Pagani v. BT II, Ltd. Partnership

Decision Date09 July 1991
Docket NumberNo. 8805,8805
Citation24 Conn.App. 739,592 A.2d 397
CourtConnecticut Court of Appeals

Warren W. Pierce, II, Lebanon, with whom was Donald J. O'Brien, East Hartford, for appellant-appellee (named defendant).

Donald R. Holtman, with whom, on the brief, was William Norton, Hartford, for appellee-appellant (plaintiff).


HEIMAN, Judge.

The defendant 1 appeals from the judgment, rendered after a jury trial, awarding the plaintiff $8440.48. The plaintiff has cross appealed.

In its appeal, the defendant claims that the trial court improperly (1) refused to credit its claim that the knowing but passive acceptance of workers' compensation benefits by the plaintiff precluded her from maintaining a civil action for her injury, (2) denied its motion to set aside the verdict, and (3) granted the plaintiff's motion in limine that precluded the defendant from offering evidence of the receipt by the plaintiff of workers' compensation payments.

In her cross appeal, the plaintiff challenges the actions of the trial court in (1) refusing to submit a CUTPA 2 count to the jury, (2) refusing to admit the plaintiff's exhibit I for identification into evidence as a full exhibit, (3) submitting interrogatories to the jury, and (4) ordering the plaintiff to reimburse to the defendant's workers' compensation insurer all payments made by it for her benefit.

We affirm that portion of the judgment from which the defendant appeals and reverse the judgment on the plaintiff's cross appeal with regard to the order of reimbursement only.

The jury could reasonably have found the following facts. On January 30, 1987, the plaintiff was employed as a cocktail waitress at a restaurant known as BT II, which was owned and operated by the defendant. She arrived at the restaurant sixty to ninety minutes before the commencement of her work day in order to eat a meal prior to beginning her shift. All employees of the defendant received discounts on food. The maximum discount was available only on days that the employee was scheduled to work. On the day in question, the plaintiff sat at a special table that was reserved for employees, ordered, and consumed a meal. Subsequently, she changed her clothes on the premises and prepared to begin work. Within seventy-two hours, the plaintiff was afflicted with salmonella poisoning. She notified the defendant that she would be unable to work because of the illness. As a consequence of her illness, the plaintiff was under the care of a physician, and was admitted to the New Britain General Hospital for four days. By February 27, 1987, the plaintiff was feeling well, although she was not permitted to resume work in a food handling facility until she had tested negative for salmonella on three successive occasions. The plaintiff's hospital, medical and prescription bills approximated $2342.38, and her lost wage claim was approximately $1600.23.




The defendant first asserts that the plaintiff's knowing acceptance of workers' compensation benefits constitutes a waiver of her right to prosecute this civil action, and that a contrary result would frustrate the legislative intent of General Statutes § 31-284 of the Connecticut Workers' Compensation Act. We do not agree.

Several additional facts are necessary to a resolution of this claim. After she fell ill, the plaintiff notified her supervisor of her illness and advised her that she would be unable to work her shifts. The supervisor notified the defendant's workers' compensation carrier. On its own, the carrier began sending checks to the plaintiff for lost wages, and paid medical, hospital and prescription bills on behalf of the plaintiff. The carrier's total expenditure was $3901. The carrier was not a party to this action.

The defendant argues that the passive acceptance by the plaintiff of these payments precludes her from maintaining her civil action. We do not agree.

Our scheme of workers' compensation creates an exclusive remedy for job related injuries. Sgueglia v. Milne Construction Co., 212 Conn. 427, 433, 562 A.2d 505 (1989). Our statute is mandatory in its terms and specifically provides that an employer "shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment ... but an employer shall secure compensation for his employees...." General Statutes § 31-284(a).

The defendant did not pursue either an estoppel theory or a claim of election of remedies before the trial court. Its theory, simply stated, is that voluntary payments that are made by an employer's workers' compensation carrier to an employee who falls ill, preclude that employee from maintaining a civil action against the employer even where the plaintiff asserts that her illness did not arise out of or in the course of her employment.

Our Supreme Court has expressly stated that "[t]he purpose of the [workers'] compensation statute is to compensate the worker for injuries arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on the employer." Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263 (1979).

We are not prepared to provide an employer with an election of remedies when the employee, for whose benefit the statute was enacted, is statutorily denied this privilege. See Klapproth v. Turner, 156 Conn. 276, 279, 240 A.2d 886 (1968). Our examination of the statutes relating to workers' compensation does not admit to such a construction.

When a plaintiff has filed a workers' compensation claim against a defendant employer seeking compensation for injuries, and the employee has been paid such benefits, the employee is thereafter precluded from seeking damages from the employer in a common law tort action. Horney v. Johnson, 167 Conn. 621, 622-23, 356 A.2d 879 (1975). We cannot, however, say that the defendant employer, by its voluntary actions, can create an exclusive remedy where none is created by statute.

It is a salutary rule of statutory construction that statutes in derogation of the common law are to be strictly construed. McKinley v. Musshorn, 185 Conn. 616, 621, 441 A.2d 600 (1981). "In a word, these statutes compromise an employee's right to a common law tort action for work related injuries in return for relatively quick and certain compensation." Mingachos v. CBS, Inc., 196 Conn. 91, 97, 491 A.2d 368 (1985). " ' "No statute is to be construed as altering the common law, farther than its words import. It is not to be construed as making any innovation upon the common law which it does not fairly express." ...' " (Citation omitted.) State v. Nugent, 199 Conn. 537, 548, 508 A.2d 728 (1986); see also Zotta v. Burns, 8 Conn.App. 169, 173, 511 A.2d 373 (1986).

To apply the construction advocated by the defendant would, in effect, require us to amend the Workers Compensation Act by judicial fiat. This we are neither authorized nor prepared to do. Cf. State v. Breton, 212 Conn. 258, 268-69, 562 A.2d 1060 (1989).


The defendant next asserts that the trial court was required to set aside the judgment because there was sufficient evidence to conclude that the plaintiff's injury arose out of and in the course of her employment. We disagree.

The legislative intent of the Workers' Compensation Act is to compensate injured employees for those injuries arising out of and in the course of employment as a form of strict liability on the employer. Jett v. Dunlap, supra.

In a situation where it is undisputed that the plaintiff was engaged in the course of his employment at the time of his injury, whether he is barred by the Workers' Compensation Act from maintaining a civil action is a question of law for the court. Velardi v. Ryder Truck Rental, Inc., 178 Conn. 371, 375, 423 A.2d 77 (1979). Conversely, where, as here, a factual dispute exists as to whether the injury complained of arose out of and in the course of employment, it is an issue for resolution by the trier of fact. F.A.S. International, Inc. v. Reilly, 179 Conn. 507, 513, 427 A.2d 392 (1980); see also Parlato v. Connecticut Transit, 181 Conn. 66, 434 A.2d 322 (1980). Further, in this case the defendant assumed the burden of proof on the issue of whether the injury arose out of and in the course of employment by pleading the Workers' Compensation Act as a special defense. Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 237, 520 A.2d 1008 (1987); see Practice Book § 164.

The defendant argues that the decision of our Supreme Court in McNamara v. Hamden, 176 Conn. 547, 398 A.2d 1161 (1979), mandates a conclusion that the plaintiff's injury arose out of or in the course of her employment. We do not agree. McNamara is an appeal from a decision of a compensation commissioner that held that an injury suffered by an employee during a Ping-Pong game on his employer's premises was not a compensable injury. The court in McNamara established tests for determining if an injury is compensable: "In order to be compensable, an injury must (1) arise out of employment; and (2) occur in the course of the employment. To occur in the course of the employment, the injury must take place (a) within the period of the employment, (b) at a place where the employee may reasonably be, and (c) while the employee is reasonably fulfilling the duties of the employment or doing something incidental to it." Id., at 556, 398 A.2d 1161.

In addition, the rule for determining whether the activity is incidental to the employment turns on whether the activity is regularly engaged in on the employer's premises, within the period of employment, and with the employer's approval or acquiescence. Id. Nothing in McNamara transforms these issues into anything other than fact bound issues to be resolved...

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    ...the employment or doing something incidental to it." McNamara v. Hamden, supra, at 550-51, 398 A.2d 1161; Pagani v. BT II, Limited Partnership, 24 Conn.App. 739, 745-46, 592 A.2d 397, cert. dismissed, 220 Conn. 902, 593 A.2d 968 The commissioner found, and the review division affirmed, that......
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