Opinion
CASE NO. 1067 CRD-1-90-7
DECEMBER 6, 1991
The claimant was represented by William C. Brown, Esq., McGann, Bartlett Brown.
The respondents were represented by Edward D. O'Brien, Esq.
This Petition for Review from the June 22, 1990 Finding and Award of the Commissioner for the First District was heard April 26, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Gerald Kolinsky and Angelo dos Santos.
OPINION
An intoxication affirmative defense is the basis of respondents' appeal. The parties agreed below that claimant sustained injuries in a one car auto accident February 10, 1987 arising out of and in the course of employment The issue decided by the commissioner was whether claimant was intoxicated at the time, and if so, did the intoxication cause the injuries for which claimant was seeking benefits.
The commissioner found claimant attended a business meeting at the Parma Restaurant that evening and he left it at approximately 9:45 P.M. Shortly thereafter the accident occurred. Specifically on the intoxication issue the trial commissioner found, "During and after the meeting claimant had not acted in any unusual manner and appeared to be normal and sober. He also appeared to be sober and normal functioning when he left the Parma Restaurant alone in his automobile at about 9:45 p.m." Paragraph #6 of the Finding and Award. The commissioner then concluded that the respondents failed to sustain their burden of proof as to the affirmative defense of intoxication under Sec. 31-284(a).
Section 31-284(a) provides in pertinent part:
"[C]ompensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication." (emphasis ours). In Corcoran v. Corcoran Moving and Storage, Inc., 1030 CRD-5-90-6 (October 31, 1991) we reviewed Liptak v. State, 176 Conn. 320, 322 (1978) (per curiam) which held, "The employer asserting such a defense must show not only the misconduct itself but also that the injury was caused by the misconduct." In the instant case, quite clearly as stated in Paragraph #6 of the Finding and Award, there were facts found from which the trial commissioner could have concluded that intoxication did not cause the automobile accident.
Despite their disagreement with the commissioner's conclusion the respondents did not file a Motion to Correct and therefore the facts as found by the trial commissioner must stand. Mack v Blake Drug, 152 Conn. 523 (1965). In any case there was evidence to support the commissioner's findings and his conclusions. We therefore affirm the First District and dismiss the appeal.
Pursuant to Sec. 31-301c(b) we grant interest at the rate permitted by statute on any amount remaining unpaid during the pendency of the appeal.
Commissioners Gerald Kolinsky and Angelo dos Santos concur.