Setterstrom v. C.R. Klewin, Inc. et al.

CASE NO. 3643 CRB-02-97-07

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 12, 1998

PAUL SETTERSTROM

CLAIMANT-APPELLANT

v.

C.R. KLEWIN, INC.

EMPLOYER

and

HARRY GRODSKY & CO., INC.

EMPLOYER

and

AETNA CASUALTY & SURETY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by John A. Cotter, Esq., Cotter, Greenfield, Manfredi & Lenes, P.C., 223 West Town Street, Norwich, CT 06360 and Jeremy D. Booty, Esq., One Union Plaza, Second Floor, P.O. Box 1109, New London, CT 06320-1109.

The respondents were represented by Richard Aiken, Esq., and Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

This Petition for Review from the July 17, 1997 Finding and Dismissal of the Commissioner acting for the Second District was heard February 20, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the July 17, 1997 Finding and Dismissal of the trial commissioner acting for the Second District. In that decision, the commissioner concluded that an assault upon the claimant occurred in the course of his employment but did not arise out of his employment, and thus was not compensable. Specifically, the trial commissioner concluded that the claimant’s fall from a ladder was caused by his taunting remarks to a co-worker, which culminated in the co-worker’s assault of the claimant, and that the assault was not exacerbated by his employment. In support of his appeal, the claimant contends that the trial commissioner’s conclusion is not supported by the factual findings. Specifically, the claimant contends that the proximate cause of his injury was the fall from the ladder, which was a risk incidental to his employment.

The trial commissioner found the following relevant facts. On September 16, 1995, the claimant was employed as a plumber by the respondent employer at a construction site. The claimant was working that day with several co-workers, including John Brancato, who had recently been hired by the employer. On September 16, 1995, the claimant called Brancato “Buckwheat” on several occasions. Brancato specifically challenged the claimant on September 16, 1995, in front of co-workers, not to continue calling him “Buckwheat.” Furthermore, Brancato, unsmiling, threatened the claimant with the statement, “If you say that again, I’ll have to punch you.” (Finding No. 8). The claimant then began climbing an eight foot step ladder, and as he did so, he replied to Brancato who was working nearby as follows: “Okay, Buckwheat, do what you have to do!” (Finding No. 9). The claimant then found himself on the floor, thrown from the ladder, having sustained serious injuries.

A co-worker, Neil Brown, confirmed that the claimant was thrown from the ladder by Brancato. Brown recollected that the claimant’s initial reaction after falling to the ground was to say, “Why did you do that, John?” Brancato was subsequently terminated after admitting the assault on the claimant as being due to the claimant’s calling him “Buckwheat.” The claimant admitted that he had called Brancato “Buckwheat” on previous occasions prior to September 16, 1995. However, Brancato had made no complaints to the employer regarding this issue. The trial commissioner concluded that nothing in the claimant’s daily work “played any part in the poor relationship exhibited between the claimant and John Brancato which ended in the assault by John Brancato as a response to the claimant’s taunting him by using the nomenclature of ‘Buckwheat’ after being warned by John Brancato to stop or an assault was inevitable.” (Finding D).

In support of his appeal, the claimant contends that “injuries resulting from a fall are compensable, even if the fall is set in motion by a non-work related source, if the worker was put at risk for the fall as a result of conditions of his employment.” (Claimant’s Brief at p. 3).

The Connecticut Supreme Court has addressed the issue of whether an assault upon an employee which occurs during the course of the employment is compensable under the Workers’ Compensation Act. The court stated:

When the animosity or dispute that culminates in an assault is imported into the employment from claimant’s domestic or private life, and is not exacerbated by the employment, the assault does not arise out of the employment....

Fair v. People’s Savings Bank, 207 Conn. 535, 542 (1988) (quoting Larson’s Workmens’ Compensation Law, §11.21).

The court further stated:

(W)hen the assault is unconnected with the employment, or is for reasons personal to the assailant and the one assaulted, or is not because the relation of employer and employee exists, and the employment is not the cause, though it may be the occasion, of the wrongful act, and may give a convenient opportunity for its execution, it is ordinarily held that the injury does not arise out of the employment.

Fair, supra, p. 542 (quoting 82 Am Jur. 2d §329, pp. 126-27), (emphasis added).

In addition, the court addressed the exception to the above rule where the employment facilitates an assault “which would not otherwise be made.” Fair, supra at p. 544, quoting Larson’s Workmens’ Compensation Law, §11.00.

Moreover, whether a workplace assault is compensable depends upon the following analysis:

If the injury results as a natural consequence of the conditions of the employment, recovery of compensation is not necessarily defeated by the fact that it is suffered in the course of a fight in which the claimant becomes involved with another employee. The question is whether taking all the facts into consideration the conditions of employment are the legal cause of the injury.... The personal injury must be the result of the employment and flow from it as the inducing proximate cause. The rational mind must be able to trace the resultant personal injury to a proximate cause set in motion by the employment and not by some other agency, or there can be no recovery.... That the injury is immediately caused by a fight between two employees does not necessarily break the chain of causation between the conditions of employment and the injury where it results from the normal reactions of human nature due to conditions under which the men are thrown together in a common employment....

If, however, ... the fight results solely from a feeling of anger or hatred by one employee for another or from ill-will between them, though it occurs in the course of the employment, it does not arise out of it.... In such a situation the principle is the same as that applied where compensation is denied because of injury resulting from horseplay between employees.... In such case he has voluntarily departed from the duties of his employment and embarked upon an enterprise of his own not contemplated by the terms of his employment....

Stulginski v. Waterbury Rolling Mills Co., 124 Conn. 355, 361-62 (1938) (citations omitted); see also Nolan v. Brennan Concrete Corp., 11 Conn. Workers’ Comp. Rev. Op. 224, 1362 CRD-7-91-12 (Nov. 4, 1993).

We have explained that “the reason for or cause of the workplace assault is the key fact in determining whether the fight and the resulting injury arose out of the employment.” Nolan, supra, at 228, (citations omitted). Assaults are considered to arise out of the employment “if the reason for the assault was a quarrel having its origin in the work.” Id. citing Willis v. Taylor & Fenn Co., 137 Conn. 626 (1951).

In the instant case, the claimant argues that the claimant’s employment which required him to use a step ladder was the proximate cause of the assault. Whether the trier erred in finding that the claimant’s injury arose out of and in the course of his 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). In the instant case, we find ample evidence in the record to support the trial commissioner’s determination that the assault upon the claimant was for reasons personal to the assailant and the claimant, and was unconnected with the claimant’s employment. Specifically, the trial commissioner found that the proximate cause of the assault was the claimant’s “taunting” of the assailant. (Finding G).

Because the trial commissioner found that the proximate cause of the assault was the claimant’s “taunting” of the assailant, the circumstances are distinguishable from the case of Beaubien v. Chesebrough Ponds, U.S.A., 3386 CRB-3-96-7 (Jan. 22, 1998). In that case, a co-worker hit the claimant’s knee with a hammer, and the injury was found to be compensable where “the claimant did not depart from her duties nor did she provoke the incident with the co-worker.” Id. The case at hand is also factually distinguishable from Stulginski, supra, where the claimant “was not the aggressor but was attacked primarily because of the smoke annoying his fellow workman, which smoke was a direct result of a customary procedure....” Stulginski, supra, at 357.

The decision of the trial commissioner is affirmed.

Commissioners Donald H. Doyle, Jr., and Michael S. Miles concurs.