McMorris v. City of New Haven Police Dep't

156 Conn.App. 822

115 A.3d 491

Steve McMORRIS

v.CITY OF NEW HAVEN POLICE DEPARTMENT et al.

No. 36328.

Appellate Court of Connecticut.

Argued Jan. 22, 2015.

Decided April 28, 2015.

Anne Kelly Zovas, Glastonbury, for the appellants (defendants).

George H. Romania, Hamden, for the appellee (plaintiff).

LAVINE, MULLINS and SCHALLER, Js.

Opinion

LAVINE, J.

The defendants, the city of New Haven and its workers' compensation insurer, Connecticut Inter–Local Risk Management Association, appeal from the decision of the Workers' Compensation Review Board (board) affirming the finding and award of the Workers' Compensation Commissioner (commissioner), who concluded that the injuries sustained by the plaintiff, Steve McMorris, were compensable. On appeal, the defendants claim that the board improperly affirmed the commissioner's finding and award that the plaintiff's injuries arose out of and in the course of his employment because at the time he sustained his injuries, the plaintiff was taking his children to day care prior to reporting for his duty shift. We affirm the decision of the board.

The commissioner made the following findings of fact. On June 25, 2011, the plaintiff, a patrol officer in the New Haven Police Department, lived on Katherine Drive in Hamden. There were a number of routes the plaintiff could take from his home to the police station, but he “normal[ly]” took the following route because it had fewer traffic signals and stop signs. From Katherine Drive, he took Lane Street and followed Pine Rock all the way to Fitch Street; he followed Fitch Street to Whalley Avenue where he turned left at West Park; he followed West Park to Edgewood Avenue and Edgewood Avenue to Ella Grasso Boulevard to Legion Avenue.

At the time in question, the plaintiff lived with Anais Rivera, her daughter, and his two children. Both the plaintiff and Rivera worked the third shift from 11 p.m. until 7 a.m. Due to their work schedules, the plaintiff and Rivera took their children to a day care center on Chapel Street in New Haven for the primary purpose of sleeping. Rivera and the plaintiff shared the responsibility of taking their children to day care, and the plaintiff drove his children to day care two or three times a week. On June 25, 2011, Rivera was unable to take the children to the day care, so the plaintiff assumed that responsibility. When the plaintiff drove his children to day care, he followed the same route he took to work but slightly altered the route at the end of Fitch Street to reach the day care center. He reestablished his normal route at the intersection of Chapel Street and Ella Grasso Boulevard before proceeding to the police station.

The commissioner found that the plaintiff was assigned to the night duty shift of June 25 to June 26, 2011. The plaintiff left his home for the police station in his private motor vehicle dressed in his fully equipped service uniform, including his duty belt and service firearm. His children were in his vehicle because he had to take them to day care. The plaintiff was unaware of any policy that prohibits police officers from having passengers in their personal vehicle as they drive to work. The commissioner also found that had the plaintiff come upon the scene of a collision while he was driving his children to day care, he could have provided police assistance.

On June 25, 2011, after leaving his home, the plaintiff followed his usual route to work. At the intersection of Wintergreen Avenue and Fitch Street, he was involved in a motor vehicle collision. The commissioner found that the collision occurred at a point prior to where the plaintiff would have altered his route to take his children to day care. As a result of the collision, the plaintiff's left knee and left foot were injured. The plaintiff underwent surgery to repair his injuries on September 12, 2011, and he returned to work on November 16, 2011.

The commissioner found that the plaintiff had to take his children to day care on the date in question because he was scheduled for duty that night and that he was in the process of going to the police station when the collision occurred. The plaintiff intended to take the children to day care before continuing to the police station; he did not intend to take the children to the police station.

The commissioner further found that the plaintiff is a “portal-to-portal” employee pursuant to General Statutes § 31–275(1)(A)(i),¹ which provides that such an employee is covered by workers' compensation for injuries the employee may sustain from the time the employee leaves his or her “place of abode to duty” and from the end of the employee's duty shift back to the employee's abode. The plaintiff contended that he is entitled to compensation for the injuries he sustained in the June 25, 2011 collision because he sustained them while he was traveling to his duty shift on his usual route to the police station. The collision occurred at a point prior to the time he was required to deviate slightly from his usual route to take his children to day care. Moreover, the plaintiff believed that his employment created the need for him to take his children to day care.

The commissioner found the defendants' position to be that at the time of the collision, the plaintiff was engaged in an act preliminary to his employment because he had his children in his motor vehicle and was taking them to day care. Moreover, the defendants believed that, at the time of the collision, the plaintiff was performing a purely personal act and, therefore, his injuries did not arise out of or in the course of his employment.

The commissioner found that the plaintiff was credible and that he sustained compensable work-related injuries to his left foot and left knee as a result of the subject collision. The collision occurred within the plaintiff's period of employment and at a place where the plaintiff reasonably may have been at the time because he was a portal-to-portal employee on his way to work. Moreover, the plaintiff was fulfilling the duties of employment by driving his vehicle to the police station in order to arrive at work at his scheduled time. The commissioner found that the plaintiff's act of driving his children to day care was so inconsequential relative to his employment duties, which include driving to work, that it did not remove him from the course and scope of his employment. See Kish v. Nursing & Home Care, Inc., 248 Conn. 379, 727 A.2d 1253 (1999).

The commissioner also found that by taking his children to day care while on his way to work the plaintiff did not substantially deviate from his employment duties such that his right to collect workers' compensation benefits terminated. The plaintiff's driving his children to day care on his normal route of travel did not temporarily terminate his employment relationship. The commissioner did not find that the plaintiff was engaged in a preliminary act in preparation for work when he was involved in the collision. The commissioner thus ordered the defendants to accept compensability of the injuries the plaintiff sustained in the June 25, 2011 collision.

The defendants filed a motion to correct certain of the commissioner's findings and award. The commissioner denied the motion to correct. The defendants appealed to the board from the finding and award.

On appeal to the board, the defendants relied on their interpretation of Perun v. Danbury, 5651 CRB–7–11–5 (May 5, 2012),² arguing that § 31–275(1)(A)(i) and (E)³ must be read together. In their view, at the time the plaintiff sustained injuries, he was engaged in a “preliminary act” prior to beginning his trip to the police station and, therefore, the injury was not compensable. The board concluded that the defendants had misconstrued Perun, which is factually distinguishable, as the claimant in Perun had not yet left his abode when he fell on ice in his driveway, which is by regulatory definition part of an abode. See Regs., Conn. State Agencies § 31–275–1(2)(f). The board stated that § 31–275(1) “is written in the conjunctive, which means [that] in order for an ‘[act] in preparation for work’ to be deemed outside of the employment it must occur at the claimant's abode. By the plain meaning of the statute, the [plaintiff] was not engaged in a preliminary act at the time he was injured on a public highway.”⁴ (Footnote omitted.)

As to the purpose of the plaintiff's trip, the board cited the rule enunciated in Dombach v. Olkon Corp., 163 Conn. 216, 224, 302 A.2d 270 (1972), regarding injuries that may have incurred during “dual purpose” travel, i.e., injuries incurred during dual purpose travel are compensable if the trip was such that it would have been performed in the absence of a personal benefit to the employee. It then applied the rule to the facts of this case, stating that if the plaintiff had not been directed to report for duty on June 25, 2011, he would not have undertaken the trip. If the plaintiff had not been directed to report for duty, he would not have taken the children to day care, as they would have spent the night with him in Hamden. Moreover, the plaintiff would have followed the same route in the absence of any personal responsibilities. The board, therefore, affirmed the decision of the commissioner.

On appeal to this court, the defendants claim that the plaintiff's injuries are not compensable because at the time he was injured he was taking his children to day care, which is an activity in preparation for work, and his trip to day care was a significant deviation from his work route. We disagree with the defendants.

We begin our analysis with the applicable standard of review. “A party aggrieved by a commissioner's decision to grant or deny an award may appeal to the board pursuant to General Statutes § 31–301.... The appropriate standard applicable to the board when reviewing a decision of a commissioner is well established. [T]he review [board's] hearing of an appeal from the...