State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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Burse v. American International Airways, Inc.

CASE NO. 3986 CRB-02-99-03



MARCH 3, 2000











The claimant was represented by Bart Sayet, Esq., Sayet & Seder, 126 Main Street, P. O. Box 128, Norwich, CT 06360.

The respondents were represented by Michael Finn, Esq., Montstream & May, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the February 26, 1999 Findings of Facts and Award by the Commissioner acting for the Second District was heard September 10, 1999 before a Compensation Review Board panel consisting of Commissioners Stephen B. Delaney, Amado J. Vargas and Ernie R. Walker.


AMADO J. VARGAS, COMMISSIONER. The respondents have petitioned for review from the February 26, 1999 Findings of Facts and Award by the Commissioner acting for the Second District. They contend on appeal that the trier erred by finding that the Connecticut Workers’ Compensation Act covered the injury of the claimant, who was seriously harmed by decompression sickness while attempting to fly a DC-8 airplane from Michigan to Georgia. We affirm the trial commissioner’s decision.

The claimant was employed as a pilot by American International Airways (AIA), a company based in Ypsilanti, Michigan, on March 15, 1994. His mission on that date was to pilot an airplane from Atlanta to Charlotte, North Carolina; from Charlotte to Ypsilanti; and finally, from Ypsilanti back to Atlanta. He and his two fellow crewmen successfully completed the first two legs of that journey, and were preparing to depart on the return trip to Atlanta when the flight engineer, Dale Walker, noticed that a landing light had burned out. Maintenance personnel at the Michigan airport were summoned to change the bulb, which task required them to exit the airplane through an emergency hatch located over the wing. Unfortunately, this doorway was not properly resealed, which later caused the door itself to fall between the fuselage and the cargo, leaving a hole in the aircraft.

The DC-8 took off for Atlanta with the first officer/co-pilot, Victor Morales, controlling the plane, and the claimant operating the communication and navigation systems. When the plane reached an altitude of 10,000 feet above sea level, the first officer alerted the claimant that he could not pressurize the aircraft as required. The claimant testified that, without supplemental oxygen, a person becomes ill in any unpressurized aircraft that ascends above 10,000 feet. He was aware of this risk of decompression sickness at the time of the flight. He also testified, and the trial commissioner found, that AIA’s policy was to require its employees to wear oxygen masks and continue increasing their airplane’s altitude in the event that a craft would not pressurize. Findings, ¶ 22. Thus, after discussing the situation with his crew, the claimant instructed them to put on oxygen masks, and elected to keep the plane moving upward. Findings, ¶ 23-25.

Somewhere between 22,000 and 27,000 feet in altitude, the claimant began to experience symptoms of decompression. He testified (and again, the trier found) that his oxygen mask was not functioning properly. Findings, ¶ 29. At 30,000 feet, he recognized the gravity of his condition, and reversed the throttle of the engines, causing the plane to descend rapidly. The claimant’s next act was an involuntary one: he blacked out. The other crewmen made an emergency landing at the Cincinnati/Northern Kentucky airport in Covington, Kentucky, where the claimant was transported to a hospital in nearby Florence. He was soon transferred to a Cincinnati facility, and was shortly thereafter brought back to Connecticut for further hospitalization.

The claimant was, and continues to be, treated for decompression sickness and its medical sequelae, including “multiple bilateral watershed infarcts secondary to low flow or hypoxic incident, paralysis, stroke, myocardial infarction, cerebral vascular accident, cerebral hemorrhage, bilateral neurologic defects, pulmonary emboli . . . , seizures, pneumonia, hypertension, septicemia, urinary tract infection, pulmonary and cerebral edema, resulting in significant disabling capacity.” Respondents’ brief, p. 15. The claimant remains temporarily totally disabled from these injuries, and has applied for workers’ compensation both here and in Michigan. Although he has received benefits pursuant to Michigan law, his case has not yet been accepted. The respondents have contested the compensability of the claimant’s injury both there and in this forum. In fact, this board has already addressed a preliminary portion of this case.

In our earlier opinion, we reviewed the ruling of a different trial commissioner who had concluded that this Commission had subject matter jurisdiction over the instant injury. Burse v. American International Airways, Inc., 3480 CRB-2-96-12 (Nov. 7, 1997) (trier determined that the claimant’s contract of employment was made in Connecticut, and that his employment relationship with AIA was centered here as well). We found no error in her decision. Following an appeal to the Appellate Court that was dismissed for lack of a final judgment, a subsequent trier’s ruling on the compensability of the claimant’s injury, and a second appeal to this board, the respondents have reiterated their jurisdictional arguments in their brief. As we are satisfied with the analysis in our original decision, we decline to readdress those arguments here. See Bowman v. Jack’s Auto Sales, 54 Conn. App. 289, 293-94 (1999) (absent unusual circumstances, appellate tribunal may decline to reopen a matter that has already been decided). We shall instead restrict our attention to those matters that were not addressed in Burse I.

AIA and its insurer contend that the trial commissioner should have dismissed the instant claim on the ground that the claimant’s injury was occasioned by his own willful and serious misconduct pursuant to § 31-284(a). “By wilful misconduct is meant either intentional misconduct, that is, such as is done purposely with knowledge, or misconduct of such a character as to evince a reckless disregard of consequences to himself by him who is guilty of it.” Federchuck v. UTC/Pratt & Whitney, 15 Conn. Workers’ Comp. Rev. Op. 476, 479-80, 2298 CRB-2-95-2 (Sept. 16, 1996), quoting Gonier v. Chase Companies, Inc., 97 Conn. 46, 55-56 (1921). This is both a factual matter and an affirmative defense, which must be proven by the party seeking to establish that such misconduct substantially caused the injury in question. King v. New Britain 3703 CRB-6-97-10 (Jan. 12, 1999); Paternostro v. Arborio Corp., 3659 CRB-6-97-8 (Sept. 8, 1998), aff’d., 56 Conn. App. 215 (1999); see also, Spatafore v. Yale University, 239 Conn. 408 (1996) (whether injury arises out of and in the course of employment is a question of fact for the commissioner).

The respondents requested numerous changes to the findings in their Motion to Correct. Based upon the testimony of David Ahles, a representative of AIA, and the contents of a report from the National Transportation Safety Board (NTSB) that included written statements by Morales and Walker, the respondents attempted to depict the claimant as an “egotistical, dictatorial, intimidating and rude individual” who irresponsibly insisted upon elevating the altitude of the unpressurized DC-8 despite the objections of his crew, the contrary policy of AIA, and his own appreciation of the risk. See Motion to Correct, p. 4. They stressed that there was no substantive evidence to indicate that the claimant’s oxygen mask had malfunctioned, as it was tested by the United States Air Force and found to be in proper working order. Instead, the respondents urged the trier to conclude that the claimant intended to cause his own decompression sickness by increasing altitude in the unpressurized aircraft, forcing the need for supplemental oxygen—of which he did not avail himself. Id., pp. 5-6, 11-12.

The commissioner chose to deny the respondents’ Motion to Correct in its entirety. In the findings, he had specifically stated that he did not find the statements of Morales, Walker and Ahles credible—in contrast to the claimant’s testimony, which he did find persuasive regarding the circumstances the claimant described, and the actions he took, on the date of his injury. Findings, ¶¶ F-G. The trier was not required to reverse that impression based on the respondents’ motion. It is a fundamental tenet of our law that, in a workers’ compensation case, the trial commissioner is solely and uniquely charged with determining the credibility of the evidence, including the witnesses who appear before him. Palandro v. Bernie’s Audio-Video T.V. & Appliances, 3876 CRB-3-98-8 (Sept. 2, 1999); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). This factfinding authority extends to his consideration of a Motion to Correct. Id. This board may not vitiate the trier’s powers on review by attempting to draw its own conclusions regarding credibility, as our role is not to retry the case. Pilewski v. Danbury Auto Park, 3916 CRB-7-98-10 (Sept. 23, 1999). We may disturb the factual findings on appeal only if they contain acts unsupported by the evidence, or if they omit undisputed material facts. Palandro, supra; Pallotto, supra; Federchuck, supra, 479.

It is apparent from the findings that the trial commissioner considered and rejected the arguments and evidence offered by the respondents. He took the trouble to express his doubts regarding the testimony of David Ahles, which he alone was entitled to evaluate, as well as the written statements of Morales and Walker, which we note were not subject to cross-examination. The trier also cited the standard safety procedure that directs a pilot to decrease altitude should his airplane fail to pressurize properly, and then found the claimant’s actions in this case reasonable based upon the availability of oxygen masks to everyone on the flight. Findings, ¶¶ D-E. The respondents continue to urge on appeal that it is patently reckless for a pilot to take an unpressurized aircraft above 10,000 feet, whether or not supplemental oxygen exists. However, this board possesses no special expertise on the subject of flight safety. We are not in a position to override the commissioner’s decision on that issue, and make such a finding as a matter of law.

In the NTSB report, the probable cause of the accident is described as, “The captain’s improper decision to conduct flight at high altitude in an unpressurized airplane, which resulted in his incapacitation from depressurization sickness. A factor related to the accident was: maintenance personnel failed to properly secure the emergency exit door after it was removed to perform maintenance.” Respondent’s Exhibit 2. The report also states that, “No FAA or company restrictions were found for unpressurized flight when it originated after the dispatch, other than the flight must meet the oxygen requirements of 14 CFR Part 121. The emergency sanction procedures of the FAA approved DC-8 Flight Manual contained procedures for a loss of pressurization at altitude and a descent to lower altitudes. No procedure was found for a loss of pressurization at low altitudes and a voluntary climb to high altitude.” Id. There is no other information on this subject in the report, and no other evidence has been submitted to establish the existence of regulations or policies concerning ascent to high altitudes in an unpressurized aircraft.

Though supportive of the respondents’ position, the NTSB report does not malign the claimant’s conduct as grievously reckless and irresponsible. It merely states that he made a poor decision in piloting the DC-8. Let us presume, arguendo, that AIA had implemented a clearly established policy that prohibited flying at high altitudes in unpressurized aircraft, and that the claimant was aware of that policy. The trier would still be entitled to find—in accord with the claimant’s testimony—that the claimant subjectively believed that the use of oxygen masks would enable him and his crew to complete their mission safely, and that he continued to climb to higher elevations in the expectation that nothing more would go wrong.

In this factual scenario, which the trier has essentially adopted, the claimant’s actions were being taken as a means of furthering his employer’s interests, and were not outside the course of his employment. See Kish v. Nursing & Home Care, Inc., 248 Conn. 379, 385-88 (1999) (claimant’s injury occurred during a trip that was taken to accomplish her “ultimate work” of caring for her patient, even though the employer had an unwritten policy against its nurses picking up items for clients). The record before this board did not compel the commissioner to view the claimant’s decision to increase the altitude of his aircraft as a grave instance of misconduct by which he knowingly and unnecessarily exposed himself to a substantial risk of serious injury. See Federchuck, supra; Nolan v. Brennan Concrete Corp., 11 Conn. Workers’ Comp. Rev. Op. 224, 229-30, 1362 CRD-7-91-12 (Nov. 4, 1993). Instead, the trier reasonably made a different interpretation. He construed the NTSB report in a manner consistent with the claimant’s testimony, which he was entitled to deem credible, and found the claimant’s accidental injury of March 15, 1994 to be compensable. It is the duty of this board to affirm that ruling on appeal.

The trier’s decision is hereby affirmed. To the extent, if any, that the claimant has not received benefits due him, the respondents are required by § 31-301c(b) to add interest onto the unpaid portion of the award.

Commissioners Stephen B. Delaney and Ernie R. Walker concur.

Workers’ Compensation Commission

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State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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