Smeraglinolo v. Diocese of Bridgeport Cardinal Sheehan Center

The claimant was represented by William T. Blake, Jr., Esq., 295 Main Street, West Haven, CT 06516.

The respondents were represented by Thomas G. Cotter, Esq., Berchem, Moses & Devlin, 75 Broad Street, Milford, CT 06460.

This Petition for Review from the August 25, 1999 Finding and Award of the Commissioner acting for the Fourth District was heard June 16, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the August 25, 1999 Finding and Award of the Commissioner acting for the Fourth District. They contend on appeal that the trier erred by finding that the decedent was acting as an employee of the respondent Diocese of Bridgeport/Cardinal Sheehan Center at the time of his fatal heart attack. We affirm the trial commissioner’s decision.

The decedent was employed by the Diocese of Bridgeport for 18 years, with the latter part of his career spent acting as a supervisor and physical education instructor at the Cardinal Sheehan Center (Center). He had a pre-existing heart condition, and had undergone bypass surgery in 1991. Normally, the decedent worked at the Center from 8:00 a.m. to about 5:00 p.m. on weekdays. During the fall basketball season, he would work full days on Saturdays and Sundays as well. Also, he was certified to officiate grammar school and high school basketball games, and was on duty during some evenings refereeing games and supervising the gym, which was in the same building as his offices. He would be present whenever functions were occurring at the Center. In fact, he had keys to the building containing the gymnasium and pools, and was listed as one of the people who should be contacted at home in the event of an emergency at the Center. This is understandable, as he was trained in CPR and in first aid.

On the night of September 17, 1996, the decedent’s office at the Center was open, as he was there to officiate a pair of basketball games. The participants in these games were high school boys who belonged to a fall hoops league that was sponsored and run by the Center. As an employee of the Center, the decedent was among those responsible for organizing and operating this league. He and another man, Dennis Danko, shared the specific responsibility of assigning referees for their games, and the referees whom they obtained, including the decedent himself, were each given a $15 check per game by the Center. These referees did not perform their duties at the Center pursuant to a written contract. Most of them, including the referee who worked alongside the decedent on the night of September 17, 1996, were not full-time employees of the Center.

The decedent was a regular employee of the Center, of course. He was responsible for maintaining the safety and security of the building and the people inside of it, and was often there on weeknights even if he wasn’t refereeing a game. While acting as a basketball referee, he continued to have greater responsibilities than those of the outside referees who were there solely to officiate games. He would assist in setting up the scoreboard, checking the game clocks, and verifying that all necessary personnel were present to run the games. Occasionally he would collect money at the door, or clean up afterward. He would also keep track of the public’s activities during the games, as the Center is a very large building with numerous indoor and outdoor basketball courts, a swimming pool, game rooms, a computer room, and a library. Though no written employment contract existed between the decedent and the Center, he was in a managerial position and was a salaried employee. His former superior, George Fasolo, had established a written job description of the decedent’s duties while serving as executive director of the Center. Claimant’s Exhibit F.

On the night in question, the decedent began officiating the first scheduled basketball game at 5:30 p.m. It was hot that evening, the gym had no air conditioning, and the job of refereeing involved a lot of physical exertion (as it normally does, for the officials must run up and down the basketball court in order to closely monitor the players’ actions). During the second game, the decedent asked to be excused, and returned to his office, where he collapsed and later died due to cardiac arrest. There is little dispute that the decedent’s heart attack was directly caused by the strain of his officiating activities, whether or not they substantially aggravated his underlying heart condition. See Findings, ¶ 41-42.

The respondents instead contended that the decedent’s refereeing activities fell outside the scope of his employment with the Center. However, they were unable to persuade the trial commissioner to agree with their position. He ruled that the decedent was a salaried supervisor acting in the course and scope of his employment on the night of September 17, 1996 when he suffered cardiac arrest, and ordered that the decedent’s widow and minor dependent children receive benefits under § 31-306. The respondents have appealed that decision, along with the denial of their Motion to Correct.

A claimant seeking to establish entitlement to workers’ compensation benefits bears the burden of proving that his injury arose out of his employment and occurred in the course of that employment, as per § 31-275(1) C.G.S. Herman v. Sherwood Industries, Inc., 244 Conn. 502, 505 (1998); McNamara v. Hamden, 176 Conn. 547, 550 (1979). The first part of that standard relates to the origin and cause of the accident, while the latter part relates to the time, place and circumstances of the accident. Herman, supra, 506; Mazzone v. Connecticut Transit Co., 240 Conn. 788, 792-93 (1997). As the medical cause of the decedent’s heart attack is not in dispute here, the only issue we truly need concern ourselves with is the “course of employment” test. There must be sufficient evidence in the record to support a finding that the physical exertion that caused the decedent’s cardiac arrest took place (a) within the period of his employment; (b) at a place he could reasonably have been, and (c) while he was reasonably fulfilling his employment duties, or doing something incidental to them. DeMooy v. Easter Seal Society of CT, Inc., 3852 CRB-4-98-7 (Nov. 2, 1999); Kish v. Nursing & Home Care, Inc., 248 Conn. 379, 383 (1999); Herman, supra, 506.

We also remind the parties that the trial commissioner possesses the authority to draw inferences from the subordinate factual findings in deciding whether the elements of this test have been established. Davis v. State of Connecticut/University of Connecticut, 3822 CRB-2-98-5 (Aug. 17, 1999). On review, we need only ascertain that there is evidence in the record to support the inferences that the trier drew, and that he correctly applied the law in making his ruling. Id., citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Any choice that involves a judgment as to the relative credibility of statements attested to by various witnesses is a choice that resides purely with the trier of fact. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).

The respondents contend that the single relevant issue in this case is the following question: “Did the Diocese of Bridgeport have the right to control the means and methods of Mr. Smeraglinolo’s officiating of Fall League basket ball games?” Brief, 3. They assert that such a right to control did not exist, and that the decedent was thus acting as an independent contractor on the evening of September 17, 1996. Though the hiring entity’s right to control the means and methods of a worker’s performance of services for that entity is the essential ingredient in an employer-employee relationship; Kaliszewski v. Weathermaster Alsco Corp., 148 Conn. 624, 629 (1961); we do not agree that the respondents’ formulation of this question accurately measures the existence of an employment relationship under the instant set of facts. The findings establish that the rules governing the decedent’s on-court decisionmaking (e.g., when to call fouls) while acting as a referee did not embrace the totality of his duties while present at the Center that evening.

As the trial commissioner found in ¶ 26 of his findings, the decedent played a different role than did the outside referees who simply came to the Center to officiate basketball games. In essence, as long as he was present at the Center, he was expected to assume sole or shared responsibility for the general operation and safety of the building. His duties as a salaried employee did not end the moment he slipped his referee’s whistle over his neck. There is no reason why the supplementary income he received from refereeing basketball games would have precluded him from serving concurrently as a Center employee, and being subject to the general control of his employer with regard to the procedures he was expected to follow regarding the operation of the Center.

As the basketball league itself was sponsored and run by the Center, and all the games played in that league were held at the Center, the decedent could rationally be expected to maintain his status as a salaried Center employee while performing the additional duty of officiating youth basketball games. In fact, his presence at the Center would seem to be advisable from the employer’s perspective. For reasons of safety and security, the Center would naturally derive a benefit from having as many salaried supervisory personnel as possible at the facility while these games were in progress and the building was open. The trial commissioner reasonably found as much. Findings, ¶ H. We conclude, therefore, that his finding regarding compensability must be upheld, as it is supported by sufficient evidence. DeMooy, supra; Davis, supra.