CASE NO. 587 CHD-4-87Workers’ Compensation Commission
JANUARY 26, 1989
The claimant was represented by Donald Cousins, Esq., Cousins and Johnson.
The respondents were represented by Ralph Russo, Esq., Montstream May.
This Petition for Review from the April 15, 1987 Finding and Award of the Commissioner for the Fourth District acting for the Third District was heard August 19, 1988 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Andrew Denuzze and A. Thomas White, Jr.
OPINION
JOHN ARCUDI, Chairman.
This matter arose in the Third District as the employee was a partner of the New Haven law firm, Lynch, Traub, Keefe and Snow, P.C., the employer respondent. Following preliminary proceedings in the Third District the case was transferred to the Fourth District at the request of the parties. Claimant sustained an injury to his back while riding horseback in Bermuda on October 10, 1982. He was on that island participating in the firm’s annual recreational business trip. In an April 15, 1987 Finding and Award the trial Commissioner ruled the injury arose out of and in the course of employment. Respondents’ appeal attacks this conclusion and argues that the horseback ride was essentially a recreational activity and not sufficiently employment related.
The Commissioner found claimant to be a partner and an employee of the respondent law firm He found further that the firm regularly took annual trips to distant places and that the custom was for partners and their spouses or companions to travel on these trips. The firm characterized these travels as business trips and funded all expenditures associated with such trips except for personal purchases or gifts. All of the monies thus expanded were considered partnership business expenses for income tax purposes.
Such trips afforded an opportunity for the partners to get to know one another better and to discuss business as well as engage in recreational activities together. In Bermuda in 1982 formal firm business meetings were held at the Southampton Princess Hotel on October 10, 11 and 12. The partner William Lynch presided at these meetings end minutes were kept. Agenda items discussed included matters of office construction, hiring, salaries, expenses and other aspects of the operation and management of the law firm. Like the other trips the 1982 one was funded by the firm. Thus, the October 10 horseback ride, an expense associated with that meeting, was financed by the employer respondent. In addition to the claimant, three other partners, Stephen Traub, Donald F. Snow, Jr. and Hugh Keels went on the ride. The only partner who did not was William Lynch. Keefe’s wife and Traub’s fiancee also rode.
All ride participants travelled by taxi from the hotel to the stables. Snow, the partner in charge of financial arrangements, paid the taxi fare and all other necessary disbursements for this Sunday morning breakfast ride with firm funds. Although claimant had previously ridden some fifteen years before, he was not an experienced horseback rider. In addition, his mount was not the gentlest of animals. Consequently, claimant had an extremely rough ride and ached all over at its conclusion. His right leg pained him, and his back was generally stiff. On return to Connecticut, his condition was diagnosed as a herniated lumbar disc. He underwent surgery for disc removal November 16, 1982. The attending neurosurgeon, Dr. James Sabshin concluded that the back injury was caused by the October 10 Bermuda horseback ride.
Although respondents filed a twenty-three paragraph Motion to Correct, they do not contest the essential facts found by the Commissioner and summarized above. Instead, their appeal attacks the Commissioner’s conclusion that the Sunday morning horseback ride was an incident of claimant’s employment. They contend no matter how else one characterizes the other aspects of the 1982 Bermuda trip, the Sunday breakfast ride itself was recreational, not a work event. The trial Commissioner’s Finding, #109-#112, are thus the principal items of contention.
In those four paragraphs, the Commissioner found the Bermuda trip like all such annual excursions by the firm was a business trip, the respondent employer received a benefit from the trip, the claimant was fulfilling the duties of his employment or doing something incident to such employment in going on the trip and the horseback ride part of it. As the parties’ briefs both agree, McNamara v. Hamden, 176 Conn. 547
(1979) is the leading Connecticut case treating recreational injuries. That opinion by Justice Speziale reviewed seven decades of Connecticut law relating to such injuries. He cited the test enunciated in Stakonis v. United Advertising Corporation, 110 Conn. 384, 389 (1930)[1] :
“In order to come within the course of the employment an injury (must) occur (a) within the period of 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.” McNamara v. Hamden, supra, 550-51.
McNamara discussed the going and coming cases where a benefit to the employer needed to be found before benefits could be awarded, McKiernan v. New Haven, 151 Conn. 496 (1964); Williams v. State, 152 Conn. 692 (1965); Smith v. Seamless Rubber Co., 111 Conn. 365 (1930). The opinion distinguished those cases from those where injuries occurred on employment premises within the period of employment. It then held that since the McNamara injury occurred on such premises within the employment period, it was not necessary to show employer benefit.
Claimant in the instant matter argues that the entire island of Bermuda was employment premises and that therefore no employer benefit need be shown. Respondents object to such a characterization and contend that even if the Princess Southampton Hotel where firm business meetings were held October 10, 11 and 12 be considered employment premises, the beach locale of the horseback ride could not be so considered. Although claimant’s argument seems a tenable one, we need not decide that issue as the Commissioner here found an employer benefit in the ride. Respondents concede that the Bermuda trip was a business trip and therefore necessarily involved an employer benefit. But the horseback ride, they say, was personal and recreational, of no benefit to the employer and therefore not incidental to the employment.
We do not agree. All the firm’s annual trips, including the 1982 Bermuda event, had recreational elements interwoven in their business objectives. As a matter of fact, the recreational elements were themselves business objectives. Consequently, the partner’s back injury met all three prongs of the Stakonis test. He was (a) within the period of employment; (b) at a place where he could reasonably be expected to be; and (c) reasonably fulfilling the duties of employment or doing something incidental to it. The commissioner below so found and even if we were to conclude differently, our admired power of review does not permit us to disturb those conclusions.
“To the extent that we have articulated a standard for reviewing that an injury arose out of the employment, we have treated this issue as factual in nature and, therefore, have accorded the commissioner’s conclusion the same deference as that given to similar conclusions of a trial Judge or jury on the issue of proximate cause. . . . This rule leads to the conclusion that unless the case lies clearly on the one side or the other the question whether an employee has so departed from his employment that his injury did not arise out of it is one fact,” Fair v. People’s Savings Bank, 207 Conn. 535
(1988) quoting Herbst v. Hat Corporation of America, 130 Conn. 1, 7-8 (1943) (citations omitted).
Interestingly Justice Longo’s McNamara dissent relies on an analytical approach which though differing from the majority is nonetheless also applicable to the instant matter. His dissenting opinion maintained that the fundamental issue in these cases was the sufficiency of the “connection between the employment and the recreational activity” before the activity could “be regarded as in incident of the employment”. He then identified the extent of employer involvement in the activity as an important factor in measuring the sufficiency of the connection. Thus, “The spectrum of employer involvement in employees’ recreational and social activities can range from compulsion, to sponsorship and encouragement, to mere permission or toleration”. McNamara v. Hamden, supra, 558-559. Here, “Participation in the Sunday morning breakfast ride was not mandatory or required by the firm”. (Corrected Finding, #51 A.) Therefore, the employer involvement did not include compulsion. But neither did the employer simply permit or tolerate the ride. It sponsored and encouraged it in a most meaningful fashion, it paid for it. The Bermuda situation thus differed from the McNamara one where the employees themselves purchased the ping pong table. This fact alone constituted an adequate basis for finding extensive employer involvement and sufficiency of employment connection. So even if we utilize the dissentor’s McNamara rationale, we would still conclude the instant matter to be compensable.
We affirm the Fourth District Finding and Award. Commissioners Andrew Denuzze and A. Thomas White, Jr. concur.
(1916).