CASE NO. 280 CRD-5-83Workers’ Compensation Commission
OCTOBER 19, 1984
The Claimant-Appellee was represented by William F. Tynan, Esq.
The Respondents-Appellants were represented by Richard T. Stabnick, Esq.
This Petition for Review from the November 18, 1983 Finding and Award of the Commissioner for the Fifth District was argued March 30, 1984 before a Compensation Review Division Panel consisting of the the Commission Chairman, John Arcudi and Commissioner Frank Verrilli and Commissioner at Large, Darius J. Spain.
FINDING AND AWARD
1-7. Paragraphs 1, 3, 4, 5, 6 and 7 of the Fifth District Commissioner’s Finding and Award are affirmed and adopted as paragraphs 1 through 6 of this Division’s Finding and Award.
7. Claimant was paid on the basis of an 8 1/2 hour day from 7:30 a.m. to 4:30 p.m. with a half hour off for lunch.
8. Paragraph 9 of the Finding below is affirmed and adopted as Paragraph 8 of this Division’s Finding and Award.
Wherefore it is ORDERED, AWARDED, ADJUDGED AND DECREED that:
A. Respondents pay all indemnity and medical benefits due under Chapter 568, C.G.S.
OPINION
JOHN ARCUDI, Chairman.
Claimant Fusco was employed as a laborer-driver by the Respondent-Employer, John J. Brennan Construction Company, Inc. at a SNETCO site in Hamden from the end of September to the end of November, 1982. He lived in Naugatuck as did his foreman, one George F. Lee, Jr. On November 29, 1982 as was the custom during most of the two months of the SNETCO job, claimant drove his own car to the home of the foreman at 122 Walnut Street, Naugatuck in order to be driven by Lee in a company owned vehicle to the job site.
But the company truck did not start, so claimant and his foreman resorted to various measures to “jump start” it. They succeeded in moving the vehicle from the grass area where it had been parked overnight to the road in order to utilize the down slope at that point to help get the vehicle started. In the process the claimant hurt his back.
The issue in this appeal is whether claimant’s back injury occurring from this activity arose out of and during the course of the employment. Claimant as a laborer-driver was paid for an eight and one half hour work day, from 7:30 a.m. to 4:30 p.m. Lee as a foreman was paid for a nine hour work day from 7:00 a.m. to 4:30 p.m. Each was credited with an unpaid half-hour lunch period. Those employees classified simply as laborers were paid on the basis of an eight hour work day from 8:00 .m. [a.m.] to 4:30 p.m.
On the morning of November 29, 1982, claimant arrived at Lee’s residence at about 7:15 a.m. It was part of the foreman’s work duty to drive the company vehicle to the job site each morning. It was simply a matter of convenience that the foreman drove Fusco to the job site. But certainly, unless the company owned vehicle could be started, the foreman could not perform that part of his morning job duties. Any effort to help the foreman perform such a job duty must be classified as at least incidental to the employment and therefore arising out of and in the course of it. This fact by itself meets the fourth exception to the coming and going rule cited by the Respondents-Appellants, Whitney v. Hazard Lead Works, 105 Conn. 512, 518 (1927).
But the Commissioner’s Finding went beyond the incidental to the employment exception. He found that this laborer-driver’s work day started at 7:30 a.m. He was being paid from that time on. He further found that the injury occurred after the start of this employee’s paid time. There was testimony to that effect although under cross-examination Fusco agreed that it was possible the injury could have occurred before 7:30 a.m.
We therefore see no cause to overrule the trial Commissioner. We may not disturb a Commissioner’s factual conclusions when there is evidence to support them, Adzima v. UAC/NORDEN Division, 177 Conn. 107 (1979).
The decision of the Commissioner is affirmed and the appeal is dismissed.
Commissioners Spain and Verrilli concur in this opinion.