PAUL ALLEN, (DECEASED), BEVERLY ALLEN, DEPENDENT WIDOW, CLAIMANT-APPELLANT vs. NORTHEAST UTILITIES, RESPONDENT-APPELLEE

CASE NO. 216-CRD-5-83Workers’ Compensation Commission
FEBRUARY 22, 1985

The claimant was represented by Sally S. King, Esq. of the firm of Robinson Cole.

The respondent was represented by Trudie R. Hamilton, Esq., of the firm of Carmody Torrance.

This Petition for Review from the March 14, 1983 Finding and Award of the Commissioner for the Fifth District was argued on December 9, 1983 before a Compensation Review Division panel consisting of Chairman, John Arcudi and Commissioners Rhoda Loeb and Andrew P. Denuzze.

FINDING AND AWARD

The Finding and Dismissal of Claim by the Commissioner is affirmed and adopted and made the Finding and Dismissal of Claim of this Division.

OPINION

JOHN ARCUDI, Chairman.

Claimant, the dependent widow of the decedent, Paul Allen, here appeals the Fifth District dismissal of her claim for survivor’s benefits. Paul Allen was an employee of the Respondent Appellant Northeast Utilities at its Bantam hydroelectric facility. On Friday, September 26, 1980, he reported for work there slightly prior to the normal 7:30 A.M. to 4:00 P.M. work shift. At about 11:45 A.M., he left his work station for a lunch break at the nearby Bantam Pub with a fellow employee.

The decedent remained at the Pub for more than three hours until after 3:00 P.M. His fellow employee had left the Pub and returned to work at 12:30 P.M. At about 2:30 P.M., one of decedent’s fellow employees telephoned the Pub to inform the decedent that supervisors were inquiring about his whereabouts. Allen left the Pub between 3:10 P.M. and 3:15 P.M. after having consumed a considerable amount of beer, but he never returned to his work station that day. His personal tools remained at the powerhouse and his car remained in the vicinity of the powerhouse where it had been parked presumably the morning of September 26.

At the Bantam facility there were two structures, a gatehouse near a dam on the Bantam river, and a powerhouse situated to the west of and below the gatehouse. Connecting these structures was a large pipe unit called a penstock situated a number of feet above the river area. This penstock had been utilized more than once by Allen as a short cut between the two structures. Adjacent to and northerly of the penstock was a wooded cliff area which angled downwards toward the powerhouse. At about 2:30 P.M., Sunday, September 28, 1980, Paul Allen’s body was found lying on rocks below the penstock and cliff and adjacent to the north side of the Bantam river. An analysis of blood traces on the rocks at the river bed revealed that Allen had fallen from a height above and had then moved about twenty-three feet after impact.

Post-mortem tests revealed decedent had lived for some hours after the fall and that he was sober at time of death. His death was caused by fractures of the skull with contusion of the brain and fracture dislocation of the thoracic spine. The time required for decedent’s system to metabolize the alcohol consumed at the Bantam Pub was about six hours after the final ale consumed there. On the facts as here summarized, the trial Commissioner concluded that decedent’s death was not caused by an injury arising out of and in the course of the employment.

Claimant’s appeal cites Saunders v. The New England Collapsible Tube Company, 95 Conn. 40 (1920) and argues that the Commissioner’s conclusion was erroneous as a matter of law. Justice Wheeler in that case stated, “There is a natural presumption that one charged with the performance of a duty, and found injured at the place where duty may have required him to be, is injured in the course of and as a consequence of the employment,” Saunders v. The New England Collapsible Tube Company, supra, 43. Appellant argues that had the Commissioner given proper weight to that “natural presumption,” he would have found for her. The flaw in that argument arises from the failure to understand the nature of Justice Wheeler’s presumption. It is a presumption of fact not one of law, O’Dea v. Amodie, 118 Conn. 58, 61 (1934). Once countervailing evidence is presented, then the presumed fact must be weighed with all the other evidence in the matter.

Four cases are illustrative of the presumption argument first raised in Saunders. In two, the ruling was against the claimant, Reeves v. Dady Corporation, 95 Conn. 627 (1921), reported in the same volume as Saunders, and Labbe v. American Brass Co., 132 Conn. 606 (1946); and in two, the claimant was successful, Judd v. Metropolitan Life Insurance Co., 111 Conn. 532 (1930) and Keeler v. Sears Roebuck Co., 121 Conn. 56 (1936). the cases where the claimant did not prevail, “The Commissioner had the right to draw reasonable inferences, and upon the facts found the . . . Court could not hold illogical or unreasonable the conclusion that the injury did not arise out of and in the course of the employment,” v. American Brass Co., supra, 612. Where the claimant prevailed, the Commissioner drew the contrary inference, Emhoff v. State of Conn., 139-CRD-2-82, 2 Conn. Workers’ Comp. Rev. Op. 7 (1983).

In the instant cases, claimant contends that the inference which the Commissioner must draw is that given the location where the body was found, the decedent left the Bantam Pub for the work site and was proceeding along the penstock route to go to the powerhouse when he fell to the rocks below. But this argument is seriously flawed. An equally possible inference is that the decedent never returned to the work site that day or that decedent drove his car away from the parking site on September 26th and returned it later that night or that weekend. These and other possible inferences from the given facts all would negate an attempt to return to work for the last hour of the September 26 workday. But it is not for us as an appellate tribunal to find facts or draw inferences from them. “It is the function of the Commissioner to determine the credibility of witnesses and to find facts, and the finding will not be corrected unless it contains facts found without evidence or omits material facts that are admitted or undisputed,” True v. Longchamps, 171 Conn. 476, 478 (1976), Glenn v. Stop Shop, Inc., 168 Conn. 413, 416 (1975). Since there were sufficient facts in evidence to support it, we cannot quarrel with the Commissioner’s conclusion that the decedent did not return to work on September 26 when he left the Bantam Pub.

The decision of the Commissioner is affirmed and the appeal is dismissed.

Commissioners Loeb and Denuzze concur in this opinion.

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