71 Conn. App. 600 | Conn. App. Ct. | 2002
Opinion
The plaintiff, Michael Daubert, appeals from the decision of the workers’ compensation review board (board) affirming the commissioner’s decision to dismiss his claim for benefits due to injuries suffered in an accident while on patrol as a police officer. The plaintiff claims that the board improperly affirmed the commissioner’s decision because the commissioner’s findings established that the claim was compensable. We agree because the only reasonable inference that can be drawn from the commissioner’s factual findings is that the plaintiffs injuries arose out of and in the course of his employment. We therefore reverse the decision of the board.
On January 26, 1997, at approximately 1:46 a.m., the plaintiff, while on duty as a police officer for the defendant borough of Naugatuck,
The commissioner held fourteen formal hearings on the matter during a two year period
In his finding and award dated February 4, 2000, the commissioner characterized the issue to be decided as “[wjhether the [plaintiffs] accident occurred as alleged . . . thereby resulting in a compensable claim pursuant to chapter 568 of the Connecticut General Statutes?” The commissioner then recited the testimony of ten different witnesses, including the plaintiff, in eighty-two “findings of fact.”
After summarizing the witness testimony in the eighty-two numbered paragraphs, the commissioner set forth nine findings and conclusions based on his review of the relevant evidence and testimony.
The plaintiff testified that prior to the accident, he was working as the road supervisor on the third shift of the day, from 10:30 p.m. on January 25, 1997, to 6:30 a.m. on January 26, 1997. At approximately 11 p.m. on January 25,1997, he went out on the road in his cruiser. While patrolling in his cruiser, he heard a radio call dispatching Officer Don Ward to investigate the report of an erratic driver, possibly intoxicated, driving east on Route 68. The plaintiff heard Officer Gregory Dean report to dispatch over the radio that because he was close to the area, he also would respond. The plaintiff had been told the previous night to supervise calls to which Dean responded because Dean was a rookie. The plaintiff therefore reported to dispatch that he would respond as well.
The plaintiff testified that in the course of responding to the call, he slowed his cruiser several times to “spotlight”
A videotape was entered into evidence, showing the path that the plaintiff had traveled immediately before the accident and containing his narrative description of the route taken.
Robert Allen and Dean, two of the officers on duty when the accident occurred, both testified that the skid marks on the pavement at the accident scene lined up with the cruiser’s rear tires. That was confirmed by field notes in the police report.
John McLay, an officer with the Waterbury police department who was retained by the defendants as an accident reconstruction expert, reviewed photographs of the accident scene and also testified that the skid marks on the pavement ran straight to the cruiser’s rear tires. He further testified that he estimated the speed of the cruiser prior to braking as approximately 33 miles per hour, that the vehicle had been traveling in the lane to the left of the center line and that the vehicle had gone straight into the tree from the road. McLay testified that if the plaintiff had been traveling at 45 to 50 miles per hour on the right side of the road, as he reported to the investigating officer, the vehicle would not have
Eugene Baron, the plaintiffs accident reconstruction expert, testified that the skid marks indicated that the vehicle did not go directly into the tree, but had shifted position on impact. That testimony was in conflict with the field notes in the police report. He also testified that the skid marks showed that the plaintiffs vehicle would have been entirely in the right lane prior to braking and that the plaintiff had been traveling 35 to 40 miles per hour when he first applied the brakes.
Ronald Artman, a paramedic who administered first aid to the plaintiff following the accident, testified that the plaintiff did not show any outward signs of injury, but did not appear conscious when initially observed and did not respond to verbal commands. He also testified that when he conducted tests to establish if the plaintiff was unconscious, the plaintiffs responses were characteristic of a conscious person. Artman was upset by that discrepancy, and testified that he reported his concerns to another officer and the hospital staff.
Jan Mashman, the plaintiffs physician, testified that the plaintiffs responses to Artman’s tests were indicative of an “altered level of consciousness,” but that there was no medical literature to support such a theory. He further testified that the plaintiff had suffered a mild brain injury.
James Donaldson, a physician who examined the plaintiff at the defendants’ request several months after the accident, testified that following his investigation of the various medical reports, the transcript of Artman’s testimony, transcript excerpts from the plaintiffs testimony and the police reports, he believed that it would
With that testimony in mind, we now turn to the commissioner’s remaining conclusions and findings. The commissioner determined that the plaintiffs explanation that his vehicle was traveling at a speed of 45 to 50 miles per hour
The board issued a memorandum of decision dated February 22,2001. In affirming the commissioner’s decision, the board stated that “where a claimant contends that an accident occurred in a specific manner, and the trial commissioner finds the claimant’s explanation to lack credibility, we cannot say that the trial commissioner must find the accident to be compensable merely because it occurred while the claimant was on duty. Certainly in the instant case it is unclear whether the
The standard of review applicable to workers’ compensation appeals is well established. “The commissioner is the sole trier of fact and [t]he conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . The review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [I]t is [obligated] to hear the appeal on the record and not retry the facts. . . . On appeal, the board must determine whether there is any evidence in the record to support the commissioner’s findings and award. . . . Our scope of review of the actions of the [board] is [similarly] . . . limited. . . . [However,] [t]he decision of the [board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed.” (Internal quotation marks omitted.) Mahoney
“The general rule to be applied in workers’ compensation cases is that to be compensable an injury must (1) arise out of the employment and (2) occur in the course of employment. . . . Arising out of employment refers to the origin and cause of the accident. ... To occur in the course of the employment, the injury must take place (1) within the period of employment, (2) at a place where the employee may reasonably be, and (3) while the employee is reasonably fulfilling the duties of the employment or doing something incidental to it. These three parts correspond to the time, place and circumstance of the accident.” (Citations omitted; internal quotation marks omitted.) Masko v. Board of Education, 48 Conn. App. 515, 517-18, 710 A.2d 825 (1998); see also General Statutes § 31-275. “[T]he injured employee bears the burden of proof . . . .” (Internal quotation marks omitted.) Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 447, 774 A.2d 992 (2001).
We also are guided by the “principles underlying Connecticut practice in [workers’] compensation cases: that the legislation is remedial in nature . . . and that it should be broadly construed to accomplish its humanitarian purpose. . . . The humanitarian and remedial purposes of the act counsel against an overly narrow construction that unduly limits eligibility for workers’ compensation.” (Citations omitted; internal quotation marks omitted.) Gartrell v. Dept. of Correction, 259 Conn. 29, 41-42, 787 A.2d 541 (2002).
We begin our analysis by noting that “a commissioner’s recital of evidence or arguments is no substitute for findings of fact. Grabowski v. Miskell, 97 Conn. 76, 78, 115 A. 691 (1921) (discussing our Supreme Court’s repeated injunction against reciting evidence in lieu of
After examining the nine findings and conclusions in the context of the relevant witness testimony, we conclude that the commissioner’s determination that the plaintiff failed to sustain his burden that the accident occurred as he had alleged is not a reasonable inference to be drawn from the findings of fact. In his notice of claim, the plaintiff alleged that his injuries were the result of a “one car accident while on patrol.” In the commissioner’s second finding, he stated that “the [plaintiff], while on duty as [a police officer] of the borough of Naugatuck, was involved in a motor vehicle accident wherein his police cruiser struck a tree.” Because the commissioner’s finding logically suggested that the accident arose out of and occurred in the course of the plaintiffs employment, and because his remaining findings were unrelated to whether the accident arose out of and in the course of the plaintiffs employment, the commissioner’s conclusion to the contrary had no reasonable basis in the facts.
All of the commissioner’s other findings involved witness testimony that clearly was irrelevant to the issue in question. The testimony of Artman and Donaldson related to the plaintiffs mental condition following the accident. The testimony of Allen, Dean and McLay related to various characteristics of the plaintiffs vehicle, including its estimated speed as it approached the
By contrast, the second finding of fact clearly supported an inference that the plaintiff’s injuries had occurred in the course of his employment. See Masko v. Board of Education, supra, 48 Conn. App. 517-18. The finding specifically stated that the plaintiff was on duty, thus satisfying the first prong of the test that the injury take place during the period of his employment. See id. Also implied in the finding was that the plaintiff was in the borough of Naugatuck, thus satisfying the second prong of the test that the injury take place at a location where he might reasonably be. See id. The finding further indicated that the plaintiff was in his police cruiser, which satisfied the third prong of the test that the injury take place while he was reasonably fulfilling the duties of his employment. See id.
The second finding also supported an inference that the plaintiffs injuries arose out of his employment because the finding specifically indicated that the accident occurred while the plaintiff was driving his cruiser and while he was on duty. See id. Indeed, the defendants conceded in their brief that “it can be assumed that the incident arose out of’ the plaintiffs employment. Accordingly, the commissioner’s determination that the plaintiff had not met his burden of proving that the accident occurred as he had alleged was not a reasonable inference to be drawn from the subordinate facts.
Furthermore, in contrast to other cases, none of the commissioner’s remaining findings suggested that the
In its memorandum of decision, the board observed that “we cannot say that the trial commissioner must find the accident to be compensable merely because it occurred while the claimant was on duty.” (Emphasis in original.) The board went on to state that it was not clear whether the plaintiff had met the third prong of the test for determining if the accident had occurred in the course of his employment. We disagree.
As stated previously, the commissioner’s second finding of fact did not indicate merely that the plaintiff was on duty; it also indicated that he was in Naugatuck and driving his police cruiser at the time of the accident. That finding, considered in its entirety, provided the basis for a reasonable inference that the plaintiff was fulfilling a duty of his employment when his vehicle struck the tree, namely, patrolling the streets of Nauga-tuck. That finding,could not have provided the basis for the commissioner’s conclusion to the contrary.
We first point out that the defendants conceded that they never raised the affirmative defense of wilful misconduct. In fact, the defendants stated in their brief to this court that they did not need to rely on such a defense to prevail in the underlying action. Second, contrary to the board’s assertion that an implied defense of wilful misconduct properly was considered by the commissioner, General Statutes § 31-294c (b) provides in relevant part that “[w]henever liability to pay compensation is contested by the employer, he shall file with the commissioner ... a notice . . . stating that the right to compensation is contested . . . and the specific grounds on which the right to compensation is contested. . . .” Thus, in the absence of formal notice, the defendants could not have relied on the affirmative defense of wilful misconduct even if it had wanted to do so. See Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596, 619-23, 748 A.2d 278 (2000) (employer waived right to contest where notice lacked specificity). Third, although the board referred to many of the eighty-two “findings of fact” as support for its
Because the only reasonable inference that can be drawn from the commissioner’s second finding of fact is that the plaintiffs accident arose out of and occurred in the course of his employment, and because there were no other findings to the contrary, the commissioner’s decision cannot stand.
The decision of the workers’ compensation review board is reversed and the case is remanded to the board with direction to reverse the decision of the workers’ compensation commissioner and for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
The Hartford Insurance Group also is a defendant.
The hearings were held from June 5, 1997, until June 15, 1999.
Only three of the eighty-two “findings of fact” did not involve testimony. Two were references to information contained in the police report, and one referred to the fact that administrative notice had been taken of a workers’ compensation file pertaining to a previous claim of iryury by the plaintiff.
Although the commissioner captioned the eighty-two paragraphs “findings of fact,” they constituted a mere recitation of the evidence. The actual findings of fact consisted of separately lettered paragraphs. The commissioner prefaced each of the actual findings and conclusions with the words: “I am satisfied, conclude and find that. . . .” After each of the nine findings and conclusions, the commissioner added: “It is so found.”
The commissioner incorporated that summarized testimony in the remaining findings and conclusions.
“Spotlighting” refers to turning on the spotlights that are located on either end of the cruiser’s roof mounted light bar to illuminate the surrounding area.
The police report indicated that the plaintiff claimed he was driving 45 to 50 miles per hour prior to the accident.
The videotape was supplied by the plaintiffs accident reconstruction expert, Eugene Baron.
This was the speed indicated in the police report, not the plaintiffs testimony. See footnote 7.