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CASE NO. 4251 CRB-3-00-6
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
SEPTEMBER 13, 2001
DAREK EL AYOUB
SPECIAL TESTING LABORATORIES
HARTFORD INSURANCE GROUP
The claimant was represented by Pasquale Young, Esq., Berdon, Young & Margolis, P.C., 132 Temple Street, New Haven, CT 06510.
The respondents were represented by Richard L. Aiken, Jr., Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.
This Petition for Review from the June 8, 2000 Finding and Dismissal of the Commissioner acting for the Third District was considered on April 27, 2001 by a Compensation Review Board panel consisting of Chairman John A. Mastropietro and Commissioners George A. Waldron, Ernie R. Walker.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant appeals from the Commissioner acting for the Third District’s June 8, 2000 Finding and Dismissal of Claim. In that Finding and Dismissal the trial commissioner concluded that the claimant’s injury resulting from a motor vehicle accident did not arise out of and in the course of his employment.
The pertinent facts in this matter are as follows. The claimant, who lived in Hamden, was employed by the respondent-employer as an inspector on a construction project. The particular job site at which the claimant was assigned was a 76 acre parcel in Plainville, CT designated for development as a shopping area. On the morning of August 2, 1999, the claimant left his home at approximately 6:20 am to drive to the job site. After driving for about 20 minutes the claimant realized he had forgotten his beeper. Whereupon the claimant returned to his home, retrieved his beeper and again proceeded to drive to the Plainville job site.
In the course of his second attempt to drive to his assigned job site, the claimant was involved in a motor vehicle accident and sustained a fractured patella. It is the claimant’s contention that at the time of the accident he was in the course of his employment. However, the commissioner did not so conclude and thus, dismissed claimant’s claim.
In order to prevail in a claim for Workers’ Compensation benefits the claimant must prove that the injury for which he seeks compensation arose out of and in the course of the employment. As our Supreme Court reiterated in Kolomiets v. Syncor International Corp, 252 Conn. 261, 267 (2000):
“In order to 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 the employment; (b) at a place [the employee] may reasonably [have been]; and (c) while [the employee was] reasonably fulfilling the duties of the employment or doing something incidental to it. . . . Mazzone v. Connecticut Transit Co., 240 Conn. 788, 793 (1997).” (Internal quotation marks omitted.) Kish v. Nursing & Home Care, Inc., 248 Conn. 379, 383 (1999). (Citations enhanced).
Additionally, our Supreme Court noted in Dombach v. Olkon Corporation, 163 Conn. 216, 222 (1972):
An injury sustained on a public highway while going to or from work is ordinarily not compensable. . . . There are a number of exceptions to the ordinary rule . . . (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. (citations omitted)
The claimant premises his claim as to the compensability of his injury on his assertion that; (1) the employer furnished transportation and (2) at the time of the accident he was engaged in an activity in furtherance of the employer’s business. In support of his claim that the employer furnished transportation, the claimant relies on the employer’s payment of an allowance for the use of the claimant’s car. That sum was computed at the rate of 80 miles per day at 20 cents per mile and was paid regardless of the actual mileage driven by the claimant. See Findings ¶¶ IV (15-16).
The trial commissioner found; (1) the claimant was paid hourly from the time he arrived at the job site, (2) the claimant was not paid wages while traveling to or from the job site. Thus, the trier concluded that the claimant was not furnished transportation to and from work. See Findings ¶ J.
When an appellant challenges the trial commissioner’s factual findings, the appellant must move to correct the trier’s factual findings. In the instant matter, the claimant-appellant filed a Motion To Correct certain paragraphs contained in the commissioner’s Finding and Dismissal. The trial commissioner granted some of the corrections sought by the claimant.1 However, none of the facts the claimant sought to correct and which were denied by the commissioner, would necessarily compel the conclusion that the claimant’s employer furnished transportation. See Simmons v. Bonhotel, 40 Conn. App. 278 (1996). See also, Christoforo v. Christoforo’s Northford Gardens, 4260 CRB-3-00-6 (July 2, 2001). Ronzone v. Connecticut Fine Blanking Corp., 3522 CRB-4-97-1 (May 15, 1998). Nor did the claimant-appellant’s Motion To Correct challenge the commissioner’s conclusion in Findings ¶ J, i.e., the employer did not furnish transportation.
The mere payment of an allowance for the use of an employee’s car does not in and of itself bring a motor vehicle accident within the scope of coverage under the Workers’ Compensation Act. See, Orsinie v. Torrance, 96 Conn. 352 (1921). See also, Hannon v. Independent Office Installations, 3781 CRB-6-98-12 (June 28, 1999); Irving v. Hoyland, 4 Conn. Workers’ Comp. Rev. Op. 25, 249 CRD-7-83 (March 4, 1987) thus, compensability is not established solely on the basis that the employer furnished transportation.
Alternatively, the claimant contends that his return trip home to retrieve the forgotten beeper satisfies the criteria reiterated in Kolomiets, supra, i.e., that he was (1) at a place where he might reasonably have been (2) while fulfilling the duties of his employment or doing something incidental to it.” Kolomiets, supra. However, again as noted in the Supreme Court’s decision in Kolomiets, supra and Kish, supra, whether the claimant was fulfilling the duties of his employment or something incidental to it is a factual question to be decided by the trial commissioner.
Specifically, on this issue of the beeper, claimant contends that the factual circumstances of this case so closely resemble those in Ballester v. K. &D. Auto Body Inc., 5 Conn. Workers’ Comp. Rev. Op. 35, 578 CRB-3-86 (April 6, 1988) that the commissioner was compelled to conclude that the claimant’s motor vehicle accident occurred while the claimant was in the course of his employment. More succinctly put, the claimant contends that the employer required the claimant to wear the beeper at the job site, and thus, his return home was in furtherance of his employer’s business.
We note that the trier did find that the employer provided the claimant with a beeper in order to contact him at the job site. However, she additionally found that the claimant was not subject to emergency calls.2 These findings support an inference that the trier did not find the claimant’s return trip home to retrieve the beeper to be an act in furtherance of the employer’s business. In Ballester, the injured employee was a repair shop foreman whose duties included activating the burglar alarm upon closing the shop each evening, shutting off the burglar alarm each morning and opening the shop for business each work day. On the day that of the injury, the employee left his home for work and while enroute, realized that he had left his keys for the shop at home. The employee then started his return trip home to retrieve his keys when he was involved in a fatal motor vehicle accident.
As we have noted on numerous occasions, the resolution of the issue before us is dependent on the trial commissioner’s factual determinations. Such determinations are within the purview of the trial commissioner and are dependent on the weight and credibility assigned by the trier. See e.g., Tartaglino v. Dept. of Correction, 55 Conn. App. 190 (1999). Furthermore, such findings and conclusions must stand unless they are contrary to law, without evidence or based on unreasonable or impermissible inferences. Fair v. People’s Savings Bank, 207 Conn. 535, 539, (1988); Francis v. State, 56 Conn. App. 90 (1999); Recalde v. Pop Fasteners, 4183 CRB-8-00-1 (March 7, 2001).
In this case the trier concluded that the trip to retrieve the beeper was not in furtherance of the employer’s business and we cannot substitute our judgment for the trier’s “unless the case lies clearly on the one side or the other.” Fair, supra at 541. It was the trier’s decision whether the beeper in this case was sufficiently analogous to the retrieval of the shop keys in Ballester. Our review of the record and the trier’s findings and conclusions indicates that the trier did not err in this regard.
We therefore affirm the June 8, 2000 Finding and Dismissal of Claim of the Commissioner acting for the Third District.
Commissioners George A. Waldron and Ernie R. Walker concur.
1 In the Claimant-Appellant’s Motion to Correct filed June 19, 2001, the claimant requested:
The claimant in the above matter moves to correct the finding dated June 8, 2000 by adding the following findings of fact:
1. At the time of the accident, the claimant resided at 630 Mix Avenue in Hamden, Connecticut. (transcript page 5,6)
2. The respondent employer’s place of business is in Bethel, Connecticut. (T-7)
3. The claimant has to carry a beeper on his job because his employer will sometimes page him to cover another project for inspection. (T-9)
4. The claimant is not paid travel mileage when he travels from his home to the employer’s place of business in Bethel. (T.11)
5. The claimant and his employer bargained for a flat travel mileage allowance of 80 miles at 20 cents a mile when he was assigned to the Plainville job. (T-40, 41,45)
In the trial commissioner’s June 23, 2000 Ruling on Claimant’s Motion To Correct paragraphs 1,2,4 were granted, and paragraphs 3 and 5 were denied. In her denial of paragraph 3 the commissioner referenced Paragraph IV (9) of the Finding and Dismissal and in her denial of paragraph 5 the commissioner referenced Paragraph IV (17) of the Finding and Dismissal. BACK TO TEXT
2 In Findings ¶ K the trier found, “The claimant did not present evidence to prove he is subject to emergency calls.” BACK TO TEXT
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