GEORGE BALLESTER III, GREG BALLESTER, JAIME BALLESTER AND TESSE BALLESTER, Dependent minor children of GEORGE BALLESTER (Deceased), CLAIMANTS-APPELLEES vs. K D AUTO BODY, INC., EMPLOYER and LUMBERMEN’S MUTUAL CASUALTY, INSURER, RESPONDENTS-APPELLANTS

CASE NO. 578 CRD-3-86Workers’ Compensation Commission
APRIL 6, 1988

The claimant was represented by Robert K. Lesser, Esq.

The respondents were represented by Edward S. Downes Jr., Esq.

This Petition for Review from the October 27, 1986 Finding and Award of the Commissioner for the Third District was heard February 27, 1987 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller and A. Thomas White, Jr.

FINDING AND AWARD

1-13. Paragraphs 1-13 of the Commissioner’s Finding and Award are affirmed and adopted as paragraphs 1-13 of this Division’s Finding and Award.

14. After decedent had left home October 15, 1984 his wife noticed his work keys had been left on the television set, and she expected him to return soon to retrieve the forgotten keys.

15-20. Paragraphs 15-20 of the Commissioner’s Finding and Award are affirmed and adopted as paragraphs 15-20 of this Division’s Finding and Award.

21. The presumptive minor dependents claim dependency benefits commencing October 15, 1984, and continuing as provided in the Workers’ Compensation Act with appropriate cost of living. The $3,000.00 statutory burial allowance is also claimed.

22. Claimant’s injuries and death October 15, 1984 arose out of and in the course of his employment.

IT IS THEREFORE ORDERED, ADJUDGED AND AWARDED that

A. Respondent pay all chapter 568 benefits due the dependent claimants to their mother, Ellen Sue Ballester, with whom they are living.

B. Respondents pay the dependents the $3,000.00 burial allowance.

C. Respondents pay any reasonable medical, hospital and ambulance bills incurred as a result of decedent’s injury and death.

OPINION

JOHN ARCUDI, Chairman.

No factual dispute is here presented. The parties all agree that George Ballester, claimants’ decedent, was the repair shop foreman for the respondent, K D Auto Body. Each work morning as foreman he was required to shut off the night burglar alarm and open the shop for business between 7:30 and 7:45 a.m. Decedent lived in Naugatuck with his former wife and dependent minor children. The repair shop was located in Milford and the foreman normally drove south each morning on Route 63 to the Wilbur Cross Park-way, then west to the I-95 connector en route to his place of employment.

On October 15 Ballester, while driving north on Route 63 in Bethany at about 7:25 a.m. was involved in a motor vehicle accident causing his death. He had left his home that morning to go to work but discovered he had forgotten his keys and had turned back to get them in order to carry out his initial workday duties. This claim is brought by the four dependent minor children under Sec. 31-306, C.G.S. Although Ellen Sue Ballester and the decedent were living together as a family at the time of his death, their May 21, 1973 marriage had been formally dissolved in 1976.

In her October 27, 1986 Finding and Award, the Third District Commissioner ruled Ballester’s death arose out of and in the course of employment and awarded survivors’ benefits. The Respondents Employer and Insurer have appealed arguing that injuries sustained by employees traveling to and from work are not compensable, True v. Longchamps, Inc., 171 Conn. 476
(1976). Claimants rely on Dombach v. Olkon Corporation, 163 Conn. 216 (1972) which states the exception to the general rule making compensable those instances “where the employee is injured while using the highway in doing something incidental to his regular employment, for the joint benefit of himself and his employer, with the knowledge and approval of the employer”, id., 222.

Both parties recognize the matter falls into the category of “dual purpose trips”, 1 Larson, Workmen’s Compensation Law, Sec. 18, p. 4-251 et. seq. That treatise further subdivides these types of cases into those where the employee is on a special errand, where there are concurrent work and non-work purposes, where the work purpose is the dominant purpose and of course the more whimsically labeled ones of the absent minded employee, id., Sec. 18.24, p. 4-296 — 298. Larson cites a New Jersey matter on all four, Gelbart v. New Jersey Federated Egg Producers Association, 17 N.J. Misc. 185, 7 A.2d 636 (1939) where the employee had to return home as he had forgotten his keys. A similar result was reached in Gray v. Broadway, 146 So.2d 282 (La.App. 1962), a truck driver returning home to get his driver’s license, and St. Alexandre v. Texas Co., 28 So.2d 385 (La.App. 1946), an employee who went home for his work boots.

The rationale underlying compensability in those cases was “that, given the emergency situation at the moment the special trip was undertaken, a business purpose was served by returning for the keys, the license, and the work boots”, id., p. 4-298. However, an even more respected and venerable precedent formed the basis for Larson’s conclusion and our own Dombach opinion, Judge Benjamin Cardozo in Marks’ Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181 (1920):

“We do not say that service to the employer must be the sole cause of the journey, but at least it must be a concurrent cause. To establish liability, the inference must be permissible that the trip would have been made though the private errand was canceled . . . The test in brief is this: if the work of the employee creates the necessity for travel he is in the course of employment, though he is serving at the same time some purpose of his own. . . .If, however, the work has no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk.”

Id., 93.

To oppose the persuasive reasoning of these eminent authorities, appellants contend that the decedent’s forgetfulness was his own doing. Such forgetfulness, they claim, should not convert an otherwise non-compensable trip into one arising out of and in the course of employment. But isn’t the forgetfulness precisely the point? Even if we assume the trips back and forth to work each day were not compensable, the particular circumstances of the employee’s forgetfulness on this day caused the “emergency situation” to which he responded by turning back to obtain the forgotten keys. The journey then became an employment related one. Our system, after all, is not a fault based one in which the decedent’s omission in forgetting his keys creates a hazy aura of contributory negligence depriving the dependents of benefits.

As we view the facts in the light of the law cited, we cannot agree with the employer’s position. We have made some corrections in the Finding, but they do not affect the outcome. One of the corrections to be noted is in the captions which the parties and the Third District have employed for the matter. The claim is not that of the deceased or the deceased’s estate. It is the claim of the surviving dependents under Sec. 31-306, C.G.S.

The appeal is dismissed and the Third District Finding and Award is affirmed.

Commissioners Robin Waller and A. Thomas White, Jr., concur.