ALLING v. DAVIS GECK, NO. 4483 CRB-7-02-1 (12-20-2002)


CASE NO. 4483 CRB-7-02-1 CLAIM NO. 700002930Compensation Review Board WORKERS’ COMPENSATION COMMISSION
DECEMBER 20, 2002

The claimant was represented by Robert Guendeisberger, Esq., Guendeisberger Taylor, 28 Park Lane, New Milford, CT 06776.

The respondents were represented by David W. Schooleraft, Esq., 131 New London Turnpike, Suite 317, Glastonbury, CT 06033.

This Petition for Review from the January 9, 2002 Finding and Award of the Commissioner acting for the Seventh District was heard July 19, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.


The respondents have petitioned for review from the January 9, 2002 Finding and Award of the Commissioner acting for the Seventh District. They contend on appeal that the trier erred by holding that a shoving incident with a co-worker arose out of and in the course of the claimant’s employment. We find no error of law on appeal, and affirm the trial commissioner’s decision.

The trier found the following facts. The claimant, a longtime employee of the respondent Davis Geck, was working as a maintenance man on October 14, 1992. That morning, the boilers in the employer’s building were not working properly. Though the claimant regularly added water and chemicals to those devices, their general maintenance was the responsibility of a peer named Theodore Kilose and the company’s electricians. When the boilers failed to operate correctly that day, Mr. Klose attempted to restart them by pushing the reset button, which failed to solve the problem. He then summoned the company electrician to replace the reset switch.

At about 8:20 a.m., while the maintenance men were preparing to visit the company cafeteria for their morning break, the claimant was in a washroom when he overheard a conversation between Klose and two co-workers in which Klose was being teased about his inability to restart the boilers on his own. Upon leaving the washroom, someone asked the claimant if he could explain the problem with the boilers. He replied, “I don’t know. I couldn’t restart it this morning. I couldn’t say. It wouldn’t come on. Teddy tried pushing the button, but it would not come on.” Findings, ¶ 8. In reaction to these remarks, Kiose put his hands on the claimant’s chest and shoved him away. The claimant was forced backwards, and in the act of trying to prevent himself from falling, he felt something snap in his back. He continued to work for a little while, but left following an 11:30 a.m. meeting with the manager of Engineering and Safety, who was investigating the pushing incident and considering possible disciplinary action against one or both employees. The claimant, whose history included back surgery, then sought medical treatment, and was kept of out work because of the injury. All three of his doctors opined that his resulting low back problems and disc herniations were caused by the October 14, 1992 shoving incident.

The trier found that the claimant and Klose had been friends for about 20 years prior to that incident, having visited each others’ homes on occasion, and that there was no known ammosity or ill will between the two men. He also noted that the comment regarding Klose’s inability to restart the boilers was a comment that concerned work, and that said comment precipitated the assault. Though there was no evidence that the assault directly resulted from job duties, it nonetheless originated with a response to a workrelated remark. The trier concluded that the assault arose out of and in the course of the claimant’s employment, and found the injury compensable. The respondents have appealed that decision, along with the partial denial of their Motion to Correct.

We begin our discussion of this matter by revisiting our standard of appellate review, as articulated in many prior cases. It is the trial commissioner’s duty to evaluate all of the evidence offered in a workers’ compensation case, and to resolve all issues that concern the credibility of that evidence, such as the accuracy of the testimony offered by witnesses. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195
(1999), cert. denied, 251 Conn. 929 (1999); Phaiah v. Danielson Curtain(C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). The claimant has the burden of proving to the trier that a compensable injury has occurred, i.e., that an injury has arisen out of and in the course of his employment. McNamara v. Hamden, 176 Conn. 547, 550 (1979); Warren v.Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). In making his factual findings, a trial commissioner is not required to include anything other than the “ultimate relevant and material facts essential to the case in hand.” Admin. Reg. § 31-301-3. He is not required to include excerpts from evidence or merely evidential facts, which allows him to omit findings that would not affect the outcome of the case.Phaiah, supra.

On appeal, this board may not retry the facts of the case by weighing the evidence anew, and subjectively determining whether a particular medical report or a bit of testimony has merit. Mosman v. SikorskyAircraft Corp., 4180 CRB-4-00-1 (March 1, 2001); Pallotto v. BlakesleePrestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). Instead, this board may alter the findings only if they contain facts found without any supporting evidence in the record, or if they fail to include material facts that are truly undisputed. Warren, supra; Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp.Rev.Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). As for the legal conclusions drawn from those facts, we may revise them only if they result from an incorrect application of the law or from an unreasonably or illegal inference drawn from those subordinate facts.Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

Because the purpose of the Workers’ Compensation Act is to compensate employees for injuries without fault by imposing a type of strict liability on their employers, a claimant must prove that an injury is causally connected to the employment in order to recover benefits.Spatafore v. Yale University, 239 Conn. 408, 417 (1996). This causal connection is established by demonstrating that an injury has arisen out of and in the course of one’s employment. Id.; McNamara, supra. Proof that the injury arose out of the employment relates to the time, place and circumstances of the accident. Id., 550. “Proof that the injury occurred in the course of the employment means that the injury must occur (a) within the period of the employment; (b) at a place the employee may reasonably be; and (c) while the employee is reasonably fulfilling the duties of the employment or doing something incidental to it.”Spatafore, supra, 418, citing Crochiere v. Board of Education, 227 Conn. 333, 349-50 (1993).

The instant case implicates the “arising out of employment” half of the causal equation. The disputed issue is whether the claimant’s altercation with Klose constituted an intervening or separate causal event that cannot be considered a natural consequence of his employment. As we address the factual backdrop here, we note that none of the eight proposed (and rejected) corrections that the respondents discuss in their brief were erroneously denied by the trier. The first six listed in the brief would not meaningfully add undisputed material facts to the trier’s decision, as the existing findings already imply that such facts existed, albeit with less specificity than the respondents may have preferred. The proposed correction that would have described Klose as having acted “solely to gratify his personal feeling of anger” was not an undisputed fact, as other motivations — horseplay, for example — could explain why a man might push a co-worker after being teased. See Motion to Correct, ¶ 16. Finally, the last correction discussed in the brief concerned conclusions and applicable principles of law rather than fact, and our discussion of those matters is incorporated into the legal analysis below.

The controlling standard of law in this matter is the main subj ect of dispute between the parties. According to the respondents, the seminal case regarding altercations between co-workers remains Jacquemin v.Turner Seymour Mfg. Co., 92 Conn. 382 (1918), in which two iron-casting workers became embroiled in an fatal fight over a ladle, despite no pre-existing ammosity between the two. Ladles were intentionally kept in short supply by the employer, though a caster’s daily job duties could not be completed without one. In discussing whether this incident arose out of the decedent’s employment, our Supreme Court held, “If one employee assaults another employee solely to gratify his feeling of anger or hatred, the injury results from the voluntary act of the assailant and cannot be said to arise either directly out of the employment, or as an incident of it. But when the employee is assaulted while he is defending his employer, or his employer’s property, or his employer’s interests, or when the assault was incidental to some duty of his employment, the injury he suffers in consequence of the assault will, as a rule, arise out of the employment.” Id., 3 84-85. The Court then identified a third category of compensable cases, namely, injuries arising when “the character of the business or the conditions under which it is carried on make [such incidents] likely, and the result either was, or should have been, in the contemplation of the employer.” Id., 385.

In Jacquemin, the trial commissioner had found that the employer’s business was conducted in a way that would naturally create disputes between workers over ladles, which led to the claimant’s injury, and which justified a finding of compensability. The Court reversed that decision, noting that there was no evidence to indicate that similar trouble had occurred in the past, thereby putting the employer on notice of a potential problem. “It was the duty of the employees to do their work under the established conditions.” Id., 386. The Court held that the decedent’s co-worker had asserted a right over the decedent’s ladle that he did not have, and began the quarrel and fight; however, the decedent continued the fracas, even after an opportunity arose to desist. “The fight occurred in the course of the employment, but it did not originate in it or arise as a consequence or incident of it. These men turned temporarily from their work to engage in their own quarrel. Nothing their employer required of them would necessarily provoke them to a quarrel, nor could this have been reasonably anticipated.” Id., 386-87. The respondents maintain that Jacquemin and its progeny are still good law, which in their view would require dismissal of the instant claim on the ground that the claimant’s job did not cause the assault by Klose. See, e.g., Wihis v. Taylor Fenn Co., 137 Conn. 626 (1951) (fight over offensive language written on claimant’s locker not work-related).

The enduring viability of Jacquemin is called into question, however, by decisions such as Stulginski v. Waterbury Rolling Mills Co., 124 Conn. 355 (1938), and Nolan v. Brennan Concrete Corp., 11 Conn. Workers’ Comp.Rev.Op. 224, 1362 CRD-7-91-12 (Nov. 4, 1993). Stulginski is a case in which a claimant was working as a caster’s helper whose duty it was to sweep the floor of the plant. After he deposited a load of sweepings upon a pile of molten metal dross, smoke developed and blew toward a co-worker who mistakenly thought that the claimant was trying to annoy him on purpose. Though both had previously been on good terms, the co-worker threw a block of wood at the claimant, who retahated by tossing a handful of ashes at the co-worker. The co-worker then charged the claimant and pushed him backward, fracturing his arm.

After reiterating the facts and holding of Jacquemin, supra, the Supreme Court observed that the language of that case should be read narrowly to cover only purely personal disputes, and further stated that “[i]t is at least doubtful whether in view of the later decisions in our own and other courts we would today arrive at the same conclusion upon the facts stated in the opinion.” Stulginski, supra, 359-60. The Court went on to hold that, as long as the disagreement was a natural consequence of the employment, it was not necessary that the risk of its happening be foreseeable. See also, Fair v. People’s Savings Bank, 207 Conn. 535, 545-46 (1988). “The fight arose out of the method in which the employment was customarily carried on in the plant and which was approved by the employer. The question presented in this type of case, as in others involving the issue whether an injury arose out of the employment, is essentially one of fact, to be determined in view of all the relevant circumstances. . . .” Stulginski, 365.

One of the more recent cases that concerns a workplace altercation between employees is Nolan, supra, in which the claimant injured his hand in a fight that started when he used harsh, insulting language to request that a fellow employee help him with a task. There were indications that racial intolerance played a role in the dispute. In reviewing the trier’s dismissal of the claim and remanding for further findings, this board held that “[a] finding that the cause of the altercation was the claimant’s desire, though inappropriately expressed, to get the job done would have its origin in the work and support compensability. On the other hand, a finding that the cause of the altercation was the claimant’s personal feelings toward George Stanley unrelated to the employment or due to racial motivations would not have its origin in the work and require a denial of compensation.” Id. That principle has been applied in subsequent cases such as Beaubien v. Chesebrough Ponds,U.S.A., 3386 CRB-3-96-7 (Jan. 22, 1998) (assault by co-worker was not due to either horseplay or a pre-existing personal dispute, and injury was compensable), and Setterstrom v. C.R. Klewin, Inc., 3643 CRB-2-97-7
(Aug. 12, 1998) (proximate cause of non-compensable assault was found to be claimant’s taunting of assailant, who retahated by pushing him from a ladder).

The case before us appears to fall close to, but not beyond, the boundary that circumscribes those situations that arise out of one’s employment. After listening to the testimony, the trier found that there was no ammosity between the claimant and Theodore Klose prior to the incident of October 14, 1992. Then again, he also found that the assault was neither a direct result of the performance ofjob duties, nor incidental to some such duty. The basis of the trier’s finding of compensability was that the claimant’s aggressive remarks to Klose originated from their employment with Davis Geck, presumably making Klose’s retahatory physical response to those comments an incident that arose out of the employment as far as the claimant was concerned.

If one accepts the claimant’s testimony as true, as the trial commissioner was entitled to do; Phaiah, supra; one might reasonably conclude that the claimant was asked a question about the boilers, responded in kind with perhaps a degree of sarcasm, and managed to incur the wrath of his co-worker. May 22, 2001 Transcript, pp. 19-20. Assuming this to be the case, it would follow that Stulginski would be on point. The claimant did not go so far as to intentionally instigate a fight, thereby taking him outside of the scope of his employment. The words he spoke that led to his being pushed were work-related, just as the floor-sweeping activities of the claimant in Stulginski were a duty of his employment, though they led to a misunderstanding that resulted in a broken arm. Accordingly, the commissioner was justified in finding this case compensable, and we may not reverse his factual determination of compensability on review.

The trial commissioner’s decision is hereby affirmed.

Commissioners Donald H. Doyle, Jr. and Amado J. Vargas concur.

CERTIFICATIONTHIS IS TO CERTIFY THAT a copy of the foregoing was mailed this 20th
day of December 2002 to the following parties:

ROBERT GIJENDELSBERGER, ESQ. 7099 3400 0008 5539 1254


DAVID W. SCHOOLCRAFT, ESQ. 7099 3400 0008 5539 1247

___________________ Lorraine Lockery Administrative Hearings Lead Compensation Review Board Workers’ Compensation Commission