Opinion
CASE NO. 912 CRD-4-89-9
FEBRUARY 20, 1991
The claimants was represented at the trial level by Samuel J. Lazinger, Esq. The claimants were represented on appeal by Randy Lynn Cohen, Esq., Bove, Josem Josem.
The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton Stabnick.
This Petition for Review from the September 1, 1989 Finding and Dismissal of the Commissioner for the Fourth District was heard August 10, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Gerald Kolinsky and Angelo dos Santos.
OPINION
Whether the claimants' injuries sustained while riding to work July 26, 1988: arose in the course of employment is the issue here. The salient facts are as follows: Claimants were employees of the respondent B D Molded Products. That employer provided claimants with transportation to and from work via a Company van usually picked up the claimants circa 6:30 a.m. each work day. On July 26, 1988 the van failed to arrive at the usual time. At 6:55 a.m. one of the claimants telephoned the employer's plant and spoke with a foreman. The foreman told the claimant he did not know the van's whereabouts, but he would make inquiry and call back. The claimants did not wait for the foreman's return call but proceeded to accept a ride to work from the daughter of a co-worker.
Claimants did not seek the permission of the employer whether to accept the alternative transportation. Further, the vehicle in which the claimants were injured was not owned by the employer, the employer had no knowledge of the means of transportation and did not authorize the claimants to take it.
As part of the Commissioner's ruling on claimant's Motion to Correct he granted part and denied part. In the part granted he included certain factual findings about the employer's time incentive bonus plan and inducements for employment with the offer of free van rides.
Generally, injuries sustained while on the way to or from work are not compensable. Dombach v. Olkon Corporation, 163 Conn. 216 (1972). Exceptions to the general rule were listed in Lake v. Bridgeport, 102 Conn. 337, 342-43 and restated in Dombach, supra at 222.
(1)If the work requires the employee to travel on the highways; (2)were the employer contracts to furnish or does furnish transportation to and from work; (3)where, by the terms of his employment, the employee is subject to emergency calls and (4)where the employee is injured while using the highway in doing something incidental to his regular employment, for the joint benefit of himself and his employer, with the knowledge and approval of the employer.
Exceptions one and three are not applicable to the instant matter.
In Katz v. Katz, 137 Conn. 134 (1950) the court affirmed the trial commissioner's conclusion that an injury sustained while claimant was walking along a sidewalk a compensable. Of particular importance in that opinion was the fact of claimants heart condition of which the employer was aware and the employer's agreement to provide transportation home each night if the claimant accepted employment at a different location from where he previously had worked. It noted:
In any event, the agreement to provide the transportation was inducement to the continuance of the employment and became an incident to it . . . . Recovery is allowed even though the transportation provided is in vehicle owned by someone other than the employer, when the employer has expressly or tacitly consented to its use. (citations omitted) (emphasis ours).
Id. at 138-39.
Here the commissioner found to the employer had no knowledge of the ride nor did it authorize the alternative means of transportation. See paragraphs 7, 8 and 9 of the September 1, 1989 Finding and Dismissal.
In order for claimants to come within, the exceptions to the general rule the alternative used by the claimants could also have to be for the joint benefit of the claimants and employer. McKiernan v. New Haven, 151 Conn. 496 (1964) held that the mere fact that an employee had to be at work at a designated time and the employee's failure to report to work on time could result in a disciplinary action did not bring an accident sustained on the way to work within the course of employment.
Finally, we cannot substitute our factual findings for those of the trial commissioner. Fair v. People's Savings Bank, 207 Conn. 535, 541 (1988) stated the extent of appellate review.
To the extent that we have articulated a standard for reviewing a determination by a commissioner that an injury arose out of the employment, we have treated this issue as factual in nature and, therefore, have accorded the commissioner's conclusions of a trial judge or jury on the issue of proximate cause. "A finding of a fact of this character [whether the injury arose out of the employment] is the finding of a primary fact . . . . this ordinarily and in this case presents a question for the determination of the commissioner and we have no intention of usurping his function." Herbst v. Hat Corporation of America, 130 Conn. 1, 4, 31 A.2d 329 (1943). "This rule leads to the conclusion that unless the case lies clearly on the one side or the other the question whether and employee has so departed from his employment that his injury did not arise out of its is one of fact." Id., 7-8; see also Woodley v. Rossi, 152 Conn. 1, 6, 202 A.2d 136 (1964); Gordon v. United Aircraft Corporation, 150 Conn. 328, 329, 189 A.2d 384 (1963).
Therefore, we affirm the decision below and dismiss the appeal.
Commissioners Gerald Kolinsky and Angelo dos Santos concur.