Opinion
CASE NO. 1143 CRD-4-90-12
JUNE 4, 1992
The claimant was represented by Gerard S. Spiegel, Esq.
The respondents were represented by Kevin J. Maher, Esq., Maher Williams.
This Petition for Review from the December 4, 1990 Finding and Award of the Commissioner At Large acting for the Fourth District was heard October 25, 1991 before a Compensation Review Division panel consisting of the then Commission Chairman, John Arcudi and Commissioners Donald Doyle and Jesse Frankl.
OPINION
Whether decedent's fatal heart attack arose in and out of the course of employment is the issue respondents raise in this appeal. The commissioner's December 4, 1990 ruling so found. This claim was brought by decedent's dependent widow. The decedent was an "outside salesman" employed by the respondent employer, Gerber Electronics. For that employment he maintained an office in his home in Monroe. Apart from that one, Gerber had no office in Connecticut. Its principal place of business was in Norwood, Massachusetts.
On January 20, 1987, this employee suffered cardiac arrest while shoveling snow from the driveway of his Monroe residence. As a result he died that same day. The trial commissioner found in paragraph #28, "that the only reason that the decedent was shoveling snow at said time was so as to allow him to exit driveway in his car in order to call on customers of his and employer, Gerber Electronics".
The respondents attack this conclusion in their Motion to Correct and in their brief and oral argument. They sought corrections to the Finding. In the first four they seek to add to the Finding. They argue that the evidence supporting those four paragraphs was uncontradicted and that therefore the motion as to them should be granted. But that is not the criterion. Evidence may be uncontradicted, but it may not be material and it may fail to convince. The findings of a trier will not be set aside "unless they are without evidence or fail to include material facts which are admitted or undisputed. Grady v. St. Mary's Hospital, 179 Conn. 662 (1980) (citation omitted). Also, corrections need not be considered unless their granting would necessarily alter the legal outcome. Hill v. Pitney Bowes, Inc., 8 Conn. Workers' Comp. Rev. Op. 98, 832 CRD-7-89-3 (1990); Benham v. Edgerton, Inc., 9 Conn. Workers' Comp. Rev. Op. 169, 977 CRD-4-90-2 (1991)."
These same four corrections sought to show that the decedent was not required to make calls while it was snowing, that the widow who testified could not observe the decedent's activities as she remained upstairs, that even on snowy days when the decedent did not have to make calls related to his employment either he or his son would shovel the driveway and that he was going to wait until the snow let up before shoveling. The fifth correction requested wanted the Finding to show that although the decedent wore his business pants and shoes while shoveling, he did not have a coat and tie on. Even if these five paragraphs were added they would not necessarily change the commissioner's ultimate conclusion that the decedent was shoveling in order to clear the driveway so that he might take his car out to make calls on customers. The sixth correction was conclusory and not a factual finding at all.
As stated at the outset the respondents' principal concern with the commissioner's legal conclusion that the death arose in and out of the course of the employment. The applicable law concisely stated in McNamara v. Hamden, 176 Conn. 547, 556 (1979).
In order to be compensable, an injury must (1) arise out of the employment; (2) occur in the course of employment, the injury must take place (a) within the period of employment, (b) at a place where the employee may reasonably be, and (c) while the employee is reasonably fulfilling the duties of the employment or doing something incidental to it. (emphasis ours).
Here the question is whether the snow shoveling was "incidental" to the employment. The finding that the shoveling was being done in order to permit the decedent to exit his driveway and make sales calls was a factual finding forming the basis for the commissioner's ultimate conclusion.
On appeal we may only determine whether the trier's conclusion is contrary to law, without evidence or based on unreasonable or impermissible factual inferences. Fair v. People's Savings Bank, 207 Conn. 535 (1988). The finding was not without evidence. The claimant, the dependent widow, testified that the decedent shoveled the driveway so that he could call on his customers. August 13, 1990 TR at 39. Further there was also testimony that the snowfall or weather was severe enough to result in the closing of the public schools in the town of Monroe. These factors when considered together with the decedent's home office, the respondent employer's not maintaining an office in this state and the testimony that the decedent was expected to maintain accounts and visit with such accounts on a regular basis, support a conclusion that decedent was engaged in an activity arising in and out of his employment at the time of heart attack. See paragraphs 3, 4, 8, 9, 10, 11 and 13. See also September 14, 1990 TR at 18-23.
Even if we do not agree with the trier's findings and conclusions, we could not say that they were based on unreasonable factual inferences or without a basis in evidence. As stated in Fair, supra, our powers on review are limited; we do not engage in a de novo review. Fair specifically ruled that determination of whether an injury arose in and out of the course of employment is a question which is factual in nature and will not be disturbed "unless the case lies clearly one side or the other." Fair, supra at 541, quoting Herbst v. Hat Corp. of America, 130 Conn. 1, 4 (1943).
Fair also relied on Cardillo v. Liberty Mutual Co., 330 U.S. 469, 477-78 (1947):
It is . . . immaterial that the facts permit the drawing of diverse inferences. The . . . Commissioner alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court . . . . Even if such an inference be considered more legal than factual in nature, the reviewing court's function exhausted when it becomes evident that the . . . Commissioner's choice has substantial roots in the evidence and is not forbidden by the law . . .
Fair, supra at 540-41, quoting Cardillo, supra at 477-78
We therefore affirm the commissioner's Finding and Award and dismiss respondents' appeal. Pursuant to Sec. 31-301c(b) we grant interest at the rate permitted by statute on any amount remaining unpaid during the pendency of the appeal.
In this opinion Commissioner Doyle concurs.
I dissent. The sole issue is whether decedent's fatal heart attack arose in and out of the course of his employment. The respondents attack the trial commissioner's finding "That the only reason the decedent was shoveling snow at said time was to allow him to exit driveway in his car in order to call on customers of his and his employer, Gerber Electronics".
The respondents' Motion to Correct paragraphs 1 thru 4 should have been granted since they were uncontradicted and were material to the finding of fact by the trier. These contradictions should have been granted since they would have affected and altered the legal outcome. McQuade v. Ashford, 130 Conn. 478 (1944). The first paragraph provided "Robert Fox stated that due to the nature of the business and the claimant's job responsibilities as a `outside salesman', the decedent did not have to make emergency calls on customers and would not be expected to make calls on customers during periods of inclement weather." See September 14, 1990 TR at 11-12 and 21. The second paragraph was "The claimant states that she could not be sure when the decedent went downstairs the morning of January 20, 1987 that he was engaged in work activities because she remained upstairs due to illness and did not therefore observe activities while he was downstairs." See August 13, 1990 TR at 52. Our Supreme Court has stated that "An injury which occurs in the course of the employment will ordinarily arise out of the employment, but not necessarily so; the injury may arise out of an act or omission for the exclusive benefit of the employee or someone other than the employer while the employee is engaged in the course of his employment. If the injured party was engaged in doing an act which had no direct or incidental relation to his employment, the injury resulting from it is not compensable." Farnham v. Labutis, 147 Conn. 267, 270 (1960).
The trial commissioner found that the only reason that the decedent was shoveling snow at said time was so as to allow him to exit his driveway in order to call on customers of his and his employer, Gerber Electronics. The burden of proof that the decedent employee was fulfilling the duties of his employment or doing something incidental to it was upon the claimant. Woodley v. Rossi, 152 Conn. 1 (1964); Gordon v. United Aircraft Corp., 150 Conn. 328 (1963); Luddie v. Foremost Ins. Co., 5 Conn. App. 193 (1985).
There was further evidence from Mr. Fox, the respondent's corporate marketing manager. See September 14, 1990 TR at 21. Mr. Fox testified that as long as the decedent saw his customers on a quarterly basis he wasn't required to go out during inclement weather during snow storms. This testimony coupled with the fact that the claimant did not present a scintilla of evidence indicating that there was an appointment with a particular customer on that date or that a phone call had been made to a particular customer on that date further indicates that the claimant failed to sustain her burden of proof.
Therefore the trial commissioner erred in failing to grant the Motion to Correct as it applied to the first four paragraphs of said motion. The respondents' appeal should be granted and the trial commissioner's conclusion should be reversed.