Vizzini v. City of Norwalk

CASE NO. 3874-CRB-04-98-08

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 30, 1999

THOMAS VIZZINI

CLAIMANT-APPELLEE

v.

CITY OF NORWALK

EMPLOYER

RESPONDENT- APPELLANT

APPEARANCES:

The claimant was represented by Edmund Collier, Esq., 61 Cherry Street, Milford, CT 06460.

The respondent was represented at the trial level by Sara LeTourneau Oley, Assistant Corporation Counsel, City of Norwalk, City Hall, Norwalk, CT 06856. On appeal the respondent was represented by Jason M. Dodge, Esq., and Margaret Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the August 10, 1998 Finding and Award of the Commissioner acting for the Fourth District was heard April 30, 1999 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent-employer has petitioned for review from the Commissioner acting for the Fourth District’s August 10, 1998 Finding and Award. In that Finding and Award the trial commissioner concluded that the injuries sustained by the claimant on January 12, 1993 when he slipped and fell at a McDonald’s rest area were compensable. The ultimate issue presented for review by the respondent’s appeal is whether the trial commissioner erred in concluding that the injuries sustained by the claimant arose out of and in the course of his employment.

The pertinent facts were as follows. The claimant was employed by the respondent municipality and on the day of his injury was scheduled to attend a meeting in Hartford with his supervisor. The claimant made arrangements to drop his car off for service at a dealership in Fairfield. The claimant planned to meet his supervisor at the dealership, pick up a loaner car and continue their trip to the meeting in Hartford.

On the morning of January 12, 1993, a winter storm was in progress. Prior to leaving his house the claimant called his supervisor to ascertain if the meeting was going forward. The supervisor advised that she was unaware of the meeting’s cancellation and presumed that the meeting would go forward as scheduled. The claimant proceeded to the dealership, dropped off his car for service and picked up the loaner car. At approximately 8:45 a.m. the claimant telephoned his supervisor who advised him that the meeting in Hartford was cancelled.

The claimant then started his trip to Norwalk via Route 95. However, shortly after proceeding on Route 95 it became clear that the weather had severely restricted traffic’s flow on the highway. The claimant stopped at the McDonald’s rest area and called his supervisor to get alternate travel directions to return to Norwalk due to the Route 95 traffic jam. While at the McDonald’s rest area the claimant purchased a cup of coffee1, and telephoned his supervisor for directions for an alternative route. As claimant returned to his car, he slipped and fell due to the wintry precipitation, and sustained the injuries which gave rise to this claim.

The respondent contested liability and hearings were held on the issue of liability. The trial commissioner concluded that the claimant’s injuries arose out of and in the course of his employment. On appeal the respondent contends that the claimant’s injuries did not occur within the scope of his employment.

On a number of occasions our Supreme and Appellate Courts have articulated the applicable legal standard in cases like the instant matter. In Kolomiets v. Syncor International Corporation, 51 Conn. App. 523 (1999), the Appellate Court reviewed:

“As is the standard of review, the law governing eligibility for workers’ compensation is also well established. It is an axiom of [workers’] compensation law that awards are determined by a twopart test. The [claimant] has the burden of proving that the injury claimed arose out of the employment and occurred in the course of the employment. There must be a conjunction of [these] two requirements. . . to permit compensation. . . . McNamara v. Hamden, [176 Conn. 547, 550, 398 A.2d 1161 (1979) ]. The former requirement relates to the origin and cause of the accident, while the latter requirement relates to the time, place and circumstances of the accident. Id.” (Emphasis in original; internal quotation marks omitted.) Mazzone v. Connecticut Transit Co., 240 Conn. 788, 79293, 694 A.2d 1230 (1997).

“[T]o establish that [the] injury occurred in the course of employment, the claimant has the burden of proving that the accident giving rise to the injury took place ‘(a) within the period of employment; (b) at a place [he] may reasonably [have been]; and (c) while [he was] reasonably fulfilling the duties of the employment or doing something incidental to it.’ “ Id., at 793.

Kolomiets at 527-28.

Recently, our Supreme Court reasserted that questions concerning whether an employee “was reasonably fulfilling the duties of the employment or doing something incidental to it” is a matter largely determined by the trier’s factual findings. In Kish v. Nursing and Home Care,248 Conn. 379, 384 (1999) the Supreme noted:

We insulate the work of the commissioner by affording it a substantial quantum of deference. “[T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . [T]he conclusions drawn by [the commissioner] 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. . . . Moreover, the fact that the inference may involve an application of a broad statutory term or phrase to a specific set of facts does not result in any greater scope of judicial review.” (Citation omitted; internal quotation marks omitted.) Crochiere v. Board of Education, 227 Conn. 333, 347, 630 A.2d 1027 (1993); accord Mazzone v. Connecticut Transit Co., supra, 240 Conn. at 792, 694 A.2d 1230; Spatafore v. Yale University, supra, 239 Conn. at 418, 684 A.2d 1155 (“[t]he determination of whether an injury arose out of and in the course of employment is a question of fact for the commissioner”); Fair v. People’s Savings Bank, 207 Conn. 535, 53940, 542 A.2d 1118 (1988); Herbst v. Hat Corp. of America, 130 Conn. 1, 4, 31 A.2d 329 (1943).

In support of the trier’s conclusion that the claimant’s injury arose out of and in the course of his employment, the trier found that the claimant was within the period of his employment. We note that the trier specifically found that the claimant’s work hours were 8:30 a.m. - 5:00 p.m. and the claimant’s departure from the dealership was within that time frame. Thus, the first prong of the scope of employment determination was satisfied.

As we have noted on other occasions, the procedural vehicle to challenging a trier’s supporting factual findings is through the use of a Motion To Correct. The appellant has availed itself of this practice. The respondent contends in its Motion To Correct that the trier’s Finding in ¶14 is without basis in the evidence. In ¶14 the trier found, “But for the meeting in Hartford, the claimant would not have scheduled the repair work for that date.” In our review of the record we note the following colloquy on direct examination:

Q: Let me ask you, but for the fact that you had to go to Hartford that day, would you have had your car serviced that day?

A: Yes. I mean, I would have had it serviced, but I was specifically linking that with going to Hartford.

March 30, 1998 Transcript p. 6.

The trier’s inference that the second prong was satisfied, i.e, the claimant was at a place where he may reasonably be, is thus, reasonable. As is often the case in an appellate review of these issues, the third prong is the one most often challenged and the one on which the ultimate result turns.

The respondent attacks the trial commissioner’s Finding in ¶ 15, “Had the claimant known that the meeting was cancelled prior to his leaving Norwalk he would not have gone to Fairfield for the repair work.” Again, we conclude that the trier’s finding was a reasonable inference based on the evidence before her.

The remaining factual findings of which the respondent seeks correction, we conclude are not material and do not compel a different conclusion by the trial commissioner. As this board has noted on prior occasions:

On review of the denial of a Motion to Correct, this board may not alter a commissioner’s Findings unless they are unsupported by the evidence or unless they fail to include admitted or undisputed material facts. Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 152, 1608 CRB-1-92-12 (Feb. 6, 1995). A Motion To Correct also may be denied properly where the corrections are immaterial because the outcome of the case would not be altered by the substituted findings. Id.; Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994).

Fusco v. J.C. Penney Company, 1952 CRB-4-94-1 (March 20, 1997). Thus, we uphold the trier’s denial of the respondent’s Motion To Correct.

Finally, we note the appellant argues that the factual circumstances in this case fall within the “coming and going” exception to compensability. That general principle is that an injury occurring on a public highway is not compensable unless it falls within one of four exceptions set by case law. The case most often relied on in consideration of such issues is, Dombach v. Olkon Corporation, 163 Conn. 216, 221-22 (1972). The four exceptions set out in Dombach, supra, are:

(1) If the work requires the employee to travel on the highways; (2) where the employer contracts to furnish or does furnish transportation to and from work; (3) where, by the terms of his employment, the employee is subject to emergency calls and (4) where the employee is injured while using the highway in doing something incidental to his regular employment, for the joint benefit of himself and his employer, with the knowledge and approval of the employer.

Id. at 222.

The appellant contends that the trier could not have reasonably concluded that the claimant’s trip was for the joint benefit of himself and his employer. Applying the above standard in light of the Supreme Court’s opinion in Kish, supra, we conclude that the trier’s conclusion is consistent with the Supreme Court’s holding in Dombach, supra.

We therefore, affirm the trial commissioner’s August 10, 1998 Finding and Award.

Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.

1 The respondent as part of its Motion To Correct sought to include the claimant’s purchase of a breakfast sandwich along with the cup of coffee. We do not think that the addition of the breakfast menu item is material and its addition could hardly compel a different outcome. See our discussion in the text of this opinion regarding appellate review of a trier’s denial of a Motion To Correct. BACK TO TEXT