Ambrose v. City of Bridgeport

The claimant was represented by Steven G. Howe, Esq., D’Agosto & Howe, L.L.C., 738 Bridgeport Avenue, Shelton, CT 06484.

The respondents were represented by Christine M. Yeomans, Esq., Law Office of Christine M. Yeomans, L.L.C., 4 Research Drive, Suite 402, Shelton, CT 06484.

This Petition for Review from the August 13, 2020 Finding and Dismissal of Jodi Murray Gregg, Commissioner acting for the Fourth District, was heard on January 22, 2021 before a Compensation Review Board panel consisting of Commission Chairman Stephen M. Morelli and Commissioners Brenda D. Jannotta and Soline M. Oslena.

OPINION

STEPHEN M. MORELLI, CHAIRMAN. The claimant has petitioned for review from the August 13, 2020 Finding and Dismissal (finding) of Jodi Murray Gregg, Commissioner acting for the Fourth District (commissioner). We find error and accordingly remand the decision of the commissioner for additional findings consistent with this Opinion.

The commissioner identified the following issues for analysis in association with a claimed injury of January 31, 2019: compensability, medical bills, medical treatment, total incapacity benefits, and temporary incapacity benefits. The commissioner made the following factual findings which are pertinent to our review of this matter. The claimant was employed as a mason for the Bridgeport Board of Education; he was assigned to and drove a city-owned vehicle which he used to get to and from the schools at which he worked. The claimant was an hourly employee who was scheduled to work from 7:00 a.m. to 3:30 p.m., with a daily lunch break from 12:00 p.m. to 12:30 p.m. along with two separate fifteen-minute breaks. The claimant testified that if he wanted to take his lunch break at some other point during the day, he was required to notify his supervisor; however, the fifteen minute breaks were not scheduled for a certain time. At trial, the claimant stated:

Mike Zirkel, the claimant’s supervisor, also testified at trial, indicating that the workers had the vans all day and were entitled to take a half-hour lunch break and two fifteen-minute breaks. He stated:

Zirkel further testified that if an employee used the van to drive to a location other than a designated workplace and the location was not along the way, permission was required.

On January 31, 2019, the claimant was assigned to work at the Marin School, located at 479 Helen Street in Bridgeport. The school was two miles from the facilities building at which the employees would meet in the morning to receive their assignments for the day. The claimant testified that on that date, he left the facilities building in his work van between 7:15 a.m. and 7:20 a.m.; however, rather than going directly to his assigned worksite, he instead drove to the Chase Bank located at 2125 Main Street in Bridgeport, approximately three miles from the facilities building and not located along the direct route to the school. The claimant testified that the purpose of his visit to the bank was to withdraw money in order to make a loan payment to his credit union.

At approximately 7:30 a.m., after leaving the bank, the claimant was involved in a motor vehicle accident when he was struck from behind by another vehicle at a stop sign at the corner of North Avenue and Island Brook Avenue. He testified that he injured his back, neck, right foot and left arm, and was taken by ambulance to Bridgeport Hospital. He received follow-up care at St. Vincent’s Urgent Care, L.L.C., Connecticut Orthopaedic Specialists, and the Orthopaedic Specialty Group, P.C. All of the claimant’s treating physicians opined that the claimant’s injuries were the result of the January 31, 2019 motor vehicle accident.

The claimant was totally disabled by the injuries sustained in this accident from the date of injury through March 5, 2019, and was released to light duty with restrictions from March 6, 2019, until April 28, 2019; on April 29, 2019, he returned to full duty with the respondent employer.

Having heard the foregoing, the commissioner found that the claimant sustained injuries in the motor vehicle accident which occurred on January 31, 2019, during the workday; however, the injuries did not arise out of or in the course of the employment. The commissioner, noting that she found Zirkel’s testimony credible and persuasive but not the testimony offered by the claimant, stated:

The commissioner, having determined that the claimant’s injuries were not compensable, denied and dismissed the claim for workers’ compensation benefits.

The claimant filed a motion to correct, which was denied in its entirety, and this appeal followed. On appeal, the claimant contends that the commissioner misapplied the legal standard for determining whether the injuries sustained in the January 31, 2019 motor vehicle accident arose out of and in the course of his employment and, as a result, her “conclusion was clearly erroneous.” Appellant’s Brief, p. 3. The claimant also contends that the commissioner’s denial of the motion to correct constituted error.

We begin our analysis of this matter with a recitation of the well-settled standard of review we are obliged to apply to a commissioner’s findings and legal conclusions. “The trial commissioner’s factual findings and conclusions must stand unless they are without evidence, contrary to law or based on unreasonable or impermissible factual inferences.” Russo v. Hartford, 4769 CRB-1-04-1 (December 15, 2004), citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Moreover, “[a]s with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Burton v. Mottolese, 267 Conn. 1, 54 (2003), quoting Thalheim v. Greenwich, 256 Conn. 628, 656 (2001). “This presumption, however, can be challenged by the argument that the trial commissioner did not properly apply the law or has reached a finding of fact inconsistent with the evidence presented at the formal hearing.” Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007).

It is axiomatic that in order to establish that an injury “arose out of and in the course of the employment,” as contemplated by the provisions of General Statutes § 31-275 (1), “[t]here must be a conjunction of the two requirements, ‘in the course of the employment’ and ‘out of the employment’ to permit compensation. The former relates to the time, place and circumstance of the accident, while the latter refers to the origin and cause of the accident.”1 Stakonis v. United Advertising Corporation, 110 Conn. 384, 389 (1930). Moreover, “[i]n order to come within the course of the employment, an injury must occur (a) within the period of the employment, (b) at a place where the employee may reasonably be, and (c) while he is reasonably fulfilling the duties of the employment or doing something incidental to it.” Id. It should be further noted that:

In the present matter, the claimant contends that the commissioner erroneously concluded that “neither part of the two-part test for compensability … was satisfied, based ostensibly upon her finding that the claimant’s banking transaction, which had been completed before the accident occurred, was personal in nature, that it exclusively benefitted the claimant, that it had no causal connection to the claimant’s employment, and that it was done without the employer’s permission.” Appellant’s Brief, p. 5.

With regard to the three required elements for determining whether an injury arose in the course of the employment, the claimant avers that “logic and reason support that all three were satisfied by the facts in the record at hand.” Id., 7. The claimant points out that the accident occurred at approximately 7:30 a.m., after he had already been on the job for thirty minutes. The claimant also argues that as contemplated by Stakonis, supra, he was “at a place where the employee may reasonably be” in that the motor vehicle accident occurred while he was driving the employer-owned van on his way to his assigned work location and the accident took place at an intersection located one mile from his destination.

With specific reference to the third element of the “in the course of the employment” analysis - i.e., whether a claimant’s activities can be construed as “reasonably fulfilling the duties of his employment or doing something incidental to it” - the claimant points out that “[o]n this issue, our courts have consistently held that when adjudicating this last prong of the test, the question is whether the claimant deviated from his employment such as to constitute a ‘temporary abandonment.’” Appellant’s Brief, p. 8, quoting Herbst v. Hat Corporation of America, 130 Conn. 1, 7 (1943).

Luddie v. Foremost Ins. Co., 5 Conn. App. 193, 196-97 (1985).

In light of the foregoing, it is the claimant’s contention that the “commissioner improperly resolved the issue of deviation in her finding. The trial commissioner merely found that the clamant had deviated from a direct route to Marin School. She failed to render a finding as to whether the deviation was of such a nature and extent as to be considered substantial.” Appellant’s Brief, pp. 9 10. We agree.

In Kolomiets v. Syncor International Corp., 252 Conn. 261 (2000), our Supreme Court reviewed an appeal brought by the respondents in a matter in which this board had reversed the commissioner’s finding of compensability and dismissed the claim, and the Appellate Court subsequently reversed the decision of this board.2 The claimant, who was employed on a part time basis to deliver radioactive medical products to local hospitals, sustained injuries in a motor vehicle accident which occurred after he had completed a delivery. The record indicated that the claimant, rather than taking the sixth exit from Interstate 95, which would have brought him directly to the employer’s offices, instead drove to the seventh exit with the intention of returning home to retrieve his wallet and driver’s license which he had forgotten.

In the course of reviewing the appeal, the Kolomiets court conducted an extensive examination of its prior analysis in Kish, supra, wherein the respondents had appealed the Appellate Court’s affirmance of the award of workers’ compensation benefits to the claimant, a registered nurse who sustained injuries while delivering medical supplies to a patient. Despite having been instructed not to make the delivery herself, the claimant did so, and was injured when she was struck by a car while crossing the street to mail a letter. The Kolomiets court stated that:

The Kolomiets court also observed that:

In Kish, the court ultimately concluded “that the claimant’s arguably unauthorized trip to pick up the new commode, and her subsequent decision to cross the street and mail a letter while she was delivering that commode to one of her patients was a ‘deviation … so minor as to be disregarded as insubstantial.’” Id., quoting Kish, supra, 391.

Similarly, in Kolomiets, the court remarked that the commissioner had determined that:

The court concluded that “we cannot say that the plaintiff’s deviation from work in the present case so far exceeds the deviation from work in Kish as to mandate a departure from our traditional deference to the commissioner’s factual findings.” Id.

In light of the foregoing, in the matter at bar, we are inclined to agree with the claimant that the determination that he “deviated from his direct route to his assigned location,” Conclusion, ¶ 1, does not adequately address whether the alteration to his route necessarily constituted a “substantial deviation” as contemplated by our case law. While it could possibly be inferred from the findings that the commissioner did not believe the claimant was “at a place where the employee may reasonably be,” Stakonis, supra, 389, because he had elected to carry out a personal errand which caused him to take an alternate route to the job site rather than the most direct route, there is nothing in the record to suggest that the employer required that its drivers follow certain routes to get to the various job sites which were situated throughout the city of Bridgeport.3

Moreover, in its review of Kish, our Appellate Court stated that “[t]he plaintiff’s actions, as found by the commissioner, were not an abandonment of her employment, but rather a deviation of inconsequential proportions. The plaintiff fully intended to bring herself back within the course and scope of her employment upon returning to her car.” Kish v. Nursing & Home Care, Inc., 47 Conn. App. 620, 626 (1998).

In the present matter, the record indicates that the motor vehicle accident in which the claimant sustained his injuries occurred one mile from his designated work site for the day. The claimant had driven three miles from the facilities building to the bank, and then another mile from the bank towards the Marin School. Had the claimant taken the most direct route to the Marin School from the facilities building, the distance traveled would have been two miles, which was the same distance from the bank to the school. As such:

The claimant also points out that even if it could be reasonably inferred that the commissioner concluded the trip to the bank constituted a substantial deviation from the employment, her finding did not address the issue of whether the employer had acquiesced to the deviation. The claimant asserts that in light of Zirkel’s testimony regarding the employer’s policies regarding employee use of the employer-owned vans for personal errands, “it was clearly erroneous for the trial commissioner to have not found that the employer acquiesced to the subject deviation, even if she concluded that the deviation was substantial.” (Emphasis in the original.) Id., 13.

We agree that the commissioner’s findings are silent relative to the assessment of whether Zirkel’s testimony provided a reasonable basis for inferring that the employer acquiesced in the claimant’s use of his van for running personal errands while on breaks or at lunch. Our review of this testimony indicates that Zirkel conceded that “employees run personal errands with the Board of Education vans,” December 9, 2019 Transcript, p. 64, and because the employees have the vans all day, these errands generally occur when the employees “stop for their breaks and lunch.” Id., 65. Zirkel stated that “by union contract they’re entitled to a break, so if they don’t have coffee or food with them, I would expect, or they, they are given permission to stop and, you know get something. Hopefully it’s along the way from where they are to where they’re going or nearby to where they are.” (Emphasis added.) Id.

Zirkel further testified that although the employees could leave the job site during their breaks, they were expected to return to the site in ten or fifteen minutes. Zirkel explained that the time limit operated as a restriction on their activities given that “[t]here’s only so far you can go and do or buy something and be back at the job site.” Id., 78. Zirkel indicated that the decision as to when to take a fifteen-minute break was within the worker’s discretion, albeit “within limitations,” id., 79, because “there’s no set timeline as to when the breaks have to be taken each day.” Id. Under cross examination, Zirkel replied in the affirmative to the following query: “If a person wanted to use … his break to go to the bank, as long as he was back to where he was supposed to be, wherever they were in the City of Bridgeport, couldn’t they elect to do that?”4 Id., 81.

However, Zirkel also testified that employees needed to ask permission if they “[used] the van to go to some place not from point A to B,” id., 65, although it was acceptable to stop at a point along the direct route. Zirkel also stated that the claimant’s decision to drive to the bank rather than the Marin School constituted “going out of the way,” id., 71 and the claimant did not have permission to do so. Zirkel denied testifying that employees were allowed to go out of their way during their breaks or lunches, stating that “[t]hey shouldn’t,” id., 74, and indicated that doing so without permission could be the subject of disciplinary action. However, Zirkel also testified that he had never disciplined any of his employees, including the claimant, for doing so.5

As the foregoing indicates, Zirkel’s testimony contains a number of inconsistencies which were not referenced in the commissioner’s findings. In light of the commissioner’s failure to address the ambiguity of this testimony, it is not possible for this board to draw any inferences relative to the issue of whether the employer may have acquiesced in the use of its vans by its employees for running personal errands while on breaks. Absent such an analysis, we are obligated to remand this matter to the commissioner for clarification, particularly in light of Zirkel’s testimony that the employees retained a certain degree of latitude in deciding at what point during the day they wished to take their breaks and that the activities workers could pursue while on these breaks were primarily circumscribed by time limitations. “Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court.... Without the necessary factual and legal conclusions furnished by the trial court ... any decision made by us … would be entirely speculative.”6 (Citations omitted; internal quotation marks omitted.) Gordon v. H.N.S. Management Co., 272 Conn. 81, 101 (2004).

The claimant also contends that in order to appropriately assess compensability, “[t]he determinative question is whether the plaintiff, at the time of [his] injury, was engaged in the line of [his] duty in the business affairs of [his] employer.” (Emphasis in the original.) Appellant’s Brief, p. 6, quoting Luddie, supra, 196. The claimant argues that in the present matter, the commissioner “overlooked what the facts were when the accident happened and, instead, improperly focused on what had transpired well before the accident occurred.” Id. As such, the “commissioner’s focus on the past banking transaction was misplaced. It ignored the temporal nature of the analysis and resulted in the impermissible oversight of the facts that existed ‘at the time of the injury.’” Id., 7.

We are not necessarily persuaded that the commissioner was required to parse the “temporal nature” of the events leading to the motor vehicle accident to the extent suggested by the claimant, given that, as the respondents accurately point out, “‘[b]ut for’ the claimant’s trip to the bank, he would not have been at the stop sign at North Avenue and Island Brook Avenue in Bridgeport,” Appellees’ Brief, p. 7, and the claimant “was continuing on that detour as he made his way back to where he was required to be.” Id.

However, we do agree with the claimant that “[t]ravel on the public roadways was required by the employment, and the risks associated with such activity are unavoidable.” Appellant’s Brief, p. 13. In Labadie v. Norwalk Rehabilitation Services, Inc., 274 Conn. 219 (2005), our Supreme Court reviewed an appeal brought by the respondents in a matter in which the claimant, a home health care worker, sustained injuries while taking public transportation to visit her first patient of the day. The respondents contended, inter alia, that the injuries were “barred by the coming and going rule ….” Id., 226. The court, noting that an exception to this rule could be claimed “[i]f the work requires the employee to travel on the highways,” Dombach v. Olkon Corporation, 163 Conn. 216, 222 (1972), citing Lake v. Bridgeport, 102 Conn. 337, 343 (1925), rejected the respondents’ argument on the basis that “travel was an integral part of [the claimant’s] employment and service.”7 Labadie, supra, 234. The court held that:

It is axiomatic that a “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.” (Internal quotation marks omitted.) Fair, supra, 545-546. Given that the record in this matter reflects that “travel [was] part and parcel,” Labadie, supra, 231, of the claimant’s employment, we find unpersuasive the respondents’ contention that the claimant’s motor vehicle accident “was caused by a risk wholly disconnected with the duties of his employment.” Woodley v. Rossi, 152 Conn. 1, 6 (1964).

Finally, the claimant contends that the commissioner erroneously denied his motion to correct. Insofar as the commissioner’s denial of the proposed corrections was inconsistent with the board’s analysis as presented herein, the denial of the motion to correct also constituted error.

There is error; the August 13, 2020 Finding and Dismissal of Jodi Murray Gregg, Commissioner acting for the Fourth District, is accordingly remanded for additional findings consistent with this Opinion.

Commissioners Brenda D. Jannotta and Soline M. Oslena concur.

1 General Statutes § 31-275 (1) states: “‘Arising out of and in the course of his employment’ means an accidental injury happening to an employee or an occupational disease of an employee originating while the employee has been engaged in the line of the employee’s duty in the business or affairs of the employer upon the employer’s premises, or while engaged elsewhere upon the employer’s business or affairs by the direction, express or implied, of the employer ….” BACK TO TEXT

2 This board had reversed the decision of the commissioner concluding that the injury had arisen out of and in the course of the employment. See Kolomiets v. Syncor International Corp., 16 Conn. Workers’ Comp. Rev. Op. 234, 3251 CRB-7-96-1 (June 23, 1997), rev’d, 51 Conn. App. 523 (1999), aff’d, 252 Conn. 261 (2000). BACK TO TEXT

3 We note that in Kolomiets v. Syncor International Corp., 51 Conn. App. 523 (1999), our Appellate Court observed that the employer’s activities were regulated by the Nuclear Regulatory Commission and the employer “maintained manuals at its offices in Stamford outlining the recommended routes its drivers should take when transporting it products.” Id., 525. However, these “[r]outes could be changed by the drivers if necessary.” Id. BACK TO TEXT

4 We are not entirely persuaded that the supervisor’s testimony in this regard differed markedly from the testimony offered by the claimant. BACK TO TEXT

Q: You mentioned earlier that some of the guys will drive on their break time to get coffee or to get something to eat and maybe they’ll drive out of the way during those break hours; is that right?

Q: Can they? Is that something that would require disciplinary action if they did?

Q: So you’re saying even if you’re on your break time and you’re going to drive out of the way to get food or to get coffee, that’s something that would be the subject of a disciplinary action?

Q: Have you ever done that to anybody, any of your workers? Have you disciplined any of them for doing that?

Q: Have there been times when you’ve been made aware of the fact that a worker has driven out of the way during his break time to get a coffee, to get something to eat, and yet you didn’t do anything about it from a disciplinary standpoint?

6 In a similar vein, in Mazzone v. Connecticut Transit Co., 240 Conn. 788 (1997), our Supreme Court reviewed an appeal brought by a claimant who sustained injury while eating lunch in one of the employer’s out-of-service buses. Although the court concluded that the claimant’s injuries had occurred within the period of the employment and the activity of eating lunch was incidental to the employment, the court was unable to determine, due to the ambiguity of the record, whether the employer had acquiesced to the employees’ use of out-of-service buses for dining. The court noted that although the commissioner had found that the employer was “aware” that some of its employees ate lunch on the buses, the commissioner’s findings did not resolve the issue of “[w]hether this awareness [constituted] tacit approval or acquiescence sufficient to render an out-of-service bus a reasonable place for the claimant to have eaten his lunch ….” Id., 797. The court therefore remanded the matter, stating that “[a]lthough the claimant asks us to infer acquiescence, we decline to enlarge the proper scope of our appellate review either by finding facts or by drawing inferences from the facts actually found.” Id. BACK TO TEXT

7 It should be noted that in Dombach v. Olkon Corporation, 163 Conn. 216 (1972), our Supreme Court observed that there are several exceptions to the “coming and going rule,” which generally acts to render non compensable injuries sustained when a claimant is traveling to or from work. Citing Lake v. Bridgeport, 102 Conn. 337 (1925), the court delineated the exceptions as follows: “(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.” Dombach, supra, 222. Given that we believe the circumstances of the present matter are governed by the first exception, as the record indicates that the nature of the employment required the claimant to travel on the roadways; the “exclusive benefit” referenced by the commissioner in Conclusion, ¶ 1, is not relevant to the consideration of the claim. See Labadie v. Norwalk Rehabilitation Services, Inc., 274 Conn. 219, 234 (2005). BACK TO TEXT