Opinion
CASE NO. 949 CRD-7-89-11
JANUARY 4, 1991
The claimant was represented by Gerald F. Stevens, Esq., and Kristin A. Dorney, Esq., both of Stevens, Moran, Carroll Carveth.
The respondent was represented by William C. Brown, Esq., McGann, Bartlett Brown.
This Petition for Review from the November 24, 1989 Finding and Dismissal of the Commissioner for the Seventh District was heard June 1, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Andrew Denuzze and George Waldron.
OPINION
Claimant was a police officer who in the process of dressing at home on or about February 7, 1989 in preparation for the midnight to 8:00 a.m. shift accidentally shot himself in the leg. The Seventh District dismissed the claim for benefits under chapter 568. On appeal claimant argues it was error (1) to conclude the injury did not arise in and out of the course of his employment and (2) to discuss a defense of wilful and serious misconduct when that defense was not raised by the respondents in the formal hearings before the trial commissioner. Sec. 31-275(12) provides the following definition of "arising out of and in the course of employment."
"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 by the direction, express or implied, of the employer. (A) In the case of a policeman and a fireman "in the course of his employment" shall encompass his departure from 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 aggravation of a preexisting disease, compensation shall be allowed only for such proportion of the disability or death due to the aggravation of such preexisting disease as may be reasonably attributed to the injury upon which the claim is based.
Claimant contends the accidental shooting occurred while the claimant was in the act of departing from his abode. It is apparent the trial commissioner did not so find. Our limited review need only determine whether the trial commissioner's conclusion was contrary to law, without evidence or based on illegal or unreasonable factual references. Besade v. Interstate Security Services, 212 Conn. 441 (1989); Fair v. People's Savings Bank, 207 Conn. 535 (1988).
The commissioner found the gun discharged while the claimant was in the process of dressing himself. (See Paragraphs #21 22 of the November 24, 1989 Finding and Dismissal as amended by the claimant's Motion to Correct of February 20, 1990 and granted in part.) That finding was based on facts in evidence. We cannot say that the failure to conclude the injury occurred while the claimant was in the act of departing his abode is so unreasonable as to justify our interference. Bailey v. Mitchell, 113 Conn. 721 (1931).
The commissioner's decision did not discuss the second issue raised on appeal. The finding on the first issue obviated the necessity for doing so. We therefore do not consider the relevance or lack of relevance of the wilful misconduct defense.
The decision below is affirmed and the appeal is dismissed.
Commissioners Andrew Denuzze and George Waldron concur.