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CASE NO. 4780 CRB-3-04-2
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
FEBRUARY 16, 2005
TOWN OF BETHANY
The claimant was represented by Alan Silver, Esq., 275 Orange Street, New Haven, CT 06510.
The respondents were represented by Colette Gladstone, Esq., Howd & Ludorf, 65 Wethersfield Avenue, Hartford, CT 06114.
This Petition for Review from the January 22, 2004 Finding and Dismissal of the Commissioner acting for the Third District was heard August 27, 2004 before a Compensation Review Board panel consisting of the Chairman John A. Mastropietro and Commissioners A. Thomas White, Jr. and Ernie R. Walker.
JOHN A. MASTROPIETRO, CHAIRMAN. The appellant, Todd Ryker, has appealed from the January 22, 2004 Finding and Dismissal of the Commissioner acting for the Third District.1 We affirm the decision of the trial commissioner.
The pertinent facts are as follows. The claimant was employed as a laborer in the Public Works Department by the respondent, Town of Bethany. Prior to the date of claimed injury, on November 19, 1999, the respondent employer issued the claimant a written statement summarizing a meeting and discussion with the claimant which warned him that “outbursts, shouting and yelling” such as he demonstrated that morning would not be tolerated. Findings, ¶21. The claimant testified that on March 1, 2002 he and three co-workers were clearing brush on the side of the road. On that morning he was stopped by a friend who works for a neighboring town. According to the claimant the two men had a conversation about a brush cage that claimant had designed for his employer’s wood chipper and that the conversation lasted from five to ten minutes. The claimant testified that after returning to the garage at the end of the day the Director of Public Works verbally reprimanded him for spending a half hour talking to someone on the side of the road. One of the claimant’s co-workers told him that Peter Schilpp, another co-worker, was the person who had complained about the claimant’s conversation with his friend earlier in the day.
The claimant testified that he approached Mr. Schilpp with the intent of having a discussion regarding why Mr. Schilpp complained to the Director about the claimant. The claimant alleged that his conversation with Mr. Schilpp turned into a verbal argument which led to Mr. Schilpp hitting the claimant in the chest and knocking him down. The claimant testified that he then fell backwards and slammed his elbow into the frame of a pay loader. On March 6, 2002 the respondent employer issued a written warning to the claimant regarding the incidents that took place on March 1, 2002. The warning stated in relevant part,
. . . [Y]ou immediately proceeded to engage in provocative behavior, including using profane and abusive language directed at co-workers, physically impeding a co-worker, invading such co-worker’s personal space and engaging in name calling. Such misconduct led to Peter Schilpp’s pushing you away from him.
Findings, ¶ 20, Claimant’s Exhibit A.
Mr. Schilpp testified that on the date of this incident the claimant was yelling at him as he walked towards him. According to Mr. Schilpp, the claimant got close to him and was spitting in his face so he pushed the claimant away and the claimant fell into the wood chipper.
The trial commissioner found that the incident in question which led to the claimant’s claim was “not the result of normal reactions of human nature due to the conditions under which the claimant and Peter Schilpp worked together.” Findings, ¶ F. The trial commissioner determined the incident in question was caused by the claimant’s aggressive behavior towards Mr. Schilpp. The claimant had intentionally instigated and provoked Mr. Schilpp. The trial commissioner found the claimant knew the serious nature of his conduct and the risks associated with such conduct. The trier determined the incident in question was neither a direct cause of the claimant’s job duties or incidental to a job duty. Additionally, the trial commissioner decided the claimant was not seriously injured or hurt as a result of the March 1, 2002 incident. Therefore, the claimant’s claim for injuries sustained was dismissed.
The claimant has appealed this Finding and Dismissal. The claimant alleges the trial commissioner committed several errors in his findings. It is the claimant’s contention that he was reasonably fulfilling the duties of his employment and/or doing something incidental to his employment when he was assaulted by a co-worker, therefore, he asserts his claim must be compensable. Claimant’s June 21, 2004 Brief.
In Stulginski v. Waterbury Rolling Mills Co., 124 Conn. 355, 361-362 (1938), the court gave the following analysis to use to determine whether a workplace assault is compensable:
If the injury results as a natural consequence of the conditions of the employment, recovery of compensation is not necessarily defeated by the fact that it is suffered in the course of a fight in which the claimant becomes involved with another employee. The question is whether taking all the facts into consideration the conditions of employment are the legal cause of the injury.... The personal injury must be the result of the employment and flow from it as the inducing proximate cause. The rational mind must be able to trace the resultant personal injury to a proximate cause set in motion by the employment and not by some other agency, or there can be no recovery.... That the injury is immediately caused by a fight between two employees does not necessarily break the chain of causation between the conditions of employment and the injury where it results from the normal reactions of human nature due to conditions under which the men are thrown together in a common employment....
If, however, ... the fight results solely from a feeling of anger or hatred by one employee for another or from ill-will between them, though it occurs in the course of the employment, it does not arise out of it.... In such a situation the principle is the same as that applied where compensation is denied because of injury resulting from horseplay between employees.... In such case he has voluntarily departed from the duties of his employment and embarked upon an enterprise of his own not contemplated by the terms of his employment....
“Whether the trier erred in finding that the claimant’s injury arose out of and in the course of his employment requires a factual determination which we will not disturb unless it is found without evidence, contrary to law or based on unreasonable or impermissible factual inferences.” Setterstrom v. C.R. Klewin, Inc., 3643 CRB-2-97-7 (August 12, 1998), citing Fair v. People’s Savings Bank, 207 Conn. 535 (1988). Here, there is no dispute that the claimant was injured in the course of his employment. At issue at the formal hearing below was whether the claimant’s injuries arose out of his employment.
The trial commissioner determined that there was not a proximate cause between the claimant’s employment and the incident which took place. Findings, ¶ G. We find that there is sufficient evidence to support a finding that the assault was not caused by the claimant’s employment. The trial commissioner found that the assault took place “due to the claimant’s aggressive actions toward Mr. Schilpp.” Findings, ¶ F. Additionally the trier decided “that the claimant intentionally instigated and provoked the incident with Mr. Schilpp on March 1, 2002.” Findings, ¶ H. Where the trier determined that the claimant was the instigator of an assault, he is well within his authority to determine that the incident did not arise out of the claimant’s employment. See Willis v. Taylor & Fenn. Co., 137 Conn. 626 (1951); Setterstrom, supra.
However, the claimant contends the trial commissioner erred in making a factual finding that the claimant was the instigator of said assault. The claimant alleges that his behavior was basically passive and should not defeat his claim. Claimant’s June 24, 2004 Brief. We disagree. The claimant admitted saying, “somebody here is a F’n rat, somebody ratted me out.” Findings, ¶ 18. The written statement that Mr. Schilpp signed on the date of the incident states that the claimant “got in my face and called me a rat. When he got close to me I pushed him away.” Findings, ¶ 23, Respondent’s Exhibit 3. Mr. Schlipp testified that the claimant was close to him and actually spat in his face. Mr. Schlipp said that he proceeded to push the claimant away. Findings, ¶ 24. The claimant testified about the incident as follows:
I understand that you have a problem with me regarding the work, why didn’t you say something to me about? You went and talked to the boss about it. And he [Mr. Schilpp] says, ‘I got a problem with you.’ I says, so I continued walking straight in front of the payloader bucket and Mr. Schilpp came around the cage and he confronted me at that point. He said to me, ‘You have a problem with me?’ And I said, ‘Yes I do.’ And he said—I don’t want to swear but he says, ‘I’ll knock your F’n head off.’ I said, “Go ahead and try it.’ At that point he reached back with two clenched fists, hitting me in the chest full force and knocked me backwards . . . .
Findings, ¶ 14.
We find this evidence to be sufficient to support the determination that the claimant was in fact the instigator of the assault. The mere facts that the claimant did not physically touch or strike Mr. Schilpp and that Mr. Schilpp ultimately touched the claimant do not negate a finding that the claimant was an instigator. In Setterstrom, supra, this board affirmed a trial commissioner’s determination that claimant’s fall from a ladder after being pushed by a co-worker did not arise out of his employment. In Setterstom, supra, the trial commissioner determined that the reason the claimant’s co-worker pushed him off the ladder was that the claimant had been “taunting” that co-worker prior to the incident. Similarly, in this case the reason the claimant was pushed by Mr. Schlipp was that the claimant had acted aggressively toward him. Findings, ¶ F.
The claimant argues that the trial commissioner erred in finding and concluding that the claimant’s testimony was not credible. See Findings, ¶ N. The claimant specifically contends that the trial commissioner erred in finding the claimant was not credible because he never had the opportunity to observe the claimant testify. In this case the August 12, 2002 and February 26, 2003 formal hearings were heard by Commissioner Robin Wilson, while the July 23, 2003 hearing was heard by Commissioner Charles Senich who ultimately made the findings in the case. The claimant testified during the earlier hearings. It is the claimant’s contention that the trial commissioner could not make a credibility determination of him solely based on the transcripts. However, it appears that the commissioner’s credibility determinations were made based on the disparity between the claimant’s testimony in the transcripts and other testimony and evidence presented. For this reason it was not necessary for the commissioner to hear and see the claimant in order to make a credibility determination. Furthermore, it should be noted that during the July 23, 2003 hearing the parties agreed to admit the two initial hearing transcripts into evidence. July 23, 2003 Transcript, p. 2. Once the parties agree to allow a trial commissioner to review the transcripts in lieu of a de novo proceeding they are bound to accept the trial commissioner’s findings, regardless of the outcome of the case. Kica v. Mattatuck Manufacturing Co., 9 Conn. Workers’ Comp. Rev. Op. 103, 930 CRD-5-89-10 (March 7, 1991). “To allow otherwise would not be granting a full bite but rather a second bite of the apple.” Id. Therefore, we see no reason to reverse the trial commissioner’s credibility determinations.
The claimant also alleges the trial commissioner erred in making findings and conclusions that were beyond the scope of the issue presented at the formal hearing. The claimant contends that the sole issue at the formal hearing was compensability and therefore, the trier erred when he made the finding that the claimant was not seriously injured as a result of the incident. See Findings, ¶ R. Even if this finding went beyond the scope of the issues presented at the formal hearings, this finding is irrelevant to the final outcome of the case. Here the trier found that the injury did not arise out of the claimant’s employment, therefore, the seriousness of the injury itself is of no consequence. The claimant has not articulated in what way he would be prejudiced by this finding. Therefore, we will not disturb this finding.
For these reasons, we affirm the January 22, 2004 Finding and Dismissal of the Commissioner acting for the Third District.
Commissioners A. Thomas White, Jr. and Ernie R. Walker concur.
1 We note that an extension of time was granted during the course of the appellate process. BACK TO TEXT
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