Opinion
CASE NO. 75-CRD-3-81
AUGUST 11, 1982
The Claimant-Appellee was represented by Stanley Jacobs, Esq.
The Respondents-Appellants were represented by Horace Trotta, Esq.
This Petition for Review from the June 12, 1981 Decision of the Commissioner for the Third District was argued March 19, 1982 before a Compensation Review Division Panel consisting of Commissioners John Arcudi, Robin Waller and Darius Spain.
FINDING AND AWARD
1-4. The introductory synopsis and paragraphs 1 through 4 of the Commissioner's Finding are affirmed and adopted as paragraphs 1 through 4 of this Division's Finding.
5. His supervisor, aware of decedent's impaired health assigned him to lighter duty work.
6. Verbal altercations over work related matters between the two co-workers had been common and well known to the employer and fellow employees before May 30, 1978. Decedent was known by them to have a quick temper but none of the previous quarrels had resulted in physical violence.
7. The last sentence of paragraph 5 of the Commissioner's Finding is made paragraph 7 herein as follows:
It is found that decedent felt he was subject to constant harassment by his co-worker about his ethnic background and the manner in which he performed his work.
8. Paragraph 6 of the Commissioner's Finding is affirmed and adopted as paragraph 8 herein.
9. The written opinion of Dr. Oscar Roth, a New Haven cardiologist, introduced as an exhibit in evidence, stated that decedent's cardiac arrhythmia and ischemia were probably caused by the severe emotional upset combined with the severe physical exertion occurring at work May 30, 1978 thereby resulting in decedent's death. It is so found.
10. Decedent's injury and death occurred in the course of his employment and arose out of it in that it occurred in the office which decedent was cleaning, a task and location incidental to the employment.
A-C. Paragraphs a through c of the Commissioner's Award are affirmed and adopted as A through C of this Division's Award.
OPINION
The issues in this matter center on the "arising out of the employment" requirement of the Workers' Compensation Law. Claimant's decedent on May 30, 1978 while in the course of his employment with the respondent City of New Haven was cleaning an ashtray in an office. Snurkowski, his fellow employee objected to the water being spilled and the noise being made in the process. An argument ensued. Snurkowski testified that the two exchanged blows and the decedent chased him out of the building into the yard.
The claimant widow testified that claimant told her right after the occurrence that Snurkowski had hit him and he chased Snurkowski out of the building around some trucks in the yard in order to retaliate. Within a few hours of the altercation Claimant-Appellee's decedent died from a myocardial infarction caused by the stress of that occurrence superimposed upon preexisting atherosclerosis of the coronary arteries, involving also the occlusion of a coronary artery.
There was also evidence introduced that Snurkowski and the decedent had engaged in a number of non-physical verbal altercations over work-related matters. Decedent was an epileptic whose emotions and temper were rather easily aroused, especially due to the belief that Smurkowski constantly disparaged decedent's ethnic background. The employer and fellow employees knew about these previous verbal tiffs and about decedent's epilepsy and impaired health. Decedent had had petit mal seizures on the job, and he had been assigned to lighter work duties due to his health condition.
The Commissioner credited decedent's version of the quarrel's origin, as presented through the testimony of his widow and their daughter. This testimony at the hearing was essentially the same as their statements made to the New Haven police soon after the death; the police report was introduced into evidence. That report also showed that Snurkowski's testimony was consistent with his prior statements. Snurkowski's version in both instances, of course, had the decedent delivering the first blow.
Respondent-Appellant argues that even if Snurkowski verbally provoked decedent and delivered the first blow, the effect of Snurkowski's verbal and physical provocations had ceased when decedent chased his fellow employee out of the building into the yard. This argument essentially holds that what happened inside the office may have arisen out of the employment but not what went on in the yard. It also contends that the decedent as pursuer had become the aggressor. In making there arguments appellant relies mainly on the rule laid down in Jacquemin vs. Turner and Seymour Manufacturing Company, 92 Conn. 382 (1918).
We think a more appropriate precedent would be Stulginski vs. Waterbury Rolling Mills Company, 124 Conn. 355 (1938). Chief Justice Maltbie's opinion in 1938 stated:
"In Munro vs. Williams, 94 Conn. 377, we pointed out the Jacquemin case was . . . a personal dispute and quarrel . . . Under such circumstances the plaintiff was not entitled to compensation. While the language of the opinion goes somewhat farther, it is authority only in support of that principle and should not be extended beyond it. It was decided in 1918, less than five years after the Compensation Act first took effect. It is at least doubtful whether in view of the later decisions in our own and other courts we would today arrive at the same conclusion upon the facts stated in the opinion."
Stulginski vs. Waterbury Rolling Mills, supra, 357. The instant case resembles Stulginski in that the Commissioner found on sufficient evidence Coppola was not the initial aggressor, rather he was the victim of the fellow employee's aggression. The events which thereafter occurred were provoked by and flowed without interruption from that initial act. Coppola's pursuit of Snurkowski was retaliation for that initial provocation. Given these circumstances, the entire series of events was incidental to and arose out of and in the course of the employment.
Consideration of the other facts involved in that episode serves to enforce that conclusion. The employer and his fellow employees knew decedent was an easily excitable epileptic who suffered petit mal seizures about once a month. They knew that Snurkowski had a tendency to provoke decedent and that the two had quarreled often before. Decedent's work duties on May 30, 1978 placed the two disputants together alone in the office. There was employer approval for their proximity on that day and on the previous days when such proximity had created quarrels between the two men. Our Supreme Court's most recent treatment of the "incidental to employment" criteria was in McNamara vs. Hamden, 176 Conn. 547 (1979). There the court adopted a test recommended by Professors Larson and Davis.
"`(I)t should not be necessary (in such cases) to bolster the case by adding proof of employer sponsorship of the activity or employer benefit therefrom. It is generally held sufficient that the activity is an accepted and normal one, since it thereby becomes a regular incident and condition of the employment.' 1A Larson, Sec. 22.11, p. 5-72."
Had not the quarreling proclivity of these two employees when assigned to work together become an accepted and regular incident and condition of employment? But even if we rely on the 1938 Stulginski opinion without applying the more liberal 1979 McNamara test, the Commissioner had sufficient basis in the evidence to support the facts found, and a sufficient basis in law for the conclusions reached.
It should be noted that we have changed the wording of some paragraphs of the finding in order that they may be articulated as facts found rather than as narration of testimony
But these rephrasings have left the meaning of those findings unchanged.
The decision of the Commissioner is affirmed.