Opinion
CASE NO. 139 CRD-2-82
MAY 11, 1983
The Claimant-Appellee was represented by Edmund T. Grady, Jr., Esq.
The Respondent-Appellant was represented by Robert G. Girard, Esq., Assistant Attorney General.
This Petition for Review from the March 10, 1982 Decision of the Commissioner for the Second District was argued on October 29, 1982 before a Compensation Review Division Panel consisting of Commissioners John Arcudi, A. Paul Berte and Gerald Kolinsky.
FINDING AND AWARD
1. The Finding and Award of the Second District Commissioner is affirmed and adopted as the Finding and Award of this Division.
OPINION
Claimant's decedent, Thomas Emhoff, was an employee of the University of Connecticut at Storrs. He had been employed as an electrician by the State for six years prior to his death November 21, 1979. On that date he and a fellow worker, Frank May, were on the second shift, 4:00 p.m. to 12:00 midnight engaged in disconnecting certain electrical fixtures in the new University Library. The two workers had completed some work on the second floor and proceeded to the open stairwell in order to descend to the first floor.
As they were walking toward the stairs, there was some conversation between the two about bannisters and sliding down bannisters as youngsters. The decedent was closer to the railing of the open stairwell. He leaned over it to look down and then suddenly fell to his left down the open stairwell landing on his back on a concrete floor at the bottom of the stairwell approximately forty feet below. Decedent was then rushed to Windham Community Memorial Hospital where he died as a result of injuries sustained in the fall.
There were inconsistencies between the testimony given by May at the hearing and a previous written statement made by him shortly after the accident. However, the Commissioner credited the hearing testimony. Respondent-Appellant argues that the Commissioner should have found that the decedent's fall occurred because he attempted to slide down the bannister and that such an act constituted horseplay, skylarking or willful misconduct rendering the injuries and subsequent death noncompensable.
Respondent cites Mascika vs. Connecticut Tool and Engineering Co. 109 Conn. 473 (1929), DiLauro vs. Bassetti 133 Conn. 642 (1947), Shedlock vs. Cudahy Packing Co. 134 Conn. 672 (1948) and Stulginski vs. Waterbury Rolling Mills Co. 124 Conn. 355 (1938) in support of its position. Perhaps these citations might have availed the Appellant if the Commissioner had found the fatal fall to have occurred as a result of decedent's sliding down the bannister, but the Commissioner did not so find. Instead the Commissioner relied on May's direct evidence corroborated by the photographic exhibits concerning the size, shape and construction of the stair bannister.
Given the facts as actually found by the Commissioner the McNamara vs. Hamden 176 Conn. 547, 550 (1979) rule governs the situation. This was recently reiterated by the Appellate Session of the Superior Court, Tusman vs. Spiegel Zemicnik, Inc. 38 Conn. Sup. 607 (1982) upholding a decision of this tribunal, 63 CRD-3-81, 1 Conn. Workers' Comp. Rev. Op. 153 (1982). The injury occurred (a) within the period of employment, (b) at a place where the employee might reasonably be, and (c) while the employee was reasonably fulfilling the duties of the employment.
The decision of the Commissioner is affirmed and the appeal is dismissed.