CASE NO. 639-CRD-2-87Workers’ Compensation Commission
JULY 25, 1989
The claimant was represented by James P. Berryman, Esq., Suisman, Shapiro, Wool, Brennan Gray P.C.
The respondents were represented by William C. Turney, Esq., Gillooly, McGrail, Carroll Sheedy.
This Petition for Review from the September 3, 1987 Finding and Award of the Commissioner for the Second District was heard January 27, 1989 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Darius Spain and Andrew Denuzze.
OPINION
JOHN ARCUDI, CHAIRMAN.
Respondents seek review of the Second District September 3, 1987 Finding and Award in which claimant was awarded benefits. They attack the trial Commissioner’s conclusion that claimant’s injury arose in and out of the course of employment and argue that the trial Commissioner misapplied the law as stated in McNamara v. Hamden, 176 Conn. 547 (1979).
Claimant, an employee of Harris Graphics in the Town of Stonington was also a member of The Westerly Volunteer Fire Department. That membership was not a condition of his employment. On April 30, 1982 the claimant left his job during working hours to fight a fire on the Mohegan Trail Road in Westerly, Rhode Island. While disembarking from a fire truck at the scene of the fire, the claimant suffered a twisting injury to his left knee.
As stipulated to by the parties the trial Commissioner found claimant had left his regular job on several occasions prior to April 30, 1982 in order to fight fires and during the period of his absence was paid his daily wages from the respondent-employer. As also stipulated the labor contract between the Respondent-employer and Local Lodge #627, the employee’s bargaining representative, contained the following provision “No deduction in pay shall be made due to time lost on first day of emergency fire duty, emergency police duty or emergency ambulance corp duty when services performed within the Pawcatuck Fire District or the Westerly Fire District. . .” Administrative notice was taken that the respondent’s plant was located in the Pawcatuck Fire District.
In McNamara, our Supreme Court reiterated that in order for an injury to come within the course of 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. Stakonis v. United Advertising Corporation, 110 Conn. 384, 389 (1929).” The trial Commissioner considered the aforementioned elements and applied them in the instant matter. As noted, under McNamara, supra the claimant must demonstrate that the off the premises activity in which he was engaged at the time of injury provided a benefit to the employer.
In his accompanying Memorandum of Decision, the trial Commissioner stated:
In this instance the clause of the collective bargaining agreement provided full wages would be paid to employees answering calls to both Pawcatuck and Westerly Volunteer Fire Departments. While there might be some question about how much direct benefit would be derived from services performed by The Westerly Fire Department, it does not take much imagination to see the direct benefit accruing to the employer for services rendered by Pawcatuck. The terms of the collective bargaining agreement take on additional significance when it is understood that respondent’s plant lies within that district. Certainly the protection of their property and the providing of ambulance service to persons on their premises is a direct benefit.
It is impossible to determine from the wording of the clause that there is any differentiation in how employees responding to either fire department are to be viewed. It would be reasonable to interpret the terms of the clause as applying to each group equally. Therefore either group could reasonably be presumed to be providing a benefit to the employer when such fire or ambulance services were rendered.
Whether the trial Commissioner erred in his conclusions depends on a determination of whether the conclusions drawn “results from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988) (citations omitted). As the decision was based on stipulated facts and the accompanying memorandum outlined the trial Commissioner’s rationale we cannot say the trial Commissioner violated the above prescription in concluding as he did.
Further we refer to our recent review of McNamara, supra in Bruce v. Lynch, Traub, Keefe and Snow, P.C., CASE NO. 587 CRD-4-87 (decided January 26, 1989). In Bruce, the claimant sought compensation benefits for a herniated disc which was causally related to an injury sustained while horseback riding on an employer sponsored business trip. We affirmed the trial Commissioner’s ruling that the horseback ride provided a benefit to the employer. We noted that under Fair, supra our limited powers of review did not allow us to disturb his conclusions. However, we also referred to Justice Longo’s dissent in McNamara, supra and noted the the employer in Bruce did not “simply permit or tolerate the (horseback) ride. It sponsored and encouraged it in a most meaningful fashion, it paid for it.” Bruce supra, at 8. We think that the Bruce analysis applies here. The respondents bargained for payment of wages during volunteer fire fighting activities in the labor agreement, and they paid the claimant his wage while engaged in such activities.
This case is also similar to Ohmen v. Adams Brothers, 109 Conn. 378 (1929) where the Supreme Court held the personal injury sustained by claimant in a motor vehicle accident was compensable. In Ohmen, claimant was a carpenter whose daily wages began at 8:00 a.m. whether he was on a specific work site or not. The claimant had received permission from his employer to take time to vote in all municipal elections and meetings. On the day of claimant’s accident the election poll opened at 9:00 a.m. and the claimant cast his ballot during assigned working hours. He then proceeded to drive from the election poll site to his work site via the shortest route. In the course of that drive the collision occurred.
The Supreme Court held that the claimant’s collision arose in and out of the course of employment as “the injury was the result of a risk incident to plaintiff’s (claimant’s) employment and was literally within the terms of his contract of employment.” Ohmen, supra at 386. We think Ohmen is analogous and its ratio decidendi applicable.
We, therefore, affirm the Second District and dismiss the appeal.
Commissioner Darius Spain and Andrew Denuzze concur.