Opinion
CASE NO. 1293 CRD-2-91-8
AUGUST 23, 1993
The claimant was represented by Ralph J. Alexander, Esq., Brady, Willard and Alexander.
The respondents were represented by Louis George, Esq., now of Hassett, George Siegel, P.C. formerly of Cohen Charnin.
This Petition for Review from the August 6, 1991 Finding and Award of the Commissioner for the Second District was heard August 7, 1992 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners James J. Metro and Roberta D'Oyen.
OPINION
The claimant was employed in the respondent's restaurant as a trainer-server. The claimant had worked in the respondent's restaurant for seven years prior to the following incident. On April 30, 1990, at approximately 9:00 p.m., the claimant, who was physically slight in build, was unexpectedly picked up by a co-worker. The co-worker proceeded to try and carry the claimant across the kitchen floor. In the course of his unorthodox mode of transportation of the claimant, the co-worker slipped on the restaurant's floor and dropped the claimant. The claimant sustained injuries which disabled her and required medical treatment.
The commissioner in his August 6, 1991 Finding and Award awarded the claimant benefits pursuant to chapter 568 as he concluded that the injuries sustained by the claimant arose in and out of the course of her employment. The respondents argued, before the trial commissioner and now on appeal, that the claimant's injuries were the result of unauthorized horseplay. The trier found that the type of activity (i.e. horseplay) which produced the claimant's injuries was tolerated by the employer such an extent that it was a condition of employment. The trier also found that the claimant "did not provoke, induce or ask the co-worker to initiate the act." Paragraph 16.
The respondents took the instant appeal and ultimately ask us to consider whether the trial commissioner erred in concluding that the claimant's injury arose in and out of her employment it was the result of "horseplay."
In support of its contention the respondents rely on both Shedlock v. Cudahy Packing Co., 134 Conn. 672, 676 (1948) and Stulginski v. Waterbury Rolling Mills Co., 124 Conn. 355, 358-59 (1938). From Shedlock, the respondents quote:
Where an employee indulges in horseplay with his fellow employees during the hours of his employment with the resulting injury to himself, his injuries cannot be deemed have any causal connection with his employment. In such case, he has voluntarily departed from the duties of employment and embarked upon an enterprise of his own not contemplated by the terms of his employment.
Shedlock supra.
In Shedlock, the claimant sought compensation for injuries occurring from a fall down an elevator shaft. The trial commissioner found that the fall down the shaft was precipitated by the claimant's wrestling activities on the platform of a loading dock elevator. The respondents contended that the claimant's wrestling caused them to crash through the elevator door and plunge into the shaft. The claimant argued they had stopped wrestling and were leaning on the elevator door in order to peer through a window in the door which allowed one to locate the position of the elevator. The Shedlock court held that the factual findings of the trial commissioner would not be disturbed as the evidence was conflicting and confusing. Further, there was evidence which supported the trier's findings, and it did not appear that the trier could not reasonably reach the conclusion he did. Thus, the court affirmed the commissioner's denial of the claims.
However, the Shedlock court referred to and quoted Mascika v. Connecticut Tool and Engineering Co., 109 Conn. 473 (1929). We think Mascika is particularly applicable to the instant case. In Mascika a sixteen year old boy was hit in the eye by a stick thrown by one of his co-workers who was engaged in horseplay. The Mascika court noted that injuries arising from horseplay are generally not compensable, they lack causal relationship to the employment, are the result of risks created by the claimant, and are not incidental to the employment. However, the Mascika court held that the claimant was merely a "passive actor" in the horseplay activities of his co-workers and that the "skylarking" activities of the workers were incidental to the employment.
The respondents additionally quote Stulginski, supra at as follows, "There must be some reasonable connection between the injury suffered and the employment or condition under which it pursued." We cannot say that the trial commissioner's conclusion was inconsistent with this tenet quoted from Stulginski. Further, the Stulginski court noted that whether an injury arose out of the claimant's employment is a determination which is "essentially one of fact, to be determined in view of all the relevant circumstances, and the conclusion of the commissioner must stand unless it is one he could not reasonably or legally reach upon the subordinate facts." Id. at 365.
As we do not engage in de novo review on appeal, all we can do is determine whether the trial commissioner's factual findings and conclusion were without evidence contrary to law, or based on unreasonable or impermissable factual inference. Fair v. People's Savings Bank, 207 Conn. 535 (1988). We see nothing in the record or the Finding and Award which violates any of the above principles.
Finally, the trial commissioner's conclusion was amply supported by his factual findings. He found that management was aware of the horseplay activities but there was no record anyone was ever punished beyond a verbal reprimand although there was a management policy in which horseplay was opposed. He also found that the kitchen floor was often wet and slippery. Testimony before the trial commissioner indicated that "fooling around in the kitchen is a fact of life in the restaurant business and that some fooling around is essential to morale." Paragraph 14. Based on all of the above we cannot say that the trial commissioner misapplied the law or that his conclusion was without evidentiary support.
We, therefore, affirm the August 6, 1991 Finding and Award of the trial commissioner.
Having concluded as we have we also grant interest pursuant to Sec. 31-301c(b) at the rate permitted by statute on any amount remaining unpaid during the pendency of the appeal.
Commissioners James J. Metro and Roberta D'Oyen concur.