Rauser v. Pitney Bowes, Inc.

190 Conn.App. 541

211 A.3d 124

John RAUSER

v.PITNEY BOWES, INC., et al.

AC 41025

Appellate Court of Connecticut.

Argued March 19, 2019

Officially released June 11, 2019

Michael Kerin, for the appellant (plaintiff).

Michael M. Buonopane, for the appellee (named defendant).

Alvord, Keller and Beach, Js.

KELLER, J.

The plaintiff, John Rauser, appeals from the decision of the Compensation Review Board (board), affirming the decision of the Workers' Compensation Commissioner for the Third District (commissioner) dismissing the plaintiff's claim for workers' compensation benefits. The plaintiff claims that the board erred in affirming the commissioner's decision in light of the fact that the commissioner failed to set forth a factual determination with respect to whether, at the time he sustained the injuries for which he sought benefits, he was on the direct route of his business travel.¹ We affirm the decision of the board.

On the basis of the subordinate factual findings made by the commissioner, we set forth the relevant facts as follows. On or about June 11, 2014, the plaintiff was employed by the defendant Pitney Bowes, Inc.,² as a director of channel management. He had been employed by the defendant for twenty-eight years. Part of his work related duties required him to develop a rapport with members of the defendant's sales staff in order to understand and evaluate not only what they have sold to the defendant's customers, but to approve or disapprove of their sales methods. On June 8, 2014, the plaintiff and another coworker, both of whom resided in Connecticut, traveled to Spokane, Washington, to meet with local sales staff employed by the defendant. As with prior work related travel of this nature undertaken by the plaintiff to evaluate sales, the defendant paid for expenses related to airfare, lodging, car rental, food, and alcoholic drinks.

The plaintiff had business meetings with Spokane sales staff on June 9 and 10, 2014. On June 11, 2014, a Spokane based sales representative, Trish Lopez, invited the plaintiff and other supervisory staff to a social gathering at a Spokane bar and restaurant named Fast Eddie's All Purpose Pub (Fast Eddie's). Lopez sent the invitations on behalf of Sean Johnson, who was employed by the defendant as a general financial sales specialist. There was no formal agenda for the event, as there would be for a business meeting, and attendance was considered to be voluntary. The invitation, which Lopez sent by e-mail, specified that the gathering at Fast Eddie's was scheduled to begin at 5:30 p.m. The plaintiff and several of his Spokane colleagues attended the gathering. The plaintiff began consuming alcoholic beverages immediately upon his arrival at or about 5:30 p.m. The plaintiff engaged in what he viewed as joking around with his colleagues, although he acknowledged that several of his jokes and comments were "inappropriate and beyond the bounds of what [the defendant] would say is acceptable." For example, the plaintiff offered to assist two of his female colleagues with work matters in exchange for "sexual favors." Only a small portion of the conversation at Fast Eddie's was devoted to discussing the defendant's interests.

Lopez had been instructed by one of her superiors, Jonathan Allen, to keep an open tab at Fast Eddie's to cover expenses up to $500, but no later than 8 p.m., whichever occurred first. At 8 p.m., Lopez closed the tab incurred at Fast Eddie's, which totaled $304.78. Later, Lopez was reimbursed for this expenditure.

After 8 p.m., the plaintiff and some of his colleagues left Fast Eddie's and went to a neighboring restaurant and bar named Borracho Tacos & Tequilera (Borracho). There, the plaintiff consumed even more alcoholic beverages and continued to make comments of a sexual nature to and in the presence of his coworkers. For example, the plaintiff stated to a female coworker that if she would expose her breasts to him, he would "approve anything" that she sent to him. While at Borracho, one of his coworkers overheard him making a comment of a sexual nature to at least one other patron who was not an employee of the defendant. By 9:30 p.m., the plaintiff was visibly intoxicated, and, by midnight, the plaintiff's blood alcohol content was estimated to be .202, which significantly impaired his judgment, control, memory, skills, ability to react, and ability to assess risk.³ Moreover, the plaintiff's blood alcohol content greatly exceeded the legal limit for purposes of operating a motor vehicle in Washington.

Shortly after midnight on June 12, 2014, the plaintiff, accompanied by Johnson, exited Borracho. While walking outside in the vicinity of Borracho, several men, who were unknown to the plaintiff and Johnson, beat the plaintiff severely.⁴ The plaintiff sustained life threatening injuries for which he required immediate hospitalization. Following his release from the hospital, he underwent significant periods of rehabilitation both in Washington and Connecticut. Although the plaintiff's condition has improved, he continues to experience the effects of some of his injuries, including a diminished sense of taste and smell, as well as difficulty in per-forming some cognitive functions.

The plaintiff sought workers' compensation benefits related to the injuries he sustained in Spokane. The commissioner held a hearing related to the claim, which the defendant disputed, during which the commissioner considered documentary evidence related to the events at issue, the plaintiff's employment, and his medical treatment following the assault. The commissioner also considered the testimony of the plaintiff and several other witnesses who observed the plaintiff during the events leading up to the assault, including Johnson, Lopez, Desiree Cimarrustti, and Peter Binder. The commissioner went on to consider the testimony of Kevin O'Brien and Robbie Narcisse, both of whom had investigated the relevant events in the course of their employment with the defendant. Additionally, the commissioner considered the testimony of Marc Bayer, a toxicologist who had analyzed the plaintiff's blood alcohol content and opined with respect to the degree to which the plaintiff's blood alcohol content likely affected him during the events at issue. Finally, the court considered the police reports related to the assault.

In dismissing the claim for benefits, the commissioner found that any business purpose for which the plaintiff was present at Fast Eddie's ended by the time that Lopez paid the bar tab at 8 p.m., and that any food or drink consumed at Fast Eddie's or Borracho after that time was "purely social in nature and unrelated to the business interests of [the defendant]." The commissioner also found that "the intoxication, the sexual comments, and the drinking that continued until the midnight hour constitute a substantial deviation from work in furtherance of the employer's business ...." The commissioner concluded that "the [plaintiff] failed in his burden of persuasion to show that the assault arose out of and in the course of his duties for the employer" and that the claim was not compensable.⁵

Following the commissioner's decision, the plaintiff appealed to the board. In relevant part, the plaintiff claimed that the commissioner had erred in his determination that the plaintiff's injuries did not arise out of and in the course of his employment. The plaintiff argued that "he was assaulted and sustained injuries ... incidental to his work for [the defendant] and he would not have been where he was when he was assaulted if it was not for his business trip to Spokane, Washington and, more specifically, at the work event which was at Fast Eddie's on the night of June 11, 2014."

Relying on the commissioner's factual findings, the board rejected the plaintiff's argument. It stated: "The fundamental question which must be answered here is whether, at the time of the injury, the [plaintiff] had deviated from his employment and was not doing something incidental to his employment. Pertinent to this inquiry, the ... commissioner found that after 8 p.m. on June 11, 201[4], the [plaintiff] was no longer serving the business interests of the employer. The consumption of food, alcohol, and the nature of the discussions occurring after 8 p.m. on June 11, 201[4], constituted a substantial deviation from activities related to the [defendant's] business .... Such factual determinations will not be disturbed unless they are contrary to law, without evidence, or based on unreasonable or impermissible factual inferences .... On review, we are not persuaded that the trier's conclusion violates this appellate standard." (Citation omitted; footnote omitted.) The board also stated: "In the present matter, the [defendant's] encouragement of the [plaintiff's] social activities can only be inferred to support the time the claimant spent at Fast Eddie's. After 8 p.m. on the evening in question, the [plaintiff] no longer enjoyed the express consent or implied acquiescence of his employer for his social pursuits." Accordingly, the board affirmed the commissioner's dismissal of the plaintiff's claim.

The plaintiff argues that it is unnecessary for this court to resolve the issue of whether the commissioner correctly determined that, during the four hours between 8 p.m. and midnight, he had substantially deviated from his work on behalf of the defendant. He relies on the legal proposition that, even after an employee has completed a substantial personal deviation from his work, once he has resumed the direct route of his business travel, any injury occurring on that business route is ordinarily compensable. See, e.g., 2 A. Larson, Larson's Workers' Compensation Law (2018) § 17.03 ("we may also set aside one clearly compensable type of case—that in which the personal deviation has been completed and the direct business route has been resumed"); 2 A. Sevarino, Connecticut Workers' Compensation After Reforms ...