Opinion
CASE NO. 1237 CRD-4-91-5
JANUARY 28, 1993
The claimant was represented by Michael O. Sheehan, Esq., Pittman, Sheehan, Soloman and Swaine.
The respondents were represented by David Weil, Esq., Fazzone, Nuzzo and Baillie.
This Petition for Review from the May 22, 1991 Finding and Dismissal of the Commissioner (Commissioner At Large acting) for the Third District acting for the Fourth District was heard April 24, 1992 before a Compensation Review Division panel consisting of the then Commission Chairman, John Arcudi and Commissioners Robin Waller and Angelo L. dos Santos.
OPINION
Claimant's appeal from the commissioner's denial of her claim involves the assertion that recreational behavior arose out of and in the course of her employment. She was employed as a stage actress in a traveling theater production and was part of a nine member group, including a road manager. They traveled from city to city in a van furnished by the employer. The employer also paid for their overnight lodgings. Performances were scheduled between October 5, and December 21, 1989. "Rules of the Road" established by the employer set forth the various responsibilities and duties of the group. Except for those nights when rehearsals were held or other work such as fixing the costumes was required, evenings were free time during which members of the troupe could engage in activities without needing the road manager's permission.
On the evening of November 20, 1989, after arrival at that night's motel, Motel 6 in Columbia, South Carolina, the group had no further employment related responsibilities. Claimant and another cast member walked to a local mall. Upon returning they saw the motel swimming pool. The pool was enclosed by a four foot chain-link fence. On the fence gate there was a sign indicating the pool was closed. Nonetheless claimant climbed the fence and entered the pool area. She left the pool area by climbing the same fence and thus sustained the knee injury which is the subject of her compensation claim. The commissioner dismissed her claim finding that the injury did not arise out of and in the course of the employment.
In contesting that ruling claimant argues that paragraph #17 of the Finding was incorrect. That finding states: "The claimant testified she should not have been in the pool area." She agrees that her presence in the pool area was disapproved by the motel management but does not concede that the theater group management disapproved. The finding is ambiguous, she contends, in that it implies both those entities disapproved. Instead, the argument continues, there should have been a separate finding that the employer approved and acquiesced in the claimant's conduct.
To support that position she maintains the employer in the person of the road manager had acquiesced in such conduct by participating on prior occasions in other similar recreational activities. Further the employer never expressly prohibited her fence climbing nor did it reprimand her for it. Even if the road manager had previously acted as alleged, that does not necessarily prove the employer's acquiescence in the particular events of November 20, 1989, an acquiescence sufficient to cause those activities to have arisen in and out of the course of employment. Nor is the employer's failure to reprimand probative of such acquiescence. Claimant was the only witness. The commissioner observed her testimony, reviewed all the facts presented and drew a conclusion. We cannot disturb such conclusions which are dependent on the weight and credibility to be accorded the evidence. Rivera v. Guida's Dairy, 167 Conn. 524 (1975); Wheat v. Red Star Express Lines, 156 Conn. 245 (1968).
The leading case setting forth tests to determine whether recreational activities are in the course of employment is McNamara v. Hamden, 176 Conn. 547 (1979). It holds that an injury to be in the course of employment must occur: (a) within the period of employment; (b) at a place the employee may reasonably be; and (c) while the employee is reasonably fulfilling duties of the employment or something incidental to it. Id at 550-551. It may arguably be maintained that (a) and (b) are here satisfied since the entire twenty-four hours of the employee's day on such a road trip were in the employment period and the motel premises were an employment place. However, compliance with the third element of the McNamara test is more difficult to establish. The commissioner decided that this employee's "frolic and detour" was not part of the employment duties or anything incidental to them. Therefore he held that the entrance into and the departure from the pool area were not job related. The fact finder's conclusions are not subject to our de novo review. Carmelo Deleon v. Dunkin Donuts, 10 Conn. Workers' Comp. Rev. Op. 39, 1113 CRD-3-90-9 (1992). Fair v. People's Savings Bank, 207 Conn. 535, 541 [1988) stated:
"A finding of a fact of this character [whether the injury arose out of the employment] is the finding of a primary fact. . . . This ordinarily and in this case presents a question for the determination of the commissioner and we have no intention of usurping his function." Herbst v. Hat Corporation of America, 130 Conn. 1, 4 (1943). "This rule leads to the conclusion that unless the case lies clearly on the one side or the other the question whether an employee has so departed from his employment that his injury did not arise out of it is one of fact." Id. 7-8. (citations omitted)
Fair's holding applies to the commissioner's determination in this case. We will not disturb that determination.
We affirm the commissioner's May 22, 1991 dismissal of the claim.
Commissioners Robin Waller and Angelo L. dos Santos concur.