Menzies v. Fisher
Menzies v. Fisher
Opinion of the Court
These consolidated cases are appeals from judgments of the Superior Court, which dismissed appeals from a finding and award of the workmen’s compensation commissioner. The appeal of the plaintiff-widow, Euphemia Menzies, challenges the denial of an award of attorney’s fees and the denial of a motion which sought to preclude the defendants from asserting a defense. In the appeal of the defendants Everett Fisher and The Atlantic Companies, the fundamental issue is whether the injury which led to the death of John D. Menzies was one which arose out of and in the course of his employment.
The material facts are not in dispute: The plaintiff’s husband, John D. Menzies, was employed by Fisher as a chauffeur and handyman. Menzies lived in his own house, located in the northeastern area of
In the late afternoon of October 1,1970, Menzies, having completed his normal workday, started to drive home from his employer’s residence in an automobile furnished for his use by his employer. He followed his usual route home until he stopped at the home of the Horst Von Hennings, personal acquaintances of his, with the purpose of picking up their mail. The Von Hennings’ home is situated on Stanwich Road in Greenwich, on a route Menzies normally took home from his place of employment, and their mailbox is located at the roadside. Menzies parked the automobile on a slight incline on Stanwich Road at the edge of the Von Hennings’ driveway and got out of the automobile. Before he reached the mailbox, the automobile rolled backward down the incline and over him. The automobile was later found against a stone wall situated about fifty feet south of the mailbox with its engine running, in reverse gear and with its parking brake on. Menzies was discovered by a passerby. He died three days later.
On these facts the commissioner awarded workinen’s compensation to the plaintiff, the widow of the deceased. The defendants claim that the facts do not support the conclusion that the injury was one “arising out of and in the course of his employment” within the meaning of § 31-275 of the General Statutes as interpreted by this court. On the view we
I
We first consider the plaintiff’s claim that the commissioner erred in refusing to grant her “Motion to Preclude” the defendant from contesting compensability, pursuant to § 31-297 (b) of the General Statutes. That section provides: “Whenever liability to pay compensation is contested by the employer, he shall file with the compensation commissioner, on or before the twentieth day after he has received a written notice of claim, a notice in accord with a form prescribed by the commissioners stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury or death and the specific grounds on which the right to compensation is contested, and a copy thereof shall be sent to the employee. If the employer or his legal representative fails to file the notice contesting liability within the time prescribed herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury or death and shall have no right thereafter to contest the employee’s right to receive compensation on any grounds or the extent of his disability.” (Emphasis added.) The italicized language of the statute was incorporated by Public Acts 1967, No. 842, § 7. The plaintiff claims that the defendant employer’s notice, which merely stated “[w]e deny a compensable accident or injury,” was fatally deficient in failing to specify the grounds on which compensation was denied. Under the force of the 1967 amendment to
To determine the scope and operation of the 1967 amendments to § 31-297 (b), it is appropriate for us to consider the circumstances surrounding their adoption. See Hartford Electric Light Co. v. Wethersfield, 165 Conn. 211, 222, 332 A.2d 83, and cases cited. The statutory changes which are of concern to us here were in one small section of a rather substantial piece of legislation, Public Acts 1967, No. 842. By this act the legislature sought to correct some of the glaring inequities and inadequacies of the Workmen’s Compensation Act. Among the defects in previous provisions of the act were the needless, prejudicial delays in the proceedings before the commissioners, delays by employers or insurers in the payment of benefits, lack of knowledge on the part of employees that they were entitled to benefits and the general inequality of resources available to claimants with bona fide claims. See 12 H.R. Proc., Pt. 9, 1967 Sess., pp. 4035-37. When the amendment was proposed for passage, the member of the committee presenting the bill (1967 Sess., H.B. 2161) stated: “The present law requires employers to give notice of intention to contest within 20 days after notice of injury. The commissioners are not in agreement as to what the results are when the employer fails to give the required notice, or where the notice involved does not comply with the law. Some hold, in effect, that there is no penalty, while
The object which the legislature sought to accomplish is plain. Section 31-297 (b) was amended to ensure (1) that employers would bear the burden of investigating a claim promptly and (2) that employees would be timely apprised of the specific reasons for the denial of their claim. These effects would, in turn, diminish delays in the proceedings, discourage arbitrary refusal of bona fide claims and ■ narrow the legal issues which were to be contested. To narrow the scope of the controversy would
It may be argued that, seen from a strict, technical point of view, the defendants’ denial of a “compensable accident or injury” restricts the controversy to the legal questions whether the alleged injury arose out of and in the course of employment and whether it resulted in the death of John Menzies; see De la Pena v. Jackson Stone Co., 103 Conn. 93, 99-100, 130 A. 89; but to place a technical construction on a procedure designed to be simple runs counter to the spirit of the Workmen’s Compensation Act, as well as to its literal provision that “no
The amendment to § 31-297 which was adopted in 1967 embodies the recognition that it is within the employer’s power to supply the answers to such questions in a simple, forthright manner prior to a hearing. As a procedural rule, this part of the statute operates nevertheless substantively in requiring initial affirmative acts from an employer beyond those normally incident to a court proceeding. It is up to the employer to investigate the claim forthwith and either to concede its compensability or to reveal concrete reasons for contesting that claim. This rule is equitable because employers and insurers have the necessary resources to fulfill its mandate, whereas
Admittedly, the statute does not unequivocally dictate that a deficient notice of disclaimer be treated as no notice whatsoever. The considerations which we have treated above, however, lead us to view the statutory effect of notice with an eye toward accomplishing the goal of the 1967 amendments. From the claimant’s vantage point, an employer whose
We hold, therefore, that the giving of notice by the employer as to the specific grounds on which the right to compensation is contested is a condition precedent to the defense of the action. The duty to comply with the statute rests on the employer. See Newell v. North Anson Reel Co., 161 Me. 461, 214 A.2d 97. The notice by the employer need not be expressed with the technical precision of a plead
Judged by this standard, the notice submitted by the employer, “ [w] e deny a compensable accident or injury,” falls short of the statutory requirement in failing to supply any specific grounds for denying the plaintiff’s claim. We conclude that the court should have sustained the claimant’s appeal relating to the motion to preclude. Its failure to do so, however, constitutes harmless error in light of its sustaining the award. Our decision as to the procedural effect of § 31-297 thus renders moot the claim by the defendants that the injuries sustained by the claimant’s decedent did not, on the facts, arise out of and in the course of employment.
We turn next to the plaintiff’s claim that she was entitled as of right to an award of attorney’s fees for her representation at the formal hearing. The court in passing on this claim stated in its memorandum of decision that “the respondent has not unreasonably contested liability, and consequently the allowance of fees was within the discretion of the Commissioner.” It is plain that the court sustained the commissioner’s decision on the authority of General Statutes § 31-300. That statute was amended by Public Acts 1967, No. 842, § 10, to provide: “In cases where the claimant prevails and the commissioner finds that the employer or insurer has unreasonably contested liability, the commissioner may allow to the claimant a reasonable attorney’s fee.” The plaintiff has no quarrel with the correctness of the commissioner’s decision under § 31-300 of the General Statutes; she makes no assertion that he abused his discretion in denying the award of attorney’s fees.
The plaintiff argues, however, that she was entitled to an attorney’s fee for representation at the formal hearing as a matter of right by virtue of General Statutes § 31-298. A few weeks prior to the 1967 amendment to § 31-300 (Public Acts 1967, No. 842), the legislature added to General Statutes § 31-298 an amendment providing that if the claimant prevails on final judgment after a formal hearing before the commissioner, he “shall be entitled . . . [to] attorney’s fees for representation of the claimant at the formal hearing.” Some weeks later the legislature enacted Public Acts 1967, No. 842, § 8 of which expressly repealed § 31-298 and which
There is no error in either of the appeals.
In this opinion Loiselle and Bogdanski, Js., concurred.
Among the former prohibitive hurdles to meritorious claims were the worker’s loss of wages for the day lost at a formal hearing (now cured by $ 31-298, as amended by Public Acts 1967, No. 842, § 8) and substantial legal fees incurred in presenting and prosecuting his claim (now see § 31-298 as amended by Public Acts 1967, No. 242, and § 31-300, as amended by Public Acts 1967, No. 842, § 10).
General Statutes § 2-18, entitled “Form of bills amending statutes,” provides in part: “Matter to be omitted or repealed shall be surrounded by brackets.” We consider this statute to be a directive for the mechanical form of printed bills, and not a mandate for the validity of public acts.
It has been indicated to the court that it has been the longstanding practice of the legislative commissioners’ office, in the discharge of its official duties as publisher of the supplements and revisions of the General Statutes (see General Statutes, c. 17), to incorporate in one section amendments to the same statutory section effected by two or more acts of the same session of the General Assembly where the later act or acts do not refer to and incorporate the amendment of the eariier act and where the several amendments are not in irreconcilable conflict. The validity of this practice was neither argued nor raised as an issue in this case and accordingly is not decided by us.
Dissenting Opinion
(dissenting). I do not agree with the majority opinion and would hold that the workmen’s compensation commissioner and the Superior Court both correctly decided that the defendant employer was not preeluded from contesting liability under the provisions of the Workmen’s Compensation Act. The majority opinion holds that the defendants were precluded on procedural grounds from contesting liability; so it was unnecessary for that opinion to discuss on its merits the issue of liability and, accordingly, it properly refrained from doing so. Since I do not concur with the holding that the defendants were for procedural reasons precluded from contesting the merits of the plaintiff’s claim, I think that issue is not moot and it is pertinent in this dissenting opinion to comment also on the merits of the issue of liability. This dissenting opinion, accordingly longer than usual, requires a discussion of two separate issues—preclusion to contest liability and the court’s decision on the merits of the issue of liability.
I
Preclusion
The majority opinion construes § 31-297 (b) of the General Statutes to deny to the defendants not only the right to contest liability and be heard on the merits of whatever defenses may be available to
The notice filed by the defendants pursuant to the statute stated as the ground for contesting liability: “We deny a compensable accident or injury.” In my opinion this notice substantially complied with the statutory directive that the notice of contest should state “the specific grounds on which the right to compensation is contested.” Although the notice disclaiming liability would have more fully complied with the statutory direction of specificity if it had been more detailed, the denial of a “compensable” accident or injury substantially narrowed the possibly contested issues to the single one of whether the injury alleged was “compensable” under the provisions of the Workmen’s Compensation Act. Acei
The plaintiff argued that because the Workmen’s Compensation Act should be interpreted liberally in favor of claimants; see, for example, Klapproth
In my opinion the defendants complied with the statutory directive as to the timely filing of their notice contesting liability but even if their stated ground of defense were not sufficiently specific fully to apprise the claimant of their defense I cannot read § 31-297 (b) as precluding them from contesting the plaintiff’s claims and as permitting the plaintiff to prevail as on default and without requiring her to prove that she is in fact entitled to the workmen’s compensation benefits which she has claimed. I would find no error in the conclusions of
H
Liability
On the merits of the issue of liability, I would find error in the judgment sustaining the commissioner’s award to the claimant. The basic facts have been recited in the majority opinion with the exception of one not only material but decisive fact which the defendants are entitled to have added to the finding in accordance with their assignment of error. This fact is that when Menzies, on his way home, parked the automobile and left it to go to pick up the mail that had been left in the Von Hennings’ mailbox and while on that errand sustained his fatal injury, he was doing an act as a favor to his neighbors and one which had nothing to do with his employment by the defendant Fisher. The plaintiff herself so testified.
The plaintiff has argued that because the mailbox was situated directly on the route usually taken by Menzies from work to home and his employer would permit such a personal errand as he was doing for the Von Hennings, there was no such deviation. The weakness in this argument is that a deviation from employment may occur regardless of any geographic change of position. The claimant has the burden of proving a compensable injury. Dombach v. Olkon Corporation, 163 Conn. 216, 221, 302 A.2d 270; Woodley v. Rossi, 152 Conn. 1, 4, 202 A.2d 136. To be compensable, the injury must meet the dual tests of having arisen in the course of the employment and out of the employment. “[A]n injury arises in the course of the employment when it takes place (a) within the period of the employment, (b) at a place where the employee may reasonably be and (c) while he is reasonably fulfilling the duties of the employment or doing something incidental to it. Woodley v. Rossi, . . . [152 Conn. 1, 4, 202 A.2d 136] ; Farn
The finding as corrected discloses that in this case the third requirement of the “in the course of his employment” criterion was not met. Menzies was not at the time of his injury performing any duties but had deviated temporarily from the course of his employment. Case law has rather precisely delineated what kinds of interruptions constitute deviations. If a momentary interruption serves the purpose of benefiting the employer, regardless of whom else it might benefit, an injury resulting therefrom may be compensable. Farnham v. Labutis, 147 Conn. 267, 270, 160 A.2d 120; Kuharski v. Bristol Brass Corporation, 132 Conn. 563, 566, 46 A.2d 11; Davis v. Goldie Motors, Inc., 129 Conn. 240, 243, 27 A.2d 164. Similarly, injuries occurring during diversions from the usual course of employment which diversions nevertheless enable the employee more efficiently or more comfortably to continue performing his duties are compensable. Vitas v. Grace Hospital Society, 107 Conn. 512, 516, 141 A. 649; Ryerson v. A. E. Bounty Co., 107 Conn. 370, 375, 140 A. 728; see 1 Larson, Law of Workmen’s Compensation, p. 4-269, § 19.63. Where, however, the interruption and deviation confer no benefit on the employer, either directly, or indirectly by fostering the well-being of the employee, an injury arising therein is not compensable. Farnham v. Labutis, supra; Davis
The suggestion that the defendant employer would have acquiesced in the performance of Menzies’ errand is of no help to the plaintiff. The mere fact that an employer has granted a personal privilege, the performance of which is not incidental to the employment, does not have the effect of rendering compensable otherwise noneompensable injuries arising in its performance. Mulligan v. Oakes., supra; see Farnham v. Labutis, supra.
Because Menzies’ injury arose during and out of a deviation from the course of his employment in an undertaking which was not within the scope of his employment, conferred no benefit on his employer and entailed risks different from the usual hazards of his employment in driving to and from work, the court erred in sustaining the conclusion of the commissioner that the injury “arose out of and in the course of his employment with the respondent employer.”
In my opinion there was no error in the court’s decision that the commissioner properly held that the defendants were not precluded from asserting their defense that the injuries sustained by Menzies
In this opinion MacDonald, J., concurred.
“Q. This picking up of the mail was being done as a favor for some neighbors? A. Yes, sir.
“Q. This didn’t have anything to do with his employment? A. No sir. I do the same for my other neighbors.
“Q. He indicated to you on the road that day that he was in the act of getting some mail when the accident happened? A. Yes sir.
“Q. This was for the benefit of your neighbors who had asked him to do this? A. Yes.”
“[General Statutes] See. 31-275. definitions. . . . 'Arising out of and in the eourse of his employment’ means an accidental injury happening to an employee . . . originating while he has been engaged in the line of his duty in the business or affairs of the employer upon the employer’s premises, or while so engaged elsewhere upon the employer’s business or affairs by the direction, express or implied, of the employer. . . .
“A personal injury shall not be deemed to arise out of the employment unless causally traceable to the employment . . . .”
Reference
- Full Case Name
- Euphemia Menzies v. Everett Fisher Et Al. (Two Cases)
- Cited By
- 43 cases
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- Published