claimant contends that the trial commissioner erred in failing to find that the claimant, at the time of the accident, was on his way to pick up his son to bring him to the respondent employer where he had a summer job. However, it was within the trial commissioner’s discretion as the trier of fact to assess the credibility of the witnesses. Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979). Moreover, the trial commissioner “can disbelieve any or all of the evidence... and can construe that evidence in a manner different from the parties’ assertion.....” Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 44 (1996). Moreover, even if the trial commissioner found that the decedent was on his way to pick up his son to bring him to work, the injury would not necessarily be compensable because an injury sustained on a public highway while going to or from work is not compensable. Dombach v. Olkon Corporation, 163 Conn. 216, 222 (1972); Rivera v. B & D Molded Products, 9 Conn. Workers’ Comp. Rev. Op. 76, 77, 912 CRD-4-89-9 (Feb. 20, 1991).

In addition, the claimant contends that the trial commissioner was required to infer from the facts found that the decedent was at the employer’s facility after 10:00 P.M. on July 16, 1991. However, the trial commissioner concluded that the decedent was not en route to pick up his son, or to pick up a calculator, at the time of the accident. Therefore, a determination that the decedent had been at the employer’s after 10:00 P.M. would not alter the trial commissioner’s conclusion that the accident at 7:00 A.M. on July 17, 1991 did not occur while the claimant was doing something incidental to his employment.

In the instant case, the commissioner’s conclusion that the decedent’s injury did not arise out of and in the course of his employment is amply supported by the record, including the trial commissioner’s finding that the accident occurred at a place where “there would be no need to travel in either direction between Parson’s Buick, and the home of the decedent” (Finding No. 26); the testimony that the claimant had requested time off from work several days prior to the accident and had not reported to work on July 15, 1991 or July 16, 1991 (Finding No. 22); and the finding that the claimant normally wore a jacket and tie to work but was wearing casual clothes at the time of the accident.

After thoroughly examining the record in this case, it is clear that the commissioner’s decision was dependent upon the weight and credibility afforded the evidence. We will not disturb conclusions which are so based. Neal v. UTC/Pratt & Whitney, 10 Conn. Workers’ Comp. Rev. Op. 163, 1199 CRD-8-91-3 (August 5, 1992). It was within the province of the commissioner to resolve inconsistencies or contradictions in the evidence. Miller v. Kirshner, 225 Conn. 185, 198-99 (1993); Fair, supra, at 538-42 (1988). As the conclusions reached from the facts found did not result from incorrect applications of law or from inferences illegally or unreasonably drawn from those facts, those conclusions must stand. Fair, supra, 539.

In further support of the appeal, the claimant contends that the trial commissioner improperly allowed a videotape of the decedent to be entered into evidence because it was prejudicial and not probative. The claimant contends that the video tape was prejudicial because it dealt with the decedent’s “improper use” of trust funds, and in the tape the decedent “seeks forgiveness” for this wrongdoing. (Claimant’s Brief at p. 14). We find no error. Workers’ compensation commissioners are not bound by common law or statutory rules of evidence, “but shall make inquiry, through oral testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter.” § 31-298 C.G.S.

Even if we were to find that the commissioner admitted irrelevant evidence, we would nevertheless find that it constituted harmless error. We have ruled that:

While irrelevant testimony before a jury may have a tendency to distract attention from the real issues... the same is not true in a trial to a court. In a trial to a court, as opposed to a trial to a jury, the admission and use of irrelevant evidence is generally harmless simply because it is not relevant to the basic issues.

Flowers v. Benny’s of Connecticut, 12 Conn. Workers’ Comp. Rev. Op. 162, 164, 1527 CRB-2-92-10 (April 26, 1994) (citation omitted).

In the instant case, the trial commissioner specifically did not reach the issue of whether or not the claimant’s death was accidental. (Finding G).

The trial commissioner’s decision is affirmed.

Commissioners George Waldron and Robin L. Wilson concur.