CASE NO. 220 CRD-6-83Workers’ Compensation Commission
SEPTEMBER 9, 1983
The Claimant-Appellee was represented by William F. Mangan, Jr., Esq. Attorney Mangan submitted a brief, but was not present for oral argument.
The Respondents-Appellants were represented by Robert M. Brennan, Esq.
This Petition for Review from the March 25, 1983 Amended Finding and Award of the Commissioner for the Sixth District was heard on July 29, 1983 before a Compensation Review Division Panel consisting of Commissioners Gerald Kolinsky, John A. Arcudi and A. Paul Berte.
FINDING AND AWARD
1. Paragraph 1 of the Commissioner’s October 1, 1981 Finding is made Paragraph 1 of this Division’s Finding and Award.
2. Paragraph 2 of the Commissioner’s March 25, 1983 Amended Finding is made Paragraph 2 of this Division’s Finding and Award.
3-10. Paragraphs 3 through 10 of the Commissioner’s October 1, 1981 Finding are made Paragraphs 3 through 10 of this Division’s Finding and Award.
11. At the time of said accident, the claimant was not acting within the course of her employment, having deviated and departed therefrom prior to such time.
12. At such time, the claimant was not within the period of her employment, not at a place she might reasonably be incidental to the employment, and not fulfilling the duties of her employment or doing something incidental to it.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the claim of the claimant be, and hereby is, DISMISSED.
This Finding and Award was written by Commissioner Gerald Kolinsky for the entire panel.
OPINION
GERALD KOLINSKY, Commissioner.
This case presents a relatively simple fact situation. Claimant was employed as a Field Claims Adjuster for the Respondent-Employer-Appellant, Foremost Insurance Company, covering several New England states and working out of her home in Marlborough, Connecticut. She had the use of an employer furnished automobile. On May 29, 1981, Claimant received several calls from one of her company’s policyholders who had sustained a fire loss. The policyholder, a Mr. Doherty, lived in Saugus, Massachusetts, but on Friday, May 29, 1981 he was in New London, and was having difficulty locating the insurance company draft which had been mailed to him. Claimant went to New London to meet with Mr. Doherty to discuss the whereabouts of the draft, arriving in New London about 6:30 p.m. In the course of their discussion, it appeared that Mr. Doherty had no way of getting to his home in Saugus, Massachusetts from New London, and Claimant consented to drive him to Hartford, where he could get a bus or train to Saugus.
Claimant and her insured, however, did not depart immediately for Hartford, but rather decided instead to go to the Dog Track at Plainfield, Connecticut, remaining there until approximately 11:30 p.m. On leaving the Dog Track, Claimant and Mr. Doherty resumed their journey and wished to stop at a restaurant for something to eat. She became lost on the highway and found herself on Route 6. At that point she decided to go to her home in Marlborough to get something to eat, and to shower, and then take Mr. Doherty to Hartford. While on Route 6 Claimant struck a guard rail in order to avoid hitting a deer, and the accident caused her to injure her back. The accident occurred at approximately 3:00 a.m. on May 30, 1981 when Claimant’s auto was westbound on Route 6 in the Town of Andover.
From an Award in favor of the Claimant issued on October 1, 1981 the Respondents-Appellants appealed to this tribunal, which remanded the matter to the Commissioner for the Sixth District on September 13, 1982 for further findings. The Commissioner issued his Amended Finding and Award on March 25, 1983, from which the Respondents again appealed, assigning as error numerous Findings made by the Commissioner as being unsupported by evidence and contrary to law, and further that the Commissioner’s conclusions are unsupported by the subordinate facts.
Reducing all the grounds of appeal to their common denominator, it is the Appellants’ contention that at the time of the injury, i.e., at 3:00 a.m. on May 30, 1981, Claimant did not suffer an accidental injury which arose out of and during the course of her employment, that she was on a personal frolic, which was in no way in furtherance of her employment, or incidental thereto.
Claimant avers that she was, at the time of the accident, within the course of her employment and in furtherance of her employer’s business, namely, taking a client to the bus station at Hartford, citing Lake v. Bridgeport, 102 Conn. 337 (1925) among others, and that any departure from her employment had been temporary, and ceased when she was again headed towards Hartford. The controlling law applicable to the facts of this case has been stated in Dombach v. Olkon Corporation, 163 Conn. 216 (1972), in which our Supreme Court exhaustively reviewed the applicable principles. It is well settled that an injury which occurs on a public highway while going to or from work is generally not compensable on the theory that an injury at such time does not occur in the course of employment. Lake v. Bridgeport, 102 Conn. 337, 342 (1925), subject to several exceptions noted at page 343 of the Lake decision, as follows:
1) If the work requires the employee to travel on highways;
2) Where the employer furnishes transportation to and from work;
3) Where by the terms of the employment, the employee is subject to emergency calls;
4) Where the employee is injured using the highway in doing something incidental to the employment, for the joint benefit of the employee and employer, with the knowledge and approval of the employer.
The Dombach case deals with the so-called dual purpose trip, and restates the view that “an injury arises in the course of employment when it takes place (a) within the period of the employment, (b) at a place where the employee may reasonably be and (c) while he is reasonably fulfilling the duties of the employment or doing something incidental to it”, supra, 221.
We are of the opinion that the Claimant was not in the course of her employment at the time of the injury. It taxes one’s credulity to accept that she was using the highway doing something incidental to her employment for her employer’s benefit at 3:00 a.m., some eight and one half hours after she met her insured at New London, and after she and he had decided to attend the Dog Track, followed by an attempt to find a restaurant, followed by a decision to return to her home for a shower.
We hold as a matter of law that based upon the facts of this case, at the time of the injury the Claimant was not within the period of her employment, she having abandoned the same some hours prior thereto, she was not at a place she might reasonably be expected to be at that time, and she was not reasonably fulfilling the duties of her employment at that time, or doing something incidental to it.
That is not to say that one may not make a minor deviation from one’s employment, yet retain the concurrent business purpose, but such was not the situation presented herein.
We have modified Paragraph 11 of the Commissioner’s Finding and Award of October 1, 1981, and have added Paragraph 12 thereto. We hold that the nature of the departure herein was so radical and so prolonged that the employment nature of the trip was abandoned long before the injury occurred, and therefore reverse the decision of the Commissioner.
The case is remanded for his further action in accordance with this opinion.
Chairman Arcudi and Commissioner Berte join in this opinion.