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Paternostro v. Arborio Corporation

CASE NO. 3659 CRB-06-97-08














The claimant was represented by Edward T. Dodd, Jr., Esq. and Ross T. Lessack. Esq., Dodd, Lessack, Ranando, & Dalton, L.L.C., 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410.

The respondent was represented by Nancy S. Rosenbaum, Esq., Law Offices of Nancy S. Rosenbaum, 655 Winding Brook Drive, P. O. Box 695, Glastonbury, CT 06033

This Petition for Review from the August 1, 1997 Finding of the Commissioner acting for the Fifth District was heard March 27, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Michael S. Miles and Amado J. Vargas.


JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the August 1, 1997 Finding of the Commissioner acting for the Fifth District. The trial commissioner found in that decision that the decedent’s death was caused by his own willful and serious misconduct, and that no compensation was to be awarded to his surviving dependents pursuant to § 31-284(a) C.G.S. We affirm the decision of the trial commissioner.

The case involves the following relevant facts. The decedent was employed by the respondent Arborio Corporation on October 14, 1994. The decedent was a member of a road crew whose job was to put up warning signs on the shoulder of the road to indicate traffic patterns during the period in which work was being completed on the highway. On this date, the decedent was assigned to a site on Interstate 84 in the Waterbury area. At this site, the warning signs had been incorrectly placed, and the claimant was asked to correct the problem. At approximately 10:55 PM the claimant drove his company pickup truck to the scene, and parked it on the shoulder of the left lane. The decedent crossed over the highway to fix the signs on the right side of the highway. While returning to his vehicle, the decedent was struck by a car driven by Peter M. Phelan. The decedent was taken to St. Mary’s Hospital in Waterbury where he was pronounced dead shortly afterward.

After the accident, Trooper Thomas Kobus searched the passenger compartment of the company truck the decedent had been driving. He found a thermos cooler containing a plastic cup emitting a strong odor of alcohol, six full cans of beer, and a 200 ml. bottle of Sambuca liquor, which was half full. A toxicological analysis of the decedent was conducted by the Office of the Chief Medical Examiner on the morning after the accident. The results of this test showed that the decedent had a blood alcohol level of .18% at the time of his death. Two of the decedent’s superiors at Arborio Corp. testified that the company had policies prohibiting its employees from crossing a limited-access highway on foot and from consuming alcohol on the job. The trial commissioner found that the claimant’s contravention of these rules constituted willful and serious misconduct, and that his actions in breaking these rules ultimately caused his injuries and his death. Thus, the trier dismissed the compensation claim of the claimant, who has appealed that decision to this board.

The claimant raises three issues on appeal. The first issue is whether the trial commissioner erred by finding that the decedent was intoxicated. Secondly, the claimant contends that the commissioner erred by finding that the decedent’s effort to cross the highway was willful and serious misconduct. Finally, the claimant asserts that the commissioner erred by dismissing the instant claim without first making a finding that the decedent’s intoxication and misconduct were the sole proximate cause of his death.

It is well settled that, “the power and duty of determining the facts rests on the commissioner, the trier of facts . . . . The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). The factual findings themselves cannot be changed unless they are unsupported by the evidence in the record, or unless they omit undisputed material facts. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 71, 1859 CRB-5-93-9 (May 12, 1995). All questions of evidentiary credibility, such as the reliability of a particular witness’ testimony, are solely for the trial commissioner to decide. Kish v. Nursing Home & Care, Inc., 47 Conn. App. 620, 627 (1998).

The trier found that the decedent was intoxicated when he was struck by Mr. Phelan’s car. Finding, ¶ D. The respondents bear the burden of proof when raising the affirmative defense of willful and serious misconduct or intoxication. Liptak v. State, 176 Conn. 320 1978); Federchuck v. UTC/Pratt & Whitney, 15 Conn. Workers’ Comp Rev. Op. 476, 479, 2298 CRB-2-95-2 (Sept. 16, 1996). The respondents met this burden here by providing the results of the toxicological analysis of the decedent’s blood which showed his blood alcohol level to be .18%. Respondent’s Exhibit 1. In addition, Dr. James O’Brien testified that guidelines endorsed by the American Medical Association (AMA) state that a person with a blood alcohol level of .10% or greater is assumed to be impaired to the point of intoxication, and that these guidelines apply to the general population within a 95% probability. Dr. O’Brien further testified that an individual with a blood alcohol level of .18% generally demonstrates impaired judgment, a lack of inhibition, a decreased ability to perceive danger, slower mental processes, and a decreased reaction time once danger has been perceived. Finding, ¶¶ 34-35. The claimant did not introduce any evidence to challenge the validity of the toxicology report and did not offer a reason why the AMA guidelines should not be applied to the decedent. The respondents therefore met their burden of proof and the record clearly supports the trial commissioner’s finding that the decedent was intoxicated at the time of his injury.

The claimant also cites Corcoran v. Corcoran Moving and Storage Inc. 9 Conn. Workers’ Comp. Rev. Op. 237, 1030 CRD-5-90-6 (Oct. 31, 1991), where the claimant was awarded compensation despite having a blood alcohol level of .215% at the time of his accident. The case at bar is easily distinguished from Corcoran, where “there (was) no testimony that the level of blood alcohol affected the claimant’s decision to take evasive action nor the perception of the presence of a sudden emergency requiring it . . . .” Id., 239. It was determined in Corcoran that intoxication was not the cause of the claimant’s car accident, but rather swerving to avoid a deer that had jumped out in front of his vehicle. In the instant case, not only do we have Dr. O’Brien’s testimony on the effect of alcohol on the decedent’s ability to react, but a finding that the intoxication of the decedent was the cause of his injuries. We do not believe that it would be appropriate to disturb this finding on review.

The second issue is whether the actions of the decedent constitute willful and serious misconduct. The determination of whether an act amounts to willful and serious misconduct is “. . . for the Commissioner to make as one of fact, and neither the Superior Court nor this court can on review hold the conclusion of the Commissioner erroneous unless the facts clearly show this.” Mancini v. Scovill Manufacturing Co., 98 Conn. 591, 596 (1923). As noted above, both Timothy Arborio and Ralph Keyes testified that it was against company policy for employees to consume alcohol on the job, and to do so would result in immediate dismissal. Arborio further testified that the company held “tool box talks,” meetings at which safety issues as well as the company policy on drinking on the job were discussed. In addition, Arborio stated that it is against company rules to cross over an interstate highway. Keyes testified that the decedent was a union steward whose responsibilities included communicating to management the safety concerns of the employees. The commissioner found based on this evidence that the decedent had violated the company policies of consuming alcohol on the job and crossing a highway, and that these actions together constituted willful misconduct. Finding, ¶¶ E-F.

The claimant cites cases in her brief in which an employee’s violation of certain workplace rules was not held to amount to willful misconduct under the Workers’ Compensation Act. She argues that these cases demonstrate that willful misconduct requires something more than negligence, i.e., a wrongful intent or an appreciation of the seriousness of the consequences attending the violation of safety rules. See, e.g., Mancini, supra; Knott v. United Smelting & Aluminum Co., Inc., 17 Conn. Sup. 245 (1951). We recognize that the consumption of alcohol on the job and/or the violation of company safety rules do not automatically amount to misconduct under § 31-284(a). However, there was testimony here that the decedent was actually a union steward who was responsible for communicating, and presumably understanding, safety concerns. On the night in question, he was apparently operating a company vehicle on an interstate highway while intoxicated, which is illegal under § 14-227a C.G.S. and punishable by imprisonment, and took it upon himself to dash across I-84 in the dark, which likely constitutes an infraction under § 53-182 C.G.S. It is difficult to imagine that the decedent had no comprehension of the seriousness of his actions given the widespread publicity in recent years against drunken driving and his position as a union steward within the company. We believe that the commissioner was entitled to find that these circumstances amounted to willful misconduct under § 31-284(a), and we will not disturb his decision.

Finally, the claimant appeals the trial commissioner’s failure to find that either intoxication or willful and serious misconduct was the sole proximate cause of the decedent’s death. We do not agree that such a finding was necessary under Connecticut law. The applicable standard for causation in our workers’ compensation cases is the substantial causative factor test. See McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117 (1987). A claimant generally need prove that, within a reasonable degree of medical probability, employment-related events were a substantial factor in producing his injury or disability. See Benlock v. New Haven Terminal/Cilco Terminal, 3034 CRB-4-95-4 (April 25, 1997), aff’d, 48 Conn. App. 250 (1998) (per curiam). In this instance, of course, it is the respondents who have the burden of proving an affirmative defense. They thus needed to show that the decedent’s intoxication or willful misconduct was a substantial factor in causing his accident in order to successfully invoke the exclusionary provision of § 31-284(a).

This “substantial factor” test does not imply that there is a sole proximate cause or even one primary cause for any given injury. The term “substantial” generally means “worthwhile” or “significant,” as opposed to “the most important” or “primary.” See Borkowski v. Sacheti, 43 Conn. App. 294, 303 (1994) (“substantial or significant chance” contrasted with “greater than 50 percent chance”); Black’s Law Dictionary, 5th Ed., p. 1280 (“substantial” defined as “something worthwhile as distinguished from something without value or merely nominal”). In Muldoon v. Homestead Insulation Co. 231 Conn. 469 (1994), our Supreme Court applied the substantial causative factor test to a workers’ compensation case involving asbestos exposure. There they noted that the trier found that asbestos was not the only cause of the claimant’s injury, but that the claimant’s exposure “. . . played the major role in the causation of his asbestosis and colon cancer.” Id., 478.

In the instant matter, it is also possible to conclude that there were multiple causes for the decedent’s death. However, the trial commissioner was certainly entitled to find that the decedent’s willful misconduct was at least a substantial cause of the accident that took his life. The claimant is asking this board to deviate from the established substantial causative factor test, and adopt a new standard. We do not believe grounds exist for us to do so in this case.

The trial commissioner’s decision is hereby affirmed.

Commissioners Michael S. Miles and Amado J. Vargas concur.

Workers’ Compensation Commission

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