Opinion
CASE NO. 2234 CRB-6-94-12
JUNE 20, 1996
The claimant was represented by John Laudati, Esq.
The respondents were represented by Sarah Posner, Esq.
This Petition for Review from the December 1, 1994 Finding and Dismissal of the Commissioner acting for the Sixth District was heard October 13, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.
OPINION
The claimant has petitioned for review from the December 1, 1994 Finding and Dismissal of the Commissioner for the Sixth District. In that decision, the commissioner concluded that the claimant's injury did not arise out of and in the course of her employment as a mental retardation worker. In support of her appeal, the claimant contends that the accident arose out of and in the course of her employment because her employment required her to travel to the client's home, and thus her traveling to and from the client's home constituted an act incidental to her employment which was done for the joint benefit of her and the employer, with the consent of the employer. We affirm the trial commissioner.
The commissioner made the following relevant findings of fact. The claimant worked as a mental retardation worker for the employer. Her employment required her to visit homes, rented from private individuals, in which mentally retarded adults live. She did not receive mileage reimbursement for her travel. On November 20, 1992, the claimant drove from her home to a client's home in Bristol, which was her usual assignment. The claimant completed her assignment for the day 10:00 A.M., at which time she signed a log-out sheet. She then got into her car in order to travel to her own home, and thereupon found that her car would not start. The claimant left her car to get help, and twisted her ankle in the driveway of the client's home. The claimant does not allege that she was on her way to another assignment when the injury occurred.
Whether the trier erred in finding that the claimant's injury arose out of and in the course of her employment requires a factual determination which we will not disturb unless it is found without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People's Savings Bank, 207 Conn. 535 (1988). This Board has recently stated the following:
It is well settled that "[i]n order to come within the course of the employment, an injury must occur (a) within the period of the employment; (b) at a place the employee may reasonably be; and (c) while the employee is reasonably fulfilling the duties of the employment or doing something incidental to it." McNamara v. Hamden, 176 Conn. 547, 550-51 (1979). "An injury is said to arise out of the employment when (a) it occurs in the course of the employment and (b) is the result of a risk involved in the employment or incident to it or the conditions under which it is required to be performed." Tovish v. Gerber Electronics, 32 Conn. App. 595, 607 (1993), affirmed, 229 Conn. 587 (1994), quoting Dombach v. Olkon Corporation, 163 Conn. 216, 221-22 (1972); Bell v. U.S. Home Care Certified of Connecticut, 1792 CRB-1-93-8 (decided April 21, 1995). The question of whether an injury meets these criteria is factual in nature and is committed to the trial commissioner's discretion. Tovish, supra, 605.
Kaplan v. State of Connecticut/Department of Health Services, 14 Conn. Workers' Comp. Rev. Op. 296, 297-298, 2012 CRB-1-94-4 (Sept. 11, 1995).
In support of her appeal, the claimant relies upon Hughes v. American Brass Co., 141 Conn. 231 (1954) and Dombach, supra. The claimant's reliance on Dombach, supra, is misplaced, as that decision involved a claimant who was on a business trip away from home, who regularly traveled in order to make service calls, and who was reimbursed by his employer for travel expenses, meals, and motel charges. Similarly, Hughes is factually distinguishable as it involved an injury which occurred on a parking lot which was owned by the employer and was paved, lighted, and generally maintained by the employer for the convenience of the employees. In the instant case, the trial commissioner found that there was insufficient evidence to find that the driveway of the client's home where the injury occurred was controlled by the employer. Because the claimant has not filed a motion to correct, we are limited to the findings of the trial commissioner. Spindler v. Med-Center Home Health Center, 12 Conn. Workers' Comp. Rev. Op. 130, 132, 1474 CRB-7-92-7 (Feb. 28, 1994); see also Vanzant v. Hall, 219 Conn. 674, 681 (1991).
In the instant case, the commissioner's conclusion that the claimant's injury did not arise out of and in the course of her employment is amply supported by the record, including the trial commissioner's finding that the claimant had completed her work assignment for the day at 10:00 A.M. prior to her injury; the finding that she was not reimbursed for travel expenses; and the trial commissioner's determination that the evidence did not support a finding that the driveway was under the control of the employer. See Moffett v. Tighe Williams Salon, 12 Conn. Workers' Comp. Rev. Op. 83, 1489 CRB-4-92-8 (Feb. 9, 1994) (claim dismissed where employee's injury occurred in an area in front of employer's facility which was not controlled by employer); see also Irving v. Hoyland, 4 Conn. Workers' Comp. Rev. Op. 25, 249 CRD-7-83 (March 4, 1987) (where a visiting nurse's aide was injured while traveling to her home after visiting her last patient, the injury did not arise out of and during the course of her employment).
The trial commissioner's decision is affirmed.
Commissioners Roberta Smith Tracy and Amado J. Vargas concur.