Gordon v. United Aircraft Corp.

• Decision Date: 19 February 1963
• Citation: 189 A.2d 384,150 Conn. 328
• Court: Connecticut Supreme Court
• Parties: Joel GORDON v. UNITED AIRCRAFT CORPORATION et al. Supreme Court of Errors of Connecticut

Page 384

189 A.2d 384

150 Conn. 328

Joel GORDON v. UNITED AIRCRAFT CORPORATION et al.

Supreme Court of Errors of Connecticut.

Feb. 19, 1963.

Mark C. Yellin, Hartford, with whom were Sanford L. Rosenberg, Hartford, and, on the brief, Martin W. Hoffman, Newington, for appellant (plaintiff).

George A. Downing, Manchester, with whom, on the brief, were Atherton B. Ryan and John W. Allen, Manchester, for appellees (defendants).

Before BALDWIN, C. J., and KING, MURPHY, SHEA and ALCORN, JJ.

KING, Associate Justice.

The plaintiff claimed compensation for an injury which occurred as he was drying himself after taking a shower following a practice basketball game in which he had engaged as a member of a team composed of fellow employees of the defendant employer.

'The burden was on the plaintiff to prove that he sustained an injury, not merely in the course of his employment, but arising out, that is, caused by, his employment.' Triano v. United States Rubber Co., 144 Conn. 393, 396, 132 A.2d 570, 571; Nagyfy v. Miller's Stratford Provision Co., 145 Conn. 726, 139 A.2d 604; D'Angelo v. Connecticut Light & Power Co., 146 Conn. 505, 507, 152 A.2d 636.

The claim of the plaintiff of a causal connection between the injury and his employment was based on two propositions: (a) His injury was caused by the basketball practice. (b) The basketball practice was so connected with his employment that an injury sustained as a consequence of the practice would arise in the course of and out of his employment so as to be compensable. On the second proposition, see Matter of Tedesco v. General Electric Co., 305 N.Y. 544, 550, 114 N.E.2d 33; Lindsay v. Public Service Co., 146 Colo. 579, 581, 362 P.2d 407; 1 Larson, Workmen's Compensation Law, § 22.24; and the notes in 115 A.L.R. 993, 996, and in 36 Conn.B.J. 131; see also cases such as Farnham v. Labutis, 147 Conn. 267, 270, 160 A.2d 120; Taylor v. M. A. Gammino Construction Co., 127 Conn. 528, 532, 18 A.2d 400; and Stakonis v. United Advertising Corporation, 110 Conn. 384, 387, 148 A. 334.

The defendants, before the commissioner, denied both of the foregoing propositions. The commissioner found, in effect, that the plaintiff had failed to sustain his burden of proof on either issue and accordingly denied compensation. From the affirmance of that action by the Superior Court, this appeal was taken. To prevail, the plaintiff had to prove both propositions, since each was an essential element of his right to compensation. Unless he proved the first, that is, that the basketball practice was a cause of his injury, there would be no occasion for our considering the second.

On the first proposition, the commissioner found that although no definite diagnosis was made as to the plaintiff's injury, it was probably a vascular thrombosis, the exact cause of which is unknown; that there are cases where such a thrombosis has followed violent exercise; and that it may be that the basketball practice precipitated the vascular thrombosis, if in fact that was the plaintiff's injury. It is clear that the findings fell far short of a finding that it was reasonably probable that the basketball practice was a cause of the plaintiff's injury, even if we assume that they amounted to a finding that it was reasonably probable that the plaintiff's injury was a vascular thrombosis. To sustain his burden of proof on this essential element of causation, it was necessary that the plaintiff prove that it was reasonably probable that that element was true. Witkowski v. Goldberg, 115 Conn. 693, 696, 163 A. 413; Madore v. New Departure Mfg. Co., 104 Conn. 709, 714, 134 A. 259.

The plaintiff recognized this basic deficiency and sought over a dozen changes in the finding bearing upon this particular issue of the causal connection between the basketball practice and the injury. The requested changes, none of which were granted either by the commissioner or by the Superior Court, included the crucial findings that it was probable not only that the plaintiff had suffered a vascular thrombosis--which we have assumed that the commissioner in effect actually did find--but also that this thrombosis had been caused by the basketball practice. The...