Hannon v. Independent Office Installations

The claimant was represented by Louis Crisci, Jr., Esq., Kolb & Crisci, 49 High Street, East Haven, CT 06512.

The respondents were represented by Nancy E. Berdon, Esq., Sizemore Law Offices, One Civic Center Plaza, 3-cc Hartford, CT 06103.

This Petition for Review from the February 5, 1998 Finding and Dismissal of the Commissioner acting for the Third District was heard November 6, 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 February 5, 1998 Finding and Dismissal of the Commissioner acting for the Third District. In that decision the trial commissioner concluded that the claimant’s motorcycle accident which occurred en route to a job site did not arise out of or during the course of his employment. In support of his appeal, the claimant argues that the trial commissioner erroneously found that the claimant was not compensated for travel time at the time of his accident. We find no error.

The trial commissioner found the following relevant facts. On June 9, 1995, the claimant was not scheduled to work because he had taken the day off for personal business. After completing his personal business on that day, he called his boss who told him that he could report to the employer’s work site in Simsbury. While driving his motorcycle on his way to the job site, the claimant was injured in a motor vehicle accident. Normally the employer provided transportation from its premises in West Haven to the job site and back in a company van. If the employer directed an employee to use his personal vehicle to travel to a job site, the employer would pay mileage. The claimant was not paid mileage on June 9, 1995. The trial commissioner further found that on June 9, 1995, the claimant was not required to be on the job site in Simsbury, nor was he performing a special errand or mission for the employer. The trial commissioner found that the claimant was not injured while doing something which was incidental to his regular employment for the joint benefit of himself and his employer. The trial commissioner concluded that the claimant’s injury did not arise out of or in the course of his employment.

In support of his appeal, the claimant contends that the accident arose out of and in the course of his employment because the claimant was paid for his travel time to the job site when the injury occurred. The claimant further contends that the claimant normally would have also been compensated for mileage but was not so compensated because he never reached the job site due to the accident. Because the claimant has not filed a motion to correct, we are limited to the findings of the trial commissioner. Spindler v. Med-Center Home Health Center, 12 Conn. Workers’ Comp. Rev. Op. 130, 132, 1474 CRB-7-92-7 (Feb. 28, 1994); see also Vanzant v. Hall, 219 Conn. 674, 681 (1991). The trial commissioner specifically found that the employer’s operations manager testified that when an employee uses his personal vehicle he may be paid mileage based on a complex formula, but would not be paid for travel time. (Finding No. 10). This finding is supported by the record.1

“In 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).

Ordinarily, an injury sustained on a public highway while going to or from work is not compensable. Dombach, supra; Rivera v. B & D Molded Products, 9 Conn. Workers’ Comp. Rev. Op. 76, 77, 912 CRD-4-89-9 (Feb. 20, 1991). This is because employment normally does not commence until a claimant reaches the employer’s premises and because the route traveled by the employee is usually within his discretion, unfettered by any control on the part of the employer. Dombach, supra; see also McKiernan v. New Haven, 151 Conn. 496, 498-99 (1964); Irving v. Hoyland, 4 Conn. Workers’ Comp. Rev. Op. 25, 249 CRD-7-83 (March 4, 1987). The court in Dombach, supra, set forth four exceptions:

In the instant case, the claimant’s trip to the job site was similar to an ordinary trip to and from work. The claimant was not making a special, employment-related trip that deviated from his normal duty to drive to and from work every day. Compare Ballester v. K & D Auto Body, Inc., 5 Conn. Workers’ Comp. Rev. Op. 35, 578 CRD-3-86 (April 6, 1988). The claimant’s contention that the claimant received compensation for the time spent traveling on the date of his injury does not somehow alter the character of the claimant’s ride to work. See Orsinie v. Torrance, 96 Conn. 352 (1921).

In Orsinie, the employer added a trolley fare to the claimant’s daily wages as part of the weekly pay roll, although the claimant was not bound to use the trolley, but could use any means of going to and from work. Our Supreme Court explained: “As soon as he left the employer’s premises, the contract of employment ceased to operate, directly or indirectly, either as controlling his movements or as affecting the hazards to which he was subjected.” Id. at 355. Similarly, in the instant case, the employer had no control over the claimant’s movements or affecting the hazards of the claimant’s trip from his home to the job site in his personal vehicle. As none of the four exceptions set forth in Dombach, supra, apply in the instant case, the trial commissioner’s decision must be affirmed.

The trial commissioner’s decision is affirmed.

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

1 The employer’s operations manager testified that the claimant, if he reported to a job site late due to personal reasons, would begin earning his hourly wage when he reached the job site. The employer’s operations manager further testified that the employer has a rule whereby it pays a minimum of four hours pay, and thus if the claimant had reached the job site at 11:00 A.M. and the crew left the job site at 2:30 P.M., the claimant would nevertheless be paid for four hours of work due to the four hour minimum pay rule. (9/25/97 TR. at p. 44-45). BACK TO TEXT