Fair v. People's Sav. Bank

Decision Date24 May 1988
Docket NumberNo. 13247,13247
Citation542 A.2d 1118,207 Conn. 535
CourtConnecticut Supreme Court
PartiesTimothy FAIR, Jr. v. PEOPLE'S SAVINGS BANK et al.

James L. Pomeranz, with whom, on the brief, was Anne M. Kelly, Hartford, for appellants (named defendant).

Elaine M. Scanlon, with whom, on the brief, was Howard T. Owens, Jr., Bridgeport, for appellee (plaintiff).


GLASS, Associate Justice.

The named defendant appeals 1 from the decision of the workers' compensation review division reversing the denial of an award to the plaintiff, Timothy Fair, Jr., by the workers' compensation commissioner (commissioner). On appeal, the defendant claims that the compensation review division erred in concluding that the plaintiff's decedent's injury and death arose out of her employment. We find error.

This matter was submitted on a stipulation of facts to the commissioner for the fourth district, who adopted the stipulation. The commissioner made findings that Gail Rogers, the decedent, was employed by the defendant, the People's Savings Bank (bank). The decedent and Timothy Fair, her boyfriend, had lived together until December, 1980, shortly before her death. Fair did not work for the bank. During the summer of 1980, the relationship between Fair and the decedent deteriorated, and in late December, 1980, the decedent told Fair that she was leaving him.

On December 29, 1980, while she was working at the bank, the decedent received harassing telephone calls from Fair. Fair also went to the bank that morning, threatened the decedent and was escorted out of the bank by bank security personnel. The decedent, fearing for her safety, decided to leave her job and went to the bank's personnel office to resign. While the decedent was in the process of resigning, Fair came back to the bank and asked the decedent's supervisor where she was at the time. The supervisor told him that the decedent was in the personnel office. The supervisor did not notify the personnel office or the bank security department that Fair had returned to the bank. Meanwhile, Annie Robinson, a bank personnel employee, conducted an "exit interview," and arranged for the decedent's departure. On two occasions Robinson attempted to notify bank security personnel that Fair presented a threat to the decedent. A co-employee, Catrina Peters, was asked to assist the decedent in getting home. At about 1:15 p.m., Fair entered the personnel office, demanded to see the decedent and ordered Peters out of the office. She refused to leave and attempted to telephone for assistance. Fair then pulled a .38 caliber revolver out from his clothing and shot the decedent in the head. The decedent died on January 7, 1981, from the injuries that she had sustained as a result of the shooting. Timothy Fair, Jr., born on April 25, 1980, is the plaintiff and the sole child and dependent of the decedent. Fair, the decedent's assailant, is the father of Timothy Fair, Jr.

On the basis of these findings the commissioner concluded that the decedent's death did not arise out of her employment and dismissed the plaintiff's claim. The plaintiff appealed to the review division, and the review division affirmed the findings of the commissioner, but concluded that the decedent's death did arise out of her employment and held that the claim was compensable. The defendant appealed the decision of the review division to the Appellate Court, and the case was transferred to this court pursuant to Practice Book § 4023. On appeal, the defendant claims that the review division erred in concluding that the decedent's death arose out of and in the course of her employment. The defendant argues that the assault on the decedent was inevitable and that the animosity between Fair and the decedent, culminating in the assault, was imported into the decedent's employment from her domestic and private life. We agree.


At the outset, we must determine the appropriate standard of review when a decision of a commissioner is appealed to the compensation review division. A decision of a commissioner granting or denying an award may be appealed to the review division pursuant to General Statutes § 31-301(a), which provides in pertinent part: "At any time within ten days after entry of such award by the commissioner ... either party may appeal therefrom to the compensation review division.... Such appeal shall be heard by a panel of the compensation review division.... The compensation review division shall hear the appeal on the record of the hearing before the commissioner, provided, if it is shown to the satisfaction of the division that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, the compensation review division may hear additional evidence or testimony. Upon the final determination of the appeal by the compensation review division ... it shall issue its decision, affirming, modifying or reversing the decision of the commissioner. The decision of the compensation review division shall include its findings and award and conclusions of law...." (Emphasis added.)

It is clear that under General Statutes § 31-301(a) and § 31-301-8 of the Regulations of Connecticut State Agencies 2 the review division's hearing of an appeal from the commissioner is not a de novo hearing of the facts. Although the review division may take additional material evidence, this is proper only if it is shown to its satisfaction that good reasons exist as to why the evidence was not presented to the commissioner. Otherwise, it is obliged to hear the appeal on the record and not "retry the facts." See Regs., Conn. State Agencies § 31-301-8. We have stated: "[T]he power and duty of determining the facts rests on the commissioner, the trier of facts. Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 457, 78 A.2d 339 (1951). The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Mathurin v. Putnam, 136 Conn. 361, 366, 71 A.2d 599 (1950)." Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18, 411 A.2d 924 (1979); Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 145, 291 A.2d 743 (1972).

Moreover, the United States Supreme Court has held that "[i]n determining whether a particular injury arose out of and in the course of employment, the Deputy Commissioner must necessarily draw an inference from what he has found to be the basic facts. The propriety of that inference, of course, is vital to the validity of the order subsequently entered. But the scope of judicial review of that inference is sharply limited by the foregoing statutory provisions. If supported by evidence and not inconsistent with the law, the Deputy Commissioner's inference that an injury did or did not arise out of and in the course of employment is conclusive. No reviewing court can then set aside that inference because the opposite one is thought to be more reasonable; nor can the opposite inference be substituted by the court because of a belief that the one chosen by the Deputy Commissioner is factually questionable." Voehl v. Indemnity Ins. Co., [288 U.S. 162, 166, 53 S.Ct. 380, 77 L.Ed. 676 (1933) ]; Del Vecchio v. Bowers, 296 U.S. 280, 287 [56 S.Ct. 190, 80 L.Ed. 229 (1935) ]; South Chicago Co. v. Bassett, 309 U.S. 251, 257-258 [60 S.Ct. 544, 84 L.Ed. 732 (1940) ]; Parker v. Motor Boat Sales, 314 U.S. 244, 246 [62 S.Ct. 221, 86 L.Ed. 184 (1941), reh. denied, 314 U.S. 716, 62 S.Ct. 477, 86 L.Ed. 570 (1942) ]; Davis v. Department of Labor, [317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (1942), reh. denied, 317 U.S. 713, 63 S.Ct. 438, 87 L.Ed. 567 (1943) ]; Norton v. Warner Co., 321 U.S. 565, 568-569 [64 S.Ct. 747, 88 L.Ed. 931 (1944) ].

"It matters not that the basic facts from which the Deputy Commissioner draws this inference are undisputed rather than controverted. See Boehm v. Commissioner, 326 U.S. 287, 293 [66 S.Ct. 120, 90 L.Ed. 78 (1945) ]. It is likewise immaterial that the facts permit the drawing of diverse inferences. The Deputy Commissioner alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court. Del Vecchio v. Bowers, supra, 296 U.S. at 287, 56 S.Ct. at 193. Moreover, the fact that the inference of the type here made by the Deputy Commissioner involves an application of a broad statutory term or phrase to a specific set of facts gives rise to no greater scope of judicial review. Labor Board v. Hearst Publications, 322 U.S. 111, 131 [64 S.Ct. 851, 88 L.Ed. 1170, reh. denied, 322 U.S. 769, 64 S.Ct. 1148, 88 L.Ed. 1595 (1944) ]; Commissioner v. Scottish American Co., 323 U.S. 119, 124 [65 S.Ct. 169, 89 L.Ed. 113 (1944) ]; Unemployment Compensation Commission v. Aragon, 329 U.S. 143, 153-154 [67 S.Ct. 245, 91 L.Ed. 136 (1946) ]. Even if such an inference be considered more legal than factual in nature, the reviewing court's function is exhausted when it becomes evident that the Deputy Commissioner's choice has substantial roots in the evidence and is not forbidden by the law. Such is the result of the statutory provision permitting the suspension or setting aside of compensation orders only 'if not in accordance with law.' " Cardillo v. Liberty Mutual Co., 330 U.S. 469, 477-78, 67 S.Ct. 801, 806, 91 L.Ed. 1028 (1947).

To the extent that we have articulated a standard for reviewing a determination by a commissioner that an injury arose out of the employment, we have treated this issue as factual in nature and, therefore, have accorded the commissioner's conclusion the same deference as that given to similar conclusions of a trial judge or jury on the issue of proximate cause. "A...

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