Opinion
CASE NO. 1024 CRD-3-90-5
SEPTEMBER 3, 1991
The claimant was represented by Gerald Stevens, Esq., and Kristin A. Dorney, Esq., of Stevens, Moran, Carroll Carveth.
The respondents were represented by Scott. Williams, Esq., and Kathleen M. Byrne, Esq., of Maher Williams.
This Petition for Review from the May 8, 1990 Finding and Dismissal of the Commissioner for the Third District was heard January 25, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Andrew P. Denuzze and Michael S. Sherman.
OPINION
Claimant objects to the Third District May 8, 1990 Finding and Dismissal. On July 30, 1938 claimant, a West Haven police officer, sustained an injury to his left index and left middle fingers. The injury occurred when claimant returned home from duty and removed his service revolver from its holster. The gun discharged in the process thereby causing the injuries which are the subject of his claim. The issue is whether claimant at the time of his injury was in the course of his employment as defined by Sec. 31-275 (12)(A). The commissioner concluded claimant's injury did not arise in and out of the course of employment as there defined.
Claimant requested corrections to the finding, most of which were granted by the commissioner but his ultimate legal conclusion remained unchanged. Sec. 31-275 (12) C.G.S defines arising out of and in the course of employment as follows:
"Arising out of and in the course of his employment" means an accidental injury happening to an employee or an occupational disease of such employee originating while he has been engaged in the line of his duty in the business or affairs of the employer upon the employer's premises, or while so engaged elsewhere upon the employer's business or affairs by the direction, express or implied, of the employer. (A) In the case of a policeman and a firemen "in the course of his employment" shall encompass his departure from his place of abode to duty, his duty, and his return to his place of abode after duty. (B) A personal injury shall not be deemed to arise out of the employment unless causally traceable to the employment other than through weakened resistance or lowered vitality. (C) In the case of an accidental injury, a disability or a death due to the habitual use of alcohol or narcotic drugs shall not be construed to be a compensable injury. (D) In the case of aggravation of a preexisting disease, compensation shall be allowed only for such proportion of the disability of death due to the aggravation of such preexisting disease as may be reasonably attributed to the injury upon which the claim is based.
Whether an injury arose in and out of the course of employment therefore presents a factual question to be determined by the trier. Fair v. People's Savings Bank, 207 Conn. 535 (1988). We may not review de novo the facts as found by the trial commissioner but can only determine if the conclusion drawn from the facts found was contrary to law, without evidence or based on impermissible or unreasonable factual inferences. Id. Further as the Fair court noted:
If supported by evidence and not inconsistent with the law, the . . . [trial] commissioner's inference that an injury did or did not arise out of and in the course of employment is conclusive. No reviewing court can then set aside that inference because the opposite one is thought to be more reasonable; nor can the opposite inference be substituted by the court because of a belief that the one chosen by the . . . [trial] commissioner is factually questionable.
Id. at 539-40 quoting Cardillo v. Liberty Mutual Co., 330 U.S. 469, 477, 478 (1947). The ultimate determination thus lies within the province of the trial commissioner, and we will not disturb that conclusion unless so unreasonable as justify judicial interference. Bailey v. Mitchell, 113 Conn. 721 (1931). See also, Zane v. City of Danbury, 9 Conn. Workers' Comp. Rev. Op. 7, 949 CRD-7-89-11 (1991)
We therefore affirm the Third District denial of the claim and dismiss the appeal.
Commissioners Andrew P. Denuzze and Michael S. Sherman concur.