Cramer & Cramer v. Herbert W. Cramer, Esq.

HELEN CRAMER, Dependent widow of HERBERT W. CRAMER (Deceased) and Estate of HERBERT W. CRAMER

The claimant was represented by Harold J. Rosnick, Esq., Miller, Rosnick, D’Amico & DeLucia, P. C., 1087 Broad Street, Bridgeport, CT 06604-4038.

The respondents were represented by Sharon Ramsey McLoughlin, Esq., Law Offices of Scott B. Clendaniel formerly known as Clendaniel, Weddal & LaRose, One Civic Center Plaza, P.O. Box 2138, Hartford, CT 06103.

This Petition for Review from the October 16, 1997 Finding and Dismissal of the Commissioner acting for the Fourth District was heard May 8, 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 October 16, 1997 Finding and Dismissal of the Commissioner acting for the Fourth District. She argues on appeal that the trial commissioner erred by dismissing her claim that the decedent’s automobile accident arose out of and in the course of his employment. She has also filed a Motion to Submit Additional Evidence. After careful review, we affirm the trial commissioner’s decision in part, remand for further findings on a related issue, and deny the claimant’s Motion to Submit Additional Evidence.

The decedent , Herbert W. Cramer, was a 70-year-old attorney who worked full-time from an office in his home in Newtown, and from an office in Fairfield that was staffed part-time. He was characterized as a general practitioner who did some estate and will work, and had clients of all ages. He and his wife, who also acted as his secretary, attended a long-term care insurance seminar in Woodbridge on April 11, 1995. As they had met in Milford en route to the seminar, the decedent and his wife drove back to Milford to fetch her car, whereupon each drove back to Newtown separately. En route to Newtown, the decedent was killed in a single-car accident.

The trial commissioner decided that the particular seminar that the decedent attended on the night of his death was not targeted for attorneys to attend, and was geared toward people who had a personal interest in planning for long-term care rather than legal issues. He concluded that the claimant had “not established by a preponderance of the evidence that the deceased was engaged in the course of his employment (profession) while attending with his wife the Jewish Community Center sponsored program on April 11, 1995, and therefore he was not in the course of his employment when he was involved in a one car motor vehicle accident when returning home . . . .” Notably, the trial commissioner did not address the applicability of the “dual purpose” doctrine discussed in Dombach v. Olkon Corp., 163 Conn. 216 (1972). The claimant has appealed that decision to this board.

When this board reviews a trial commissioner’s decision, we cannot disturb his findings unless they have been found without evidence or fail to include undisputed material facts. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 71, 1859 CRB-5-93-9 (May 12, 1995). The commissioner’s legal conclusions must also remain intact unless they result from an incorrect application of the law to the subordinate facts, or from an inference illegally or unreasonably drawn from them. Id., citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). In the instant case, the trier framed the “sole issue” before him as follows: “whether or not Herbert Cramer attended the New Haven insurance seminar as part of his work and therefore was in the course of employment when he died . . . ; i.e., was the decedent on personal or legal business?” Findings, ¶ 6. Virtually all of the testimony at the formal hearing centered on this issue, particularly the decedent’s alleged desire to learn more about the field of elder law, and the nature of the seminar he and his wife attended on April 11, 1995.

It is axiomatic that the trial commissioner, being the trier of fact, had the right to judge the credibility of the documentary evidence and the testimony offered by the three witnesses who took the stand at the formal hearing below. Webb, supra, 70; Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997). The trier is solely responsible for evaluating the demeanor of the witnesses and the substance of their remarks, even where there is no contradictory evidence submitted. Id. The claimant argues in her brief that all of the corrections she unsuccessfully requested in her Motion to Correct were undisputed, and “did not depend on the weight of the evidence or the credibility of witnesses . . . .” In fact, 44 of the 51 proposed subordinate factual findings rely fully on testimony offered by the claimant, Atty. Robert Josovitz (a former friend and business associate of the decedent), and David Guttchen (the project director for the state program that presented the April 11, 1995 long-term care seminar). This board has no power to declare the testimony of any of those witnesses “undisputed” as a matter of law.

Of the remaining corrections, three concerned the decedent’s past attendance at other seminars, and one sought to add a finding that the written materials provided to seminar attendees stated that participants should seek the advice of an attorney. None of those corrections would establish facts likely to affect the outcome of the commissioner’s decision. See Kish v. Nursing & Home Care, Inc., 47 Conn. App. 620, 627 (1998). The final three proposed corrections to the subordinate facts attempt to establish through records of correspondence between the decedent and Marsha Goldstein, the daughter of one of the decedent’s clients, that Attorney Cramer was concerned about augmenting his knowledge of elder law so that he could better represent Goldstein’s mother, Mrs. Indenbaum, in handling her estate. See Claimant’s Exhibit L. These documents do not specifically refer to the April 11, 1995 seminar in question. They could offer circumstantial support for the claimant’s position, but the trier of fact was not required to draw such an inference from them.

The claimant also seeks deletion of two findings on the ground that the respondents conceded that the claimant was returning to his office at the time of the accident. The respondents counter that no such concession was made. The transcript shows that, at the close of his direct examination of the claimant, the claimant’s counsel stated that there had been prehearing discovery regarding the existence of a home office, which was not currently at issue, as “there’s a concession that he [the claimant] had a home office and that’s where he was going back to” when he was killed. Transcript, 20. The respondents’ counsel did not acknowledge this remark in any way, nor did the commissioner. From the context of that remark, we cannot infer that the respondents were conceding that the claimant was returning to work at the time of his death.

The claimant has moved to introduce additional evidence1 consisting of the testimony of Marsha Goldstein regarding a conversation she had with the decedent about his reasons for attending the April 11, 1995 insurance seminar. She also seeks to introduce the testimony of Sandra Lax, a specialist in elder law, regarding the nature of the information presented at that seminar. In order to satisfy the standards of Admin. Reg. § 31-301-9, a party offering additional evidence must demonstrate to this board that such evidence is material and that there was a good reason for its not being presented at the time of the formal hearing. Koscak v. Agentry Employment Systems, 3438 CRB-6-96-10 (Feb. 9, 1998). The simple failure to anticipate the need for otherwise discoverable evidence is generally not held to justify its introduction on appeal. See, e.g., DeMartino v. L.G. Defelice, Inc., 3524 CRB-4-97-1 (Feb. 18, 1998); Pronovost v. UTC/Pratt & Whitney, 3166 CRB-6-95-9 (Feb. 11, 1997).

The claimant explains in her motion that she did not present Goldstein’s testimony at trial because she had no knowledge at that time that the decedent had spoken to Goldstein regarding his purpose for attending the seminar and its subject matter. She further explains that Lax’ testimony was omitted because “it was unknown to the claimant at the time of the hearing.” Given that there were letters from the decedent to Goldstein already in evidence (Claimant’s Exhibit L), and the main topic of discussion was the nature of the April 11, 1995 seminar and the decedent’s reasons for attending it, we cannot say that the claimant could not have anticipated the existence of, or need for, such testimony at the time of the formal hearing. After Guttchen, the respondents’ witness, was finished testifying, the claimant did not seek a continuance to offer her own witness on the issue of the purpose and content of the long-term care insurance seminar in question relative to similar seminars that are geared toward attorneys. Transcript, 62. In fact, counsel stated that the issue seemed so “clear-cut” that proposed findings would not even be necessary. Id. We would be contradicting our holdings in many prior cases if we were to rule that these circumstances constituted an acceptable reason under Admin. Reg. § 31-301-9 for failing to introduce the proffered testimony at the time of trial. See, e.g., DeMartino, supra; Abdule v. Walnut Hill Convalescent, 3383 CRB-6-96-7 (March 25, 1997); Pronovost, supra; Glenn v. Glenn Fence Co., 2132 CRB-1-94-8 (April 10, 1995).

Despite the evidence offered by the claimant, the trial commissioner acted within his discretion in finding that the decedent attended the April 11, 1995 insurance seminar for personal reasons rather than for business purposes. Legally, this board does not have the authority to disturb that factual finding, as we would be substituting our judgment for that of the trial commissioner by doing so. Keenan v. Union Camp Corp., 49 Conn. App. 280 (1998); Kish, supra, 623-24. However, that is not the end of this matter. As noted above, the trial commissioner did not address the “dual purpose” doctrine discussed in Dombach, supra. Even assuming that the decedent’s attendance at the seminar in Woodbridge was solely for personal reasons (as we must, based on the trier’s factual findings), it is established that his accident occurred while driving from Milford to Newtown, where he had both lived and maintained an office. Thus, there is a possibility that the decedent was in the course of his employment at the time of the car crash.

Normally, an injury sustained on a public highway while driving to or from work is not compensable. Dombach, supra, 222. “Excepted from this rule are cases where an employee is on call, cases where the employee’s work requires him to travel, and cases where he is injured while using a public highway in doing something incidental to his employment for the benefit of both himself and his employer, with his employer’s knowledge and approval. Id., 222.” Kolomiets v. Syncor International Corp., 16 Conn. Workers’ Comp. Rev. Op. 234, 236, 3251 CRB-7-96-1 (June 23, 1997). An employee injured while driving from one work site to another would likely fall within at least one of these exceptions, as his work has required him to travel, and his trip is for the benefit of his employer. See Spindler v. Med-Center Home Health Center, 12 Conn. Workers’ Comp. Rev. Op. 130, 132, 1474 CRB-7-92-7 (Feb. 28, 1994).

Here, the decedent had offices in both Fairfield and Newtown. The trial commissioner did not make a finding as to whether the decedent was returning to his home office to pursue business, or to his home to retire for the evening, at the time of the accident. Although, as discussed above, the respondents did not concede the former, this does not automatically imply a finding as to the latter, nor does the trier’s failure to adopt proposed correction #34 (“Mr. Cramer was in route back to his home office. (TR. 20).”). It appears from ¶ 6 of the Findings that the trier assumed that the compensability of the car accident revolved solely around whether or not the decedent attended the seminar in Woodbridge as part of his work. In fact, it is equally important to determine exactly where the decedent’s accident occurred, and where he was going at the time.

If the decedent was driving to his office at the time of his accident, and his mishap occurred at a place where he would also have been had he been driving from his Fairfield office to his Newtown office, then this case would fall within the exceptions discussed in Dombach. This is so even assuming that his trip to Woodbridge via Milford was entirely a personal frolic. Even if the business trip from Fairfield to Newtown would not necessarily have been taken at the exact same time, as long as the decedent would have had to drive from Fairfield to Newtown for business reasons, then that leg of the decedent’s journey would be considered work-related. See Id., 226-28. “When a trip of this kind serves both business and personal purposes, it is a business trip if it would have been made in spite of the failure or absence of the private purpose, because the service to be performed for the employer would have caused the journey to be made by someone, even if it had not coincided with the employee’s personal journey.” Id., 228; see also, Greco v. Greco Auto Parts, 3402 CRB-4-96-8 (Feb. 4, 1998) (CRB applied dual-purpose trip doctrine and held case not compensable, as business portion of trip had ended).

This particular application of the ”dual-purpose” journey rule is well-demonstrated by Neumeister v. Eastern Brewing Corp., 73 N.J. Super 193 (1962), a New Jersey case in which a brewmeister from New Britain was killed several miles from the Hammonton, New Jersey brewery where he worked. Although he was returning from visiting his family in New Britain over the weekend, the decedent had stopped in Mt. Vernon, New York (116 miles from Hammonton) on crucial employment business at the outset of his trip. “Assuming that Neumeister departed from the scope of his employment on an errand of his own, whenever he left New York or Mt. Vernon to visit his family in Connecticut, and while he was in Connecticut, that departure from the employment was ended when he returned to the road which he would have followed had he proceeded from New York or Mt. Vernon directly to Hammonton.” Id., 198. The New Jersey court found that the decedent was killed in the course of his employment, and that his widow was entitled to workers’ compensation benefits.

The law as stated in Neumeister mirrors the law of Connecticut as it should be applied here. This case must be remanded to the trial commissioner for a determination as to whether the decedent was driving back to Newtown for business or personal reasons (or both), and if so, whether his accident occurred in a place where he could normally have been while driving to and from his Fairfield office. The commissioner should apply the law as discussed above, and as stated in Dombach, supra, and Neumeister, supra. The findings concerning the purpose of the seminar in Woodbridge are affirmed, as are the legal conclusions attendant with those findings. The Motion to Submit Additional Evidence is denied.

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

1 The trial commissioner was presented with this motion on November 11, 1997, subsequent to the filing of the petition for review with this board. The trial commissioner heard the motion on December 17, 1997, and declined to consider it on the ground that it would be more properly ruled on by this board. He also declined to reopen his decision pursuant to § 31-315, on the ground that such a motion was out of order at that time, and that the evidence offered by the claimant was cumulative. See Transcript, p. 5, 18-19. BACK TO TEXT