CRB Case Annotations re: Section 31-284(a)

Claimant injured in fall at worksite. Respondents argued that his failure to follow safety rules constituted willful and serious misconduct making injury noncompensable. Trial commissioner was not persuaded and awarded claimant benefits. On appeal respondents argued case indistinguishable from Disotell v. LVI Services, Inc., 5749 CRB-3-12-4 (April 25, 2013) where claimant’s conduct barred recovery. CRB affirmed finding and award. Decisions under § 31-284 (a) C.G.S. are fact driven exercises where fact finder has great discretion. Precedent in Clark v. Metro Roofing Supplies, Inc., 5865 CRB-4-13-7 (July 11, 2014) supports result herein. See also, Arnold, § 31-301 Factual findings.

Claimant sustained eye injury as a result of workplace altercation. Employer argued that claimant’s testimony was unworthy of belief and that police report suggested he had instigated the incident. Trial commissioner found claimant’s testimony he had been victimized credible and CRB affirmed award of benefits on appeal. See also, Noriega, § 31-275(1) § 31-301 Factual findings.

Claimant injured falling out of truck while returning from a MA bar. Claimant testified he and co-worker were on out-of-state business trip and his injury occurred during the course of his employment. Trial commissioner did not accept that version of events, finding claimant was engaged in social venture when injured, and credited testimony of toxicologist that claimant’s 0.205% BAL at time of injury made intoxication substantial factor in his injury. Claimant appealed dismissal and CRB affirmed decision. Claimant’s level of intoxication similar to that of claimant in Paternostro v. Arborio Corp., 3659 CRB-6-97-8 (September 8, 1998), aff’d, 56 Conn. App. 215 (1999), cert. denied, 252 Conn. 928 (2000). St. Germaine v. Buckingham Restaurant & Pizza, Inc., 4343 CRB-8-01-1 (January 10, 2002) also supports result. Trial commissioner could reasonably find claimant’s intoxication a substantial factor behind his injury. See also, Maurice, § 31-275(1).

Trier concluded that injuries sustained by truck driver in bridge collapse arose out of and in course of employment. Respondents appealed on basis that claimant was outside scope of employment when injured because he had been warned not to drive over bridge and decision to do so constituted willful and serious misconduct. CRB affirmed, noting that trier, having found credible claimant’s testimony that he inspected bridge before driving over it, concluded that incident was “an unfortunate accident.” See also, Clark, § 31-275(1); § 31-301 Factual findings.

Trier dismissed claim after concluding claimant’s failure to use fall protection equipment while operating man lift was reckless, unreasonable and constituted serious and willful misconduct. Trier found claimant’s testimony credible regarding his frustration with equipment and manpower provided by employer but determined it was not credible that worker with claimant’s training and supervisory responsibilities would forget to use safety harness. CRB affirmed, noting that trier’s findings were supported by record and within her discretion. Trier correctly found that willful misconduct is not limited to situations where claimant admits to intentional refusal to ignore safety rules. Trier granted Motion to Correct in part; CRB affirmed trier’s denial of balance of proposed corrections. See also, Disotell, § 31-275(1), § 31-301. Factual findings, § 31-301-4.

Gamez-Reyes v. Donald F. Biagi, Jr., 5552 CRB-7-10-5 (May 3, 2011). aff’d, remanded in part for articulation on issue of interpreter’s fees, 136 Conn. App. 258 (2012), cert. denied, 306 Conn. 905 (2012).

Claimant injured failing off ladder. Trial commissioner found employee-employer relationship and deemed injury compensable. At hearing, respondent introduced evidence claimant may have consumed beverage from paper bag prior to injury, but no witnesses testified to scent of alcohol or claimant appearing impaired. On appeal, respondent claimed it was “manifest error” as hospital records not introduced as evidence said claimant had some alcohol in bloodstream. Respondent asserted this was proof commissioner lacked jurisdiction. CRB upheld trial commissioner. Respondent should have presented evidence at formal hearing and should not get second chance after losing the hearing. Gibson v. State/Department of Developmental Services-North Region, 5422 CRB-2-09-2 (January 13, 2010). Evidence in question did not prove claimant was legally intoxicated as BAL below standard for drunk driving. Issue of intoxication goes to causation, not jurisdiction. Intoxication is an affirmative defense for respondent and trial commissioner rejected the respondent’s argument. Appellate Court affirmed CRB on this issue See also, Gamez, § 31-315; § 31-284(a); § 31-288; § 31-301 Factual findings.

CRB upheld trier’s dismissal of claim due to untimely notice and affirmed trier’s refusal to expand scope of § 52-577d C.G.S. to workers’ compensation claims, holding that statutory language did not evince legislative intent to apply extended statute of limitations in civil sexual abuse claims for damages to workers’ compensation matters. CRB affirmed trier’s determination that conditions necessary to invoke medical care exception pursuant to § 31-294c(c) C.G.S. were not satisfied as record did not support finding that respondents furnished claimant with medical treatment during the applicable period. CRB affirmed trier’s determination that claimant did not provide notice of claim in substantial compliance with § 31-294c(a) C.G.S. until 2006 and held that victim statements by claimant and her mother read aloud at respondent employer’s sentencing hearing did not constitute notice as contemplated by statute. See also, Chance, § 31-294c, § 31-301. Factual findings, § 31-318.

Claimant, a Juvenile Transportation Officer, appealed trier’s decision dismissing claim on basis that claimant’s aggressive initiation of a physical confrontation with a detention center detainee during a supervised basketball game constituted willful and serious misconduct, an affirmative defense. CRB affirmed, as the trier’s conclusion was dependent upon the weight and credibility he assigned to the evidence which included the testimony of co workers and supervisors as well as surveillance camera footage. Claimant also claimed as error trier’s failure to draw an adverse inference on the basis of spoliation by virtue of respondent’s failure to preserve footage from a second surveillance camera operating in gym during the incident. CRB affirmed trier, noting that an adverse inference determination is factual in nature and respondent provided a credible explanation for its failure to preserve footage from second camera. CRB affirmed trier’s refusal to grant corrections, save for scrivener’s errors, in claimant’s Motion to Correct. See also, Williams § 31-275(1), § 31-301. Factual findings, § 31-301-4.

Claimant had tested positive for cocaine in bloodstream after falling off roof. At hearing claimant testified to drug use more than 24 hours prior to injury. Second Injury Fund argued claim barred due to statutory misconduct. CRB rejected argument. “Wilful and serious misconduct” is an affirmative defense; Fund failed to seasonably advance this defense at the formal hearing. Even if CRB overlooked due process issue, evidence of drug use was not compelling enough to bar an award as a matter of law; no evidence of impairment at time of injury was presented. See also, Jacobs, § 31-275(9), § 31-275(10), § 31-291, § 31-301. Appeal procedure, § 31-355(a), § 31-355(b).

CRB affirmed commissioner’s conclusion respondents failed to sustain their burden of proof on the affirmative defenses of intoxication and wilful misconduct. Whether claimant’s fall was due to his use of opiates and/or cannabis was a factual determination to be made by the commissioner. Further, whether claimant’s alleged failure to properly attach his safety harness was wilful misconduct was also a determination to be made by the commissioner. Any such conclusion must stand unless without evidentiary support, contrary to law or based on unreasonable or impermissible factual inferences. See also, Claudio, § 31-301. Factual findings, § 31-307, § 31-310.

See, Bilsky, § 31-275(16) (possible role of horseplay in workplace slapping incident).

CRB affirmed trial commissioner’s determination that when claimant moved a dangerous vehicle this act did not constitute horseplay. See also, Rego § 31-301. Factual findings.

Board affirmed trier’s conclusion that claimant’s accident was caused by intoxication, and non-compensable. While employed as a chef, claimant became intoxicated and fell while carrying a vat of hot oil across a slippery kitchen floor. In his appeal, he argued that he was not guilty of wilful and serious misconduct. Board explained that wilful misconduct exclusion is separate from intoxication exclusion, and therefore an injury caused by intoxication need not amount to wilful and serious misconduct.

Trier denied claimant’s motion to preclude, which sought to keep respondents from presenting evidence regarding his alleged intoxication at time of alleged injury on ground that intoxication defense had not been listed on Form 43. Trier ruled that question of intoxication at time of injury implicated Commission’s jurisdiction, and thus concluded that the issue should be presented and decided. However, CRB observed that another pending issue was whether there existed an employer-employee relationship (i.e. whether the claimant was acting as an independent contractor), which must be decided first as it implicates subject matter jurisdiction. In contrast, intoxication issue did not involve subject matter jurisdiction, but rather raised an affirmative defense. CRB further explained that issue of whether respondents could present evidence of intoxication was not one of preclusion. See also, Mason, § 31-298, § 31-301. Appeal procedure, § 31-294c. Subsequent decision at Mason, 4476 CRB-3-01-2 (April 28, 2003).

CRB affirmed trier’s finding that claimant, who suffered serious injuries from decompression sickness, did not commit wilful misconduct by increasing the altitude of the unpressurized aircraft he was piloting above 10,000 feet, and ordering the crew to continue on to their scheduled destination wearing oxygen masks. Primary issue was a question of fact, and the commissioner found the claimant’s testimony most credible. CRB was not in a position to find as a matter of law that the claimant’s decision-making as a pilot was so egregious as to constitute misconduct. Supreme Court ultimately reversed decision for lack of subject matter jurisdiction over claim. Prior decision at Burse, 3480 CRB-2-96-12 (November 7, 1997), dismissed for lack of a final judgment, A.C. 17825 (January 14, 1998), rev’d, 262 Conn. 31 (2002)(Supreme Court held that CRB and trial commissioner improperly found that subject matter jurisdiction over claim existed in Connecticut, as contacts were legally insufficient), § 31-278.

Respondent offered no evidence to support affirmative defense of wilful misconduct. See also, King, § 7-433, § 31-294c.

Paternostro v. Arborio Corp., 3659 CRB-6-97-8 (September 8, 1998), aff’d, 56 Conn. App. 215 (1999), cert. denied, 252 Conn. 928 (2000).

Trial commissioner found that decedent was intoxicated and was attempting to cross limited access highway on foot against employer’s rules when he was struck by a car and killed. Trier ruled that this constituted wilful and serious misconduct, and dismissed dependents’ claim for benefits. CRB affirmed. Toxicological analysis of decedent showed that his blood alcohol content was .18 at time of death, which occurred shortly after the accident. Expert testified that this constitutes intoxication pursuant to AMA guidelines. Commissioner was entitled to find that these circumstances amounted to wilful misconduct. Trier did not need to find that decedent’s misconduct or intoxication was the sole proximate cause of the accident; Connecticut law uses substantial factor test to determine necessary causal connection in workers’ compensation cases.

CRB affirmed trial commissioner’s determination that claimant’s depression and attempted suicide were compensable because they were caused by her prior compensable back injury. The trial commissioner’s rejection of the respondents’ defense of wilful misconduct indicates that he did not accept as a factual matter that the claimant’s conduct constituted wilful misconduct. It was within the discretion of the trial commissioner to determine as a factual issue whether the claimant’s conduct constituted wilful misconduct; he was certainly not required to find as a matter of law that such actions amounted to wilful and serious misconduct under § 31-284(a). (Frankl, C., DISSENTING) Claimant’s conduct constituted wilful misconduct and thus should not have been found compensable. See also, Hurd, § 31-301. Factual findings.

See, Swaggerty, § 31-298.

See, Ogdon, § 31-275(9).

Kish v. Nursing and Home Care, 16 Conn. Workers’ Comp. Rev. Op. 83, 3068 CRB-2-95-6 (November 12, 1996), aff’d, 47 Conn. App. 620 (1998), aff’d, 248 Conn. 379 (1999).

See, Kish, § 31-275(1).

wilful and serious misconduct is an affirmative defense, and respondents had burden of proving those allegations. Where commissioner rejected corrected findings offered by respondents on that issue, it indicated that he did not believe that the claimant’s conduct, although questionable, was of a sufficiently grave character to warrant a finding of wilful misconduct. See also, Federchuck, § 31-301. Factual findings and Appeal procedure.

CRB affirmed denial of benefits where alleged injury at work occurred due to horseplay initiated by claimant. See also, Simmons, § 31-298, § 31-294c, and § 31-275(1).

Colon v. Savin Brothers, Inc., 12 Conn. Workers’ Comp. Rev. Op. 299, 1574 CRB-1-92-11 (June 13, 1994), aff’d, 37 Conn. App. 912 (1995)(per curiam), cert. denied, 234 Conn. 903 (1995).

Compensation denied where claimant’s injuries to his shoulders were the result of his intentional interference with a police officer which constituted wilful and serious misconduct.

Trier found claimant’s involvement in a fight at a cafe where she sustained injuries to her knee, neck, elbow and head were the result of her own intentional acts. Further, trier found no employer-employee relationship existed at the time claimant sustained her injuries. See also, Peddle, § 31-294c, § 31-275(1), § 31-301-9. Additional evidence.

Nolan v. Brennan Concrete Corporation, 11 Conn. Workers’ Comp. Rev. Op. 224, 1362 CRD-7-91-12 (November 4, 1993), dismissed for lack of final judgment, A.C. 13041 (January 5, 1994).

Reversed and remanded. Trier’s conclusion claimant’s injury was the result of wilful and serious misconduct failed to address the mental state or intent of the injured employee (claimant) in engaging in the misconduct. Discussion of personal injury and Connecticut’s rule in determining whether a workplace assault between fellow employees is considered to arise out of the employment and whether recovery will be denied pursuant to § 31-284(a) because the injury was caused by wilful and serious misconduct. See also, Nolan, § 31-275(1) and § 31-275(16)[formerly 31-275(8)].

Muldoon v. Homestead Insulation, 10 Conn. Workers’ Comp. Rev. Op. 255, 1226 CRD-4-91-5 (January 13, 1993), rev’d, 33 Conn. App. 695 (1994), rev’d, 231 Conn. 469 (1994), aff’d on remand, 37 Conn. App. 266 (1995)(per curiam).

Alleged wilful misconduct in continuing to work where there was asbestos exposure after being diagnosed with pulmonary asbestosis due to employment related asbestos exposure dismissed. See also, Muldoon, § 31-275(1), § 31-275(15), § 31-296, § 31-299b, § 31-315. Subsequent decisions.

Crochiere v. Enfield/Board of Education, 10 Conn. Workers’ Comp. Rev. Op. 165, 1069 CRD-1-90-7 (August 27, 1992), aff’d, 227 Conn. 333 (1993).

Accusation that claimant, a music teacher, inappropriately touched a female student which resulted in his being terminated from employment does not prove wilful misconduct where trier found and evidence supports mental stress claim arose out of and in the course of employment and was not the result of wilful misconduct. Also, CRB dismissed respondent’s claim that the trial commissioner was collaterally estopped from inquiring into claimant’s alleged wilful misconduct on the basis that respondent employer’s termination proceedings had decided that issue. Additionally, as a collateral estoppel defense was not raised at the trial level the issue need not be considered an appealable issue. See also, Crochiere, § 31-275(1), § 31-294c, § 31-298, § 31-301. Factual findings and Appeal procedure.

Richard v. Catholic Mutual Relief Society of America, 9 Conn. Workers’ Comp. Rev. Op. 272, 1067 CRD-1-90-7 (December 6, 1991).

Trier’s conclusion that respondents failed to sustain their burden of proof as to the affirmative defense of intoxification affirmed as there were facts found from which the trier could have concluded that intoxification did not cause the automobile accident. See, Corcoran v. Corcoran Moving and Storage, Inc., 9 Conn. Workers’ Comp. Rev. Op. 237, 1030 CRD-5-90-6 (October 31, 1991) reviewing Liptak v. State, 176 Conn. 320, 322 (1978). See also, Richard, § 31-301. Appeal procedure.

Corcoran v. Corcoran Moving and Storage, Inc., 9 Conn. Workers’ Comp. Rev. Op. 237, 1030 CRD-5-90-6 (October 31, 1991).

CRD affirmed trier’s factual finding that claimant’s vehicular accident while trying to avoid striking a deer, which accident rendered claimant a paraplegic, was not caused by claimant’s intoxication. Claimant was within the scope of his employment at the time of the accident.

Johnson v. West Haven, 8 Conn. Workers’ Comp. Rev. Op. 56, 792 CRD-3-88-12 (March 21, 1990), no error, 23 Conn. App. 818 (1990).

Where evidence below is conflicting, we will not disturb the commissioner’s finding that injuries sustained to police officer were not a result of his own wilful and serious misconduct. See also, Johnson, § 31-275(1).

Daniels v. Hartford, 5 Conn. Workers’ Comp. Rev. Op. 7, 459 CRD-1-86 (March 23, 1988), no error, 17 Conn. App. 819 (1988)(per curiam), cert. denied, 210 Conn. 809 (1989).

Burden of proof that injury was the result of intoxication is an affirmative defense and is on the respondents.

CRB Case Annotations re: Section 31-284(a)

Defense(s) to liability. (Wilful and serious misconduct.)