ANDERTON v. WASTE AWAY, L.L.C., NO. 4435 CRB-4-01-9 (8-12-2002)


CASE NO. 4435 CRB-4-01-9 CLAIM NO. 400038698Compensation Review Board WORKERS’ COMPENSATION COMMISSION
AUGUST 12, 2002

The claimant was represented by Kevin Blake, Esq., Shepro Blake, 2051 Main Street, Stratford, CT 06615.

The respondent Waste Away, L.L.C. was represented by Lawrence Pellett, Esq., Feeley, Nichols, Chase, McDermott Pellett, P.C., 37 Leavenworth Street, P.O. Box 2300, Waterbury, CT 06722-2300.

The Second Injury Fund did not participate in the proceedings below, and was not represented at oral argument. Notice sent to Mee Carolyn Wong, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

These Petitions for Review from the September 18, 2001 Finding and Award of the Commissioner acting for the Fourth District were heard March 22, 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 claimant and the respondent Waste Away, L.L.C., have both petitioned for review from the September 18, 2001 Finding and Award of the Commissioner acting for the Fourth District. The respondent argues that the trier erred by finding that the claimant’s injury arose out of and in the course of his employment, while the claimant’s appeal merely seeks a further hearing on the subject of reimbursement for medical bills (the right to which would automatically flow from a finding of compensability). We find that there is insufficient evidence to support the trial commissioner’s finding of compensability, and reverse his decision.

The following facts were found. The claimant began working for the respondent Waste Away in August 1999, cleaning up after baseball games and concerts that are held at the Bluefish Stadium in Bridgeport. He generally reported for work between 7:00 and 8:00 a.m. on the day after an event, and was scheduled to work on September 3, 1999. Sometime prior to that date, Richard Farrell and Kevin Lynch, the two owners of Waste Away, asked the claimant if he would play basketball on September 3. The game would pit the claimant and Charles Dobson, a co-worker and his future brother-in-law, against the two owners, and would be played on a court located in an apartment complex across the street from the stadium. The claimant was told that he and Dobson would be treated to lunch if they were victorious. Though the claimant and Dobson had lately been at odds due to an unpaid debt owed by the latter to the former, they agreed to play. The claimant testified that he felt as if he had to participate, and that if he refused, his employers and Dobson would look upon him unfavorably as an employee.

The game commenced as scheduled. A short time later, the claimant sustained an injury to his left Achilles tendon that totally disabled him from work from September 3, 1999 to November 18, 1999. According to Dr. Boone, this injury also left him with a 7% permanent partial disability of the left ankle. The trier found that the injury arose out of and in the course of the trier’s employment with Waste Away, and ordered the respondent to pay the claimant total disability benefits and an 8.75-week permanency award. Both parties have filed petitions for review from the trier’s decision.[1]

The governing law that concerns us in this matter is § 31-275
(16)(B) C.G.S., which states, “`Personal injury’ or `injury’ shall not be construed to include: (i) An injury to an employee which results from his voluntary participation in any activity the major purpose of which is social or recreational, including, but not limited to, athletic events, parties and picnics, whether or not the employer pays some or all of the cost of such activity.” We must determine whether there is sufficient evidence in the record to support a finding that the claimant’s participation in the basketball game of September 3, 1999 was not voluntary, and/or that the major purpose of the game was not recreational or social. The only direct evidence concerning the circumstances of the claimant’s injury was his testimony and that of Richard Farrell at the January 31, 2001 formal hearing. As one might expect, there are major discrepancies between their respective recollections of the circumstances that preceded the claimant’s injury.

While the burden rested on the claimant to prove the compensability of his injury, the trial commissioner had sole authority to determine the relative credibility of the testimony offered by the two witnesses.Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Phaiah v. Danielson Curtain, 4409 CRB-2-01-6 (June 7, 2002); Sendra v. Plainville Board of Education, 3961 CRB-6-99-1
(Jan. 20, 2000). A commissioner is not required to regard any particular statement as probative, even if it seems to be uncontradicted, nor is he required to disregard the testimony of a particular witness on account of inconsistencies in his remarks or uncorroborated assertions that tend to further his own interests. Goldberg v. Ames DepartmentStores, 4160 CRB-1-99-2 (Dec. 19, 2000); Gagliardi v. RaimondoMaintenance, L.L.C., 4012 CRB-1-99-4 (July 20, 2000). It is the trier who has the opportunity to consider the demeanor of the witnesses, and the consistency of their accounts with respect to the rest of the evidence.Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). Where the veracity of a witness’ factual representations is at issue, the trier’s credibility assessment is virtually inviolable on appeal, as this board may not declare a witness’ testimony unreliable as a matter of law. Goldberg, supra; VanStraten v. Hartford Courant, 3999 CRB-8-99-3
(March 23, 2000). Thus, on review we may disturb the trier’s findings only if there is an absence of evidence in the record to support them.Warren, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7
(July 17, 1998).

It is clear from the trier’s findings that more credence was given to the testimony of the claimant than that of Farrell, which judgment the trier was certainly entitled to make. However, the respondent asserts in its brief that there was no evidence that the claimant’s job would actually have been in jeopardy if he had declined the invitation to play basketball. Instead, the respondent contends that the trier impermissibly relied on the claimant’s subjective impression that his status as an employee would be viewed unfavorably by his employers and his future brother-in-law if he failed to participate in the basketball game. The claimant, meanwhile, likens this case to that of O’Day v. New BritainGeneral Hospital, 3580 CRB-6-97-4 (June 5, 1998), in which it was found that a psychiatric nurse-clinician’s job evaluation was based in part on a “teamwork” factor that included her participation in off-premises birthday luncheons for co-workers, thereby making compensable her injury while driving home from one such luncheon.

In O’Day, the testimony of the claimant and a co-worker established that their supervisor stressed the connection between their attendance at birthday luncheons and teamwork evaluations that were a “core value at the hospital.” Id. These luncheons were planned during weekly work meetings, and the employer arranged for the attendees’ positions to be covered while they were out. Discussions at these luncheons generally revolved around work. The trial commissioner found that the claimant did not enjoy participating in these luncheons, that their major purpose was not social or recreational, and that her attendance at the particular luncheon in question was not voluntary. This board did not disturb the trier’s findings on review, as they were supported by the record. Thus, the compensability of the claimant’s injury was affirmed.

Here, the trier concluded that playing basketball was part of the claimant’s employment on the date of his injury, as the claimant “felt he had to agree to play with his employers and that if he refused, Mr. Dobson, his future brother-in-law, and his employers would not look favorably upon him as an employee.” Findings, ¶ 9. In that respect, this case resembles the fact pattern in O’Day. However, the instant case is also lacking certain elements that were present in O’Day: a finding that the main purpose of the basketball game was not social or recreational, and some sort of independent corroboration that the employer would indeed factor the claimant’s presence on the basketball court into his job evaluation.

If we interpret the claimant’s testimony in the most favorable light possible by assuming that the trier accepted everything he said as true, we learn that he and Dobson were hired by Farrell in August, 1999 to power-wash Bluefish Stadium after baseball games and other events. Dobson soon became the claimant’s supervisor. On two or three occasions prior to the claimant’s injury, Farrell asked the claimant if he and Dobson would like to play a basketball game against Farrell and Kevin Lynch. If they won, the employers would buy them lunch. The claimant was initially hesitant, but decided that he was obliged to play because he felt that he would be looked on unfavorably if he didn’t participate. The claimant was concerned that, due to friction between himself and Dobson over unpaid bills, Dobson might say or do something that would jeopardize the claimant’s continued employment. He felt that he was being “underhanded” by Dobson, and it was his personal opinion that he might fall out of favor with Farrell if he opted not to play basketball. See Transcript, p. 37. He did not mention to his employers that he would rather not play basketball against them.

On September 3, 1999, the claimant and Dobson knew that they would be playing basketball, and arrived at the stadium early in the morning. After setting up the cleaning equipment, they learned that their employers were ready to begin the game, and were asked to find a basketball and join their employers across the street at the basketball court. The game began, and its pace was more aggressive than the claimant had anticipated, as if his employers were intent on demonstrating their skill. About fifteen minutes into the game, the claimant injured his Achilles tendon while taking a jump shot. The claimant did not return to work that day, but believed that he was paid for it, as he signed in but never signed out. Also, Richard Farrell acknowledged in his testimony that the notion of playing basketball with employees was inspired in part by an intent to boost company morale and foster employee loyalty.

Construing all of these statements as accepted facts, and discounting the rest of Farrell’s testimony, we do not believe that the evidence suffices to demonstrate that the basketball game in question was not primarily social or recreational, nor does it show that the claimant was required to play as part of his employment. The claimant’s testimony merely establishes that his relations with Dobson, his recently-promoted supervisor, were strained due to issues unrelated to work, and that he was subjectively concerned that his employer might draw negative implications from his failure to participate in the basketball game of September 3, 1999. What is missing from this situation is any concrete act or statement by the employer that would have led a reasonable person to think that there would be negative employment-related consequences if the claimant had declined Farrell’s proposal for a two-on-two basketball game.

In order for an employer to be held liable for an injury that arises out of an activity that is normally understood to be recreational or social, the employer must do more than propose the recreational event with an awareness that it might benefit employee morale. The employer must somehow acknowledge its own subjective intent or understanding that participation in said event is connected with one’s employment duties or employment status in some way. This does not necessarily require a specific statement by the employer, but the employer must have created in some manner an atmosphere whereby it was known by employees that the employer would prefer their participation in that recreational or social event, and that they would be viewed more favorably as a result. It is not enough that a claimant’s subjective perception of a situation leads him to conclude that it is necessary for him to participate in such an activity. Cf. Smith v. Connecticut Light Power Co., 4135 CRB-5-99-10
(March 29, 2001) (no causal connection in mental stress claim where stimuli causing the alleged stress were due to claimant’s misunderstanding of situation, and were not occurrences that an ordinary person would identify as probable stressors). There must be a direct tie-in between one’s employment duties or status and one’s attendance at the activity. Without this element of additional proof, a claimant cannot be said to have met his burden of establishing an exception to § 31-275
(16)(B)(i). As no such proof was offered here, we hold that the statutory exclusion to the definition of “personal injury” for voluntary participation in social and recreational events must apply to the instant case.

Accordingly, we reverse the trial commissioner’s finding of compensability. With regard to the claimant’s appeal, any issue concerning unpaid medical bills is rendered moot by our ruling on the merits.

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

CERTIFICATION THIS IS TO CERTIFY THAT a copy of the foregoing was mailed this 12th
of August 2002 to the following parties:


KEVIN BLAKE, ESQ. 7099 3400 0008 5539 3951


LAWRENCE PELLETT, ESQ. 7099 3400 0008 5539 3944

MEE CAROLYN WONG, ESQ. 7099 3400 0008 5539 3937

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

[1] We note that the respondent Waste Away’s attorney filed a Motion to Withdraw his appearance as counsel on behalf of Waste Away, L.L.C., stating that he had been unable to communicate with his client since prior to filing the instant appeal. That motion was denied by this board at the March 22, 2002 oral argument, given the difficulties that would have been presented by his withdrawal at this stage of the proceedings.