Opinion
CASE NO. 1574 CRB-1-92-11
JUNE 13, 1994
The claimant was represented by Brian W. Prucker, Esq., Fitzgerald Prucker.
The respondents were represented by Stephen Ekern, Esq. and James L. Pomeranz, Esq., Pomeranz, Drayton Stabnick.
This Petition for Review from the November 16, 1992 Finding and Dismissal of the Commissioner for the First District was heard December 2, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners George A. Waldron and Donald H. Doyle, Jr.
OPINION
The claimant has petitioned for review from the First District Commissioner's November 16, 1992 Finding and Dismissal. The trial commissioner found that the claimant's actions which led to his injury constituted wilful and serious misconduct which deprived him of a workers' compensation remedy for his injuries. We affirm the trial commissioner.
The trial commissioner found the following facts. On December 12, 1989, Nadine Devlin, a detective with the Windsor police department, was in plain clothes returning from an investigation in a semi-marked police cruiser when she observed the claimant, a flagman at the Route 291/Interstate 91 road construction site in Windsor. The claimant was standing on the side of the road with his back toward the road. The claimant then turned and appeared to be indicating to Devlin that she should proceed in her vehicle when he suddenly jumped in front of the vehicle waving his flag back and forth. The claimant began shouting obscenities. Devlin exited her cruiser and identified herself as a police officer. The claimant continued to shout obscenities, at which time Devlin told the claimant he was under arrest. The claimant refused to allow himself to be handcuffed; he pushed Devlin away and ran off. A second police unit was called to the scene. The claimant was subsequently arrested and charged with breach of peace in violation of General Statutes Sec. 53a-181 and interfering with a police officer in violation of Sec. 53a-167a. The claimant alleges that he sustained injuries to his shoulders during his arrest.
Based on these facts, the trial commissioner further found that the claimant's actions, namely, resisting arrest, constituted wilful and serious misconduct sufficient to disqualify the claimant from receiving workers' compensation pursuant to General Statutes Sec. 31-284(a). Accordingly, the commissioner dismissed the claim for compensation. This appeal followed.
General Statutes Sec. 31-284(a) provides in pertinent part: "An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as follows, except that compensation shall not be paid when personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. . . ." (Emphasis added.)
The claimant first argues that the commissioner improperly found that he resisted arrest. The evidence before the commissioner, however, amply supported his finding in this regard. Detective Devlin testified that she informed the claimant that he was under arrest, took out handcuffs and reached for the claimant in order to take him into custody. The claimant then resisted the arrest by pushing the handcuffs away, shoving Devlin backwards and running away. See transcript of 8/25/92, p. 71. Such conduct constitutes the offense of interfering with an officer, commonly known as "resisting arrest", in violation of General Statutes Sec. 53a-167a. See State v. Williams, 205 Conn. 456, 468-69 (1987); In Re Adalberto S., 27 Conn. App. 49, 55-56, cert. denied, 222 Conn. 903 (1992). The fact that Devlin did not witness the claimant's ultimate apprehension by other officers is irrelevant as the claimant had already violated Sec. 53a-167a by resisting Devlin in the performance of her duties.
Detective Devlin testified that the claimant was later found guilty of interfering with a police officer and fined $100.
The claimant next argues that he is entitled to compensation benefits because his injury was one arising out of and in the course of his employment. This argument, however, misses the point.
Specifically, the claimant contends, in his brief that this case is one of "positional risk": "In this case, the claimant was not engaged in a personal matter, but was engaged in proper duties assigned and at the location directed by the employer. . . . The test is whether the assault is connected with the victim's employment or is unrelated and personal in nature." (Citation omitted.) We recently discussed this doctrine in Nolan v. Brennan Concrete Corporation, 11 Conn. Workers' Comp. Rev. Op. 224, 228-29, 1362 CRD-7-91-12 (1993), which was decided after the claimant filed his brief in this matter but shortly before oral argument.
Under General Statutes Sec. 31-284(a) compensation may be denied for an injury arising out of and in the course of employment where the injury has been caused by the wilful and serious misconduct of the injured employee. Thus, an employee sustaining an otherwise compensable, on-the-Job injury will be disqualified from compensation because of the wilful and serious nature of his misconduct which causes that injury. Notwithstanding the fact that it arose out of and in the course of his employment, the claimant's injury here was the result of his intentional interference with a police officer and the events followed as a result of that criminal conduct. The trial commissioner therefore properly disqualified the claimant from benefits under Sec. 31-284(a). See Nolan v. Brennan Concrete Corporation, 11 Conn. Workers' Comp. Rev. Op. 224, 229-30, 1362 CRD-7-91-12 (1993).
We, therefore, affirm the trial commissioner and deny the appeal.
Chairman Jesse Frankl and Commissioner George A. Waldron concur.