CASE NO. 459 CRD-1-86Workers’ Compensation Commission
MARCH 23, 1988
The claimant was represented by Dennis G. Hersh, Esq.
The respondents were represented by John Clarkson, Esq.
This Petition for Review from the February 13, 1986 Finding and Award of the Commissioner for the First District was heard February 27, 1987 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Frank Verrilli and A. Thomas White, Jr.
FINDING AND AWARD
The First District Finding and Award of February 13, 1986 is hereby affirmed and adopted as the Finding and Award of this Division.
OPINION
JOHN ARCUDI, Chairman.
Claimant, a City of Hartford employee, sustained a severe injury to the hands due to frostbite. February 1, 1980 was a very cold, dry day. On that day, Claimant worked at the Old North Main Cemetery outside most of the day; by the afternoon he began to experience the effects of frostbite, particularly in his right hand.
At about 5:30 p.m. on February 1, 1980 Claimant telephoned the cemetery maintenance office requesting an ambulance. However, no ambulance ever arrived. During that night, Claimant slept outside the cemetery accompanied by his dog.
He was found the next morning, February 2, 1980 by a passerby. Claimant was taken by ambulance to St. Francis Hospital where it was determined that he was suffering from hypothermia, frostbite and alcohol abuse. He remained in the hospital from February 2, 1980 until April 13, 1980. His injury caused three fingers on his right hand and four fingers on his left hand to be amputated.
The First District February 13, 1986 Finding and Award concluded the right hand injury to be compensable but not the injury to the left hand. Respondents argue here as they did below that the injuries to Claimant’s right hand were the result of alcohol abuse. Specifically, Respondents object to the trial Commissioner’s finding in paragraph #8 which states,
“By the time Claimant sought medical attention in the late afternoon and early evening of February 1, 1980, his right hand was probably injured to the extent that the frostbite, which ultimately progressed to the point that surgical amputation of the remaining three (3) fingers of Claimant’s right hand was necessary, i.e. the injuries to Claimant’s right hand were severe enough to be irretrievable.”
Additionally, they contest the conclusion in paragraph #30 that the claimant’s injury to his right hand was work-related.
Their position is that there was not sufficient evidence that the injury arose out of and in the course of the employment. In the alternative, if there exists such evidence, then the “injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication”[1] . As to the first argument, Claimant was at the work premises at the end of his shift when he “experienced cold sensations in both hands, especially his right hand”. After work his symptoms were such that he phoned for an ambulance and waited at the work premises for the ambulance to arrive. The Commissioner’s conclusion about Claimant’s experiencing symptoms in his hands due to the cold while working certainly are based on sufficient testimony from the claimant and other witnesses in the record. The facts so found must stand unless they are “so unreasonable as to justify judicial interference”, Gordon v. United Aircraft Corp., 150 Conn. 328, 331 (1963). We do not find them unreasonable.
On the intoxication affirmative defense the burden of proof shifts to the Respondents, Liptak v. State, 176 Conn. 320
(1978). None of the doctors who testified stated for an absolute certainty or even more probably than not that medical intervention in the early evening of February 1, 1980 would have saved the right hand digits from amputation. Even if they had, the Commissioner was not bound to agree with their conclusions. And in order for Respondents’ defense to prevail they would have had to show by a preponderance of the evidence that the occurring frostbite condition of the right hand was not irretrievably set by 5:30 p.m. and that further the reason that the claimant remained on the premises waiting for an ambulance and falling asleep during the night outside in the cold was due to the intoxication. The risk of non-persuasion was theirs. We cannot conclude the trier was unreasonable in failing to be persuaded.
We, therefore, affirm the award and dismiss the appeal.
Commissioners Frank Verrilli and A. Thomas White, Jr. concur.