DiLuciano v. State of Connecticut/Military Department

The claimant was represented by Robert Fitzgerald, Esq., Fitzgerald & Prucker, 1127 Tolland Turnpike, Suite 101, Manchester, CT 06040.

The respondent was represented by Philip Schulz, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the June 2, 1998 Finding and Dismissal of the Commissioner acting for the Second 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 June 2, 1998 Finding and Dismissal of the Commissioner acting for the Second District. In that decision the trial commissioner determined that the claimant’s injury which occurred during his trip from his home to his duty station did not occur in the course of his employment, and thus dismissed his claim. In support of his appeal, the claimant argues that the claimant was a “policeman” pursuant to § 31-275(1)(A) and therefore his trip to work occurred during the course of his employment. We affirm the trial commissioner’s decision.

We will first address the respondent’s Motion to Dismiss based upon the claimant’s failure to file a timely brief. In the instant case, the claimant’s brief was due on September 17, 1998 but was not filed until September 30, 1998. Additionally, the claimant filed late Reasons of Appeal on August 7, 1998. Because of the claimant’s late brief, the respondent was certainly inconvenienced in that it had to quickly draft a reply brief prior to oral argument on November 6, 1998. Although this Board has the discretion to dismiss the claimant’s appeal in the instant matter due to failure to prosecute with due diligence under Practice Book § 85-1, we will consider the appeal on the merits.

The trial commissioner found the following relevant facts. The claimant was employed as a Military Department Security Officer for the State of Connecticut/ Military Department. On December 10, 1995, the claimant’s assigned duty station was the Connecticut Air National Guard facility on the grounds of the Bradley International Airport. On December 10, 1995, the claimant was scheduled to work from 4:00 P.M. to 12:00 A.M. On that date at approximately 3:22 P.M. the claimant was involved in a motor vehicle accident while driving his personal vehicle from his home to his assigned duty station. The accident occurred in the town of Union, Connecticut. The claimant did not report to work on December 10, 1995, and was not paid for the time he spent traveling to work. Moreover, the claimant was not considered to be on duty while traveling to and from work.

The claimant’s job duties included providing back-up support for those who protect military aircraft, performing building checks, and making some routine stops. The claimant’s police powers are described in § 29-18 C.G.S. which provides, in pertinent part: “Each such special policeman shall be sworn and may arrest… any person for any offense committed within his precinct.” § 29-18 C.G.S. (emphasis added). The claimant had the power to detain and arrest people only within the jurisdiction of the towns within which the Connecticut Air National Guard facility was located.

The relevant statute in this case is § 31-275(1)(A), which states that “[f]or a policeman and a fireman, ‘in the course of his employment’ shall encompass his departure from his place of abode to duty, his duty, and his return to his place of abode after duty.” Generally, a personal injury sustained at home, or coming from or going to work, is not considered compensable under the Workers’ Compensation Act. See, e.g., § § 31-275(1)(E); Dombach v. Olkon Corp., 163 Conn. 216, 222 (1972). The statutory exception from this rule has been made for policemen and firefighters, presumably because of the emergency “on-call” nature of those professions and the urgency with which these employees are often summoned. Leonard v. Danbury, 3159 CRB-7-95-9 (April 14, 1997), citing 1A Larson, Workmen’s Compensation Law, § 16.17, p. 4-208.44 (1996).

In support of his appeal, the claimant contends that the sole issue is whether the claimant is a “policeman” as that term is used in § 31-275(1)(A). The claimant contends that his job duties include duties which are customarily considered to be police work. The claimant cites State v. Sober, 166 Conn. 81 (1974) and a 1947 opinion of the Attorney General. In State v. Sober, supra, the court explained the “general rule that special policemen are public officers when performing their public duties…” Id. at 90 (emphasis added). In State v. Sober, supra, university police were assaulted by students while they were performing crowd control duties on university property. The court held that the university police, although not members of the regular state police, were “nonetheless within the class sought to be protected by the provisions of the statutes” regarding the assaulting of police officers. We do not find the court’s decision in State v. Sober, supra, to be dispositive of the issue in the instant case.

Similarly, we do not find the Attorney General’s opinion cited by the claimant to be dispositive in the instant case, as that opinion merely determined that the police officers and guards at Bradley Field had the authority to request that certain automobiles be towed away. The opinion states, in pertinent part, that “the police officers or guards at Bradley Field come within the classification of special state policemen and, as such, within the precincts of particular state lands and buildings are vested with the same authority possessed by regular state policemen.” 25 Attorney General Op. 144, 145 (Oct. 6, 1947) (emphasis added).

In the instant case, the trial commissioner specifically found that the claimant was not a “policeman” as that term is used in § 31-275(1)(A). Accordingly, the trial commissioner concluded that the claimant’s injury which occurred during his trip to work did not occur during the course of his employment. See Dombach, supra. The determination of whether the claimant was a “policeman” pursuant § 31-275(1)(A) was a factual determination for the trial commissioner. We will not disturb that conclusion on review as it is not contrary to law and is fully supported by the findings of fact and by the evidence in the record. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); see also Crossway v. Town of Newington, 9 Conn. Workers’ Comp. Rev. Op. 167, 978 CRD-6-90-2 (June 28, 1991) (whether a claimant is a regular member of a municipal police department pursuant to § 7-433c is a question of fact).

The statutory exception from the “going and coming” rule for policemen and firefighters was based upon the emergency “on-call” nature of those professions and the urgency with which the police and fire fighters are often summoned. Leonard, supra. Here, the findings regarding the claimant’s employment as a security officer support the trial commissioner’s conclusion that the nature of his employment was not equivalent to that of a policeman. These findings include that the claimant did not carry a weapon when he left his duty station, that the claimant did not drive a police cruiser or other state vehicle while off duty, that the claimant’s position did not require police training, and that the claimant’s police powers were limited to the towns within which the Connecticut Air National Guard facility was located.