CASE NO. 792 CRD-3-88-12Workers’ Compensation Commission
MARCH 21, 1990
The claimant was represented by Hugh F. Keefe, Esq., and Michael McClary, Esq., both of Lynch, Traub, Keefe and Errante.
The respondents were represented by Kevin Maher, Esq., Maher and Williams.
This Petition for Review from the November 22, 1988 Finding and Award of the Commissioner for the Third District was heard December 1, 1989 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners A. Thomas White, Jr., and James Metro.
OPINION
JOHN ARCUDI, CHAIRMAN.
The claimant West Haven police officer was working a special service Job at the Casino Restaurant in West Haven on December 15, 1984. “Special service” jobs are arranged through the employer and remuneration for that work is included in an employee’s regular pay, but the special service portion earned is designated as additional pay.
A policeman on a special service job retains normal police authority, and has the same duties as on regular assignment. At 2:30 a.m. on December 15, claimant was escorting an inebriated patron from the premises. An altercation occurred with the customer, Mark Shaw. Shaw punched claimant in the face causing his hat and glasses to fall off. Another blow by Shaw caused the claimant to fall to one knee, hit his back against a railing, and finally fall to the ground with Shaw atop him. Other nearby patrons pulled Shaw away, and an off-duty police detective, Sgt. Peter Bontempo, assisted claimant and handcuffed Shaw.
After Shaw was handcuffed and lying on the ground, claimant’s right foot kicked Shaw on the right temple. Shaw subsequently died. The claimant alleges he suffered a concussion syndrome, right leg injuries, cervical and lumbar sprains, contusions of the head and face, and a psychiatric disorder of acute anxiety reaction.
Respondents contest the Third District November 22, 1988 Finding and Award holding claimant’s injuries arose out of and in the course of employment. They argue further that the injuries sustained by claimant were the result of his own willful and serious misconduct and therefore not compensable under Sec. 31-284(a).[1]
A legal conclusion that injuries were caused by the employee’s own misconduct is dependent upon the underlying factual findings of the trial Commissioner. See e.g. Liptak v. State 176 Conn. 320 (1978) (per Curiam); Gonier v. Chase Companies, Inc., 97 Conn. 46 (1921) (affirmative defense of intoxication or willful and serious misconduct is a factual question) and Fair v. People’s Saving Bank, 207 Conn. 535
(1988); Herbst v. Hat Corporation of America, 130 Conn. 1
(1943) (determinations of whether injury arose in and out of the course of employment is a factual question).
We appreciate that respondents differ in their assessment of the factual and legal conclusions to be drawn from the evidence presented at the trial level, but we do not engage in a de novo review. Fair v. People’s Savings Bank, 207 Conn. 535
(1988). Where the evidence below was conflicting we will not disturb the conclusions of the trial Commissioner. We need only determine whether there was evidence to support the trial Commissioner’s conclusions and whether the conclusions were contrary to law or based on unreasonable or impermissible factual inferences. Id.
As there was evidence to support those conclusions, we affirm the November 22, 1988 Finding and Award and dismiss the appeal
As required by 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 A. Thomas White, Jr., and James Metro concur.