Balloli v. New Haven Police Dept. , 324 Conn. 14 ( 2016 )

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BALLOLI v. NEW HAVEN POLICE DEPARTMENT—DISSENT
McDONALD, J., with whom ZARELLA and ROB-
INSON, Js., join, dissenting. Under the facts of this
case, the Workers’ Compensation Commissioner for the
Third District properly concluded that the plaintiff,
Peter Balloli, did not meet his burden to prove ‘‘that
the . . . injury arose out of and in the course of his
employment as he was injured at home prior to com-
mencing his normal commute to work. He had not
departed from his ‘place of abode’ pursuant to General
Statutes § 31-275 (1) (A) (i) at the time he sustained
his back injury and therefore this incident is not com-
pensable.’’ I would affirm the decision of the Workers’
Compensation Review Board affirming the commis-
sioner’s decision.
It is important to recognize that § 31-275 (1) (A) (i)
carves out an exception to the general rule as to when
an injury occurs ‘‘ ‘in the course of . . . employment,’ ’’
one of the prerequisites to compensability. See General
Statutes § 31-275 (1). Normally, ‘‘[i]n order to establish
that his injury occurred in the course of employment,
the claimant has the burden of proving that the accident
giving rise to the injury took place (a) within the period
of the employment; (b) at a place [he] may reasonably
[have been]; and (c) while [he was] reasonably fulfilling
the duties of the employment or doing something inci-
dental to it. . . . These three parts of the required proof
of the in the course of employment test correspond,
respectively, to the time, place and circumstances of the
accident.’’ (Citations omitted; internal quotation marks
omitted.) Mazzone v. Connecticut Transit Co., 240
Conn. 788, 793, 694 A.2d 1230 (1997).
Under the general rule, ‘‘[a]n injury sustained on a
public highway while going to or from work is ordinarily
not compensable. A principal reason for this rule is that
employment ordinarily does not commence until the
claimant has reached the employer’s premises, and con-
sequently an injury sustained prior to that time would
ordinarily not occur in the course of the employment
so as to be compensable. . . . There are a number of
exceptions to the ordinary rule, four of which are . . .
(1) If the work requires the employee to travel on the
highways; (2) where the employer contracts to furnish
or does furnish transportation to and from work; (3)
where, by the terms of his employment, the employee
is subject to emergency calls and (4) where the
employee is injured while using the highway in doing
something incidental to his regular employment, for
the joint benefit of himself and his employer, with the
knowledge and approval of the employer.’’ (Citations
omitted.) Dombach v. Olkon Corp., 163 Conn. 216, 222,
302 A.2d 270 (1972); accord Labadie v. Norwalk Reha-
bilitation Services, Inc., 274 Conn. 219, 228–29, 875
A.2d 485 (2005).
Originally, police officers, like all other employees,
were subject to this ‘‘ ‘coming and going’ rule.’’ Labadie
v. Norwalk Rehabilitation Services, Inc., supra, 274
Conn. 228. Thus, an injury sustained by a police officer
while driving directly from his home to the police sta-
tion to report to work at his usual time and place was
deemed not to arise out of and in the course of employ-
ment, in the absence of evidence establishing one of
the recognized exceptions available to all employees.
See McKiernan v. New Haven, 151 Conn. 496, 498–501,
199 A.2d 695 (1964); cf. Lake v. Bridgeport, 102 Conn.
337, 341, 345, 128 A. 782 (1925) (injury deemed compen-
sable when officer was injured while in transit to police
station because he had been assigned to special police
duty at theater and was ordered to report at police
precinct nearest thereto before going on duty; ‘‘claimant
was acting in obedience to the orders of a superior
having jurisdiction to control his movements at the time
of his injury’’).
The enactment in 1969 of what is now § 31-275 (1) (A)
(i) effectively exempted police officers and firefighters
from having to prove that their commute satisfied an
exception to the coming and going rule. It provides that
‘‘[f]or a police officer or firefighter, ‘in the course of his
employment’ encompasses such individual’s departure
from the individual’s place of abode to duty, such indi-
vidual’s duty, and the return to such individual’s place
of abode after duty . . . .’’ (Emphasis added.) General
Statutes § 31-275 (1) (A) (i).
The legislature did not define ‘‘place of abode’’ for
purposes of § 31-275 (1) (A) (i).1 Nonetheless, for pur-
poses of this appeal, I agree with the majority and the
parties that it is appropriate to look to the definitions
relating to this term set forth in § 31-275 (1) (F) and § 31-
275-1 of the Regulations of Connecticut State Agencies.
The statute provides in relevant part that ‘‘ ‘place of
abode’ includes the inside of the residential structure,
the garage, the common hallways, stairways, driveways,
walkways and the yard . . . .’’ General Statutes § 31-
275 (1) (F). The regulation similarly provides in relevant
part that ‘‘ ‘place of abode’ includes, but is not limited
to: (a) House, condominium, or apartment; (b) Inside
of residential structures; (c) Garages; (d) Common hall-
ways; (e) Stairways; (f) Driveways; (g) Walkways, or
(h) Yards.’’ Regs., Conn. State Agencies § 31-275-1 (2).
Notably, these definitions are not limited to the actual
residential area but also include places where the
employee would store a vehicle used to commute to
work, i.e., a garage or a driveway. Although one’s place
of abode may have a more limited scope in other con-
texts, such as those identified by the majority, it is
logical and necessary for this term to extend to loca-
tions where the employee’s vehicle is stored for pur-
poses of § 31-275 (1). Section 31-275 (1) (A) (i) is
directed at covering certain employees’ commutes to
work, which most often occur through the employees’
use of their own vehicles. In addition, the statutory
definition of place of abode also applies to § 31-275 (1)
(E), which sets forth the rule deeming preliminary acts
or acts in preparation for work performed at the
employee’s place of abode to be generally noncompen-
sable. See footnote 1 of this dissenting opinion. The
examples of such acts indicate that clearing obstacles
inhibiting egress from where the vehicle is stored would
fall under the scope of this rule.2 See Regs., Conn. State
Agencies § 31-275-1 (1) (e).
Several other factors demonstrate that place of abode
should be given a sufficiently flexible meaning to
encompass the circumstances of the present case. As
the majority concedes, the enumerated locations in the
definitions are not an exhaustive list. See General Stat-
utes § 31-275 (1) (F) (‘‘‘place of abode’ includes’’
[emphasis added]); Regs., Conn. State Agencies § 31-
275-1 (2) (‘‘‘[e]mployee’s place of abode’ includes, but
is not limited to’’ [emphasis added]). In filling this gap,
we should be mindful of ‘‘principles of statutory con-
struction [that] require us to construe a statute in a
manner that will not thwart [the legislature’s] intended
purpose or lead to absurd results. . . . We must avoid
a construction that fails to attain a rational and sensible
result that bears directly on the purpose the legislature
sought to achieve. . . . If there are two possible inter-
pretations of a statute, we will adopt the more reason-
able construction over one that is unreasonable.’’
(Internal quotation marks omitted.) Badolato v. New
Britain, 250 Conn. 753, 757, 738 A.2d 618 (1999); accord
Coley v. Camden Associates, Inc., 243 Conn. 311, 319–
20, 702 A.2d 1180 (1997).
Therefore, the commissioner properly would con-
sider the purpose of § 31-275 (1) (A) (i), which is simply
to ensure that an injury occurring during a police offi-
cer’s or firefighter’s commute would be deemed to arise
in the course of employment. The commissioner’s
inquiry under § 31-375 (1) (A) (i) would not myopically
focus on the location where the injury occurred but
that location in connection with other facts, namely,
whether the injury occurred during ‘‘[the] individual’s
departure from [the] individual’s place of abode to duty
. . . .’’ This contextual inquiry mirrors the three parts
of proof relevant to whether an injury occurs in the
course of employment: ‘‘time, place and circumstances
of the accident.’’ (Internal quotation marks omitted.)
Mazzone v. Connecticut Transit Co., supra, 240
Conn. 793.
Such a contextual approach is necessary to reach
sensible results. The definitions of place of abode are
not limited in application to § 31-275 (1) (A) (i) but also
to other provisions applicable to all employees. See
footnote 1 of this dissenting opinion. Employees’
arrangements for their place of residence and for their
storage of vehicles vary widely. For example, an
employee may rent a room in someone else’s house,
temporarily stay with friends or relatives, live in a shel-
ter or group housing, or live on a college campus. An
employee may store his vehicle in his own garage or
driveway, in a garage or lot in a common interest com-
munity, in an unassigned parking space in an apartment
complex, in his neighbor’s garage or driveway, or in
other locations. Although the majority’s determination
that an employee’s place of abode terminates at the
employee’s own property line has the superficial appeal
of a bright line rule, that line is unmoored to the realities
of employees’ varied circumstances.3 The scope of § 31-
275 (1) (A) (i) must be read expansively enough to
accommodate such circumstances to the extent as is
consistent with the purpose of the coming and going
exception. The paramount question is whether the
employee’s commute has commenced. That question is
dependent upon the facts and circumstances of each
case.
The aforementioned factors demonstrate that, under
the circumstances of the present case as recited in the
majority opinion, the commissioner properly concluded
that the plaintiff had not departed from his place of
abode to duty when he bent down by his vehicle to
retrieve his dropped keys, thereby injuring his back. In
making her determination, the commissioner adopted
a construction of the statute that affords logical, consis-
tent treatment of claims without regard to inconsequen-
tial differences in factual circumstances. Under the
commissioner’s construction, the happenstance of the
plaintiff moving his vehicle out of his driveway to
accommodate his son’s departure was immaterial. The
plaintiff’s place of abode extended to the street where
his vehicle was parked. Such a construction sensibly
treats employees similarly irrespective of where they
park their vehicles—in their driveways, on the street,
or in a garage across the street. Similarly, the commis-
sioner’s construction would render immaterial the hap-
penstance of whether the plaintiff had parked with the
driver’s side of his vehicle facing the street or in the
opposite direction abutting his yard.
The commissioner’s conclusion also took into
account the fact that the plaintiff had not entered his
vehicle or even opened the vehicle’s door when he
sustained his injury. As such, the commissioner reason-
ably concluded that the plaintiff’s commute had not
begun when he sustained his back injury, irrespective
of whether his vehicle had remained in his driveway
or was moved to the street in front of his house. At the
evidentiary hearing, the following exchange occurred
during the cross-examination of the plaintiff by the
defendant’s counsel:
‘‘Q. And you had not departed your house at the time
that this incident had occurred, is that correct?
‘‘A. When I felt the pain in my back?
‘‘Q. Right?
‘‘A. Right, I had not left yet.’’
The commissioner found that the plaintiff ‘‘acknowl-
edged that at the time he felt the pain in his back he
had not departed from his home.’’ The plaintiff did not
file a motion to correct that finding.4
As such, the commissioner’s construction also is rea-
sonable because it is consistent with the purpose of
§ 31-275 (1) (A) (i), to exempt police officers’ commutes
from the coming and going rule. The commissioner
reasonably took this purpose into account when she
concluded that the plaintiff’s departure to duty had
not yet commenced. Accordingly, I would affirm the
Workers’ Compensation Review Board’s decision
affirming the commissioner’s decision concluding that
the plaintiff’s back injury is not compensable because
it did not occur in the course of employment.
I respectfully dissent.
1
A plethora of evidence demonstrates that both the statutory and regula-
tory definitions relating to place of abode are intentionally limited in their
application to subparagraph (E) of § 31-275 (1), which, as I explain herein,
is an unrelated provision that applies to all employees. Subparagraphs (A)
through (E) of § 31-275 (1) prescribe the circumstances under which an
injury is compensable. Subparagraph (F) defines terms used in two of those
subparagraphs, one of which provides in relevant part: ‘‘For purposes of
subparagraph (E) of this subdivision, ‘place of abode’ includes . . . .’’ Gen-
eral Statutes § 31-275 (1) (F). Subparagraph (A) was in effect at the time
the legislature added subparagraphs (E) and (F), but we note that the
legislature declined to provide that the definition in § 31-275 (1) (F) applied
‘‘[f]or purposes of subparagraphs (A) and (E) . . . .’’ With respect to the
regulation, the legislature directed the Workers’ Compensation Commission
to adopt regulations implementing the provisions of § 31-275 at the same
time it amended the statute to add subparagraphs (E) and (F). See Public
Acts 1995, No. 95-262, §§ 2, 3. The following year, the commission adopted
the regulation defining an ‘‘ ‘[e]mployee’s place of abode’ . . . .’’ Regs.,
Conn. State Agencies § 31-275-1 (2). Notably, only subparagraph (E) of the
statute uses the regulation’s term ‘‘[e]mployee’s place of abode,’’ whereas
subparagraph (A) (i) refers to an ‘‘individual’s place of abode . . . .’’
(Emphasis added.) Compare General Statutes § 31-275 (1) (E) with General
Statutes § 31-275 (1) (A) (i). Although an employee is an individual, the use
of the different terms appear to be intentional, as the commission could
have simply defined ‘‘place of abode’’ to cover both subparagraphs.
Subparagraph (E) addresses a matter that is not implicated in the present
case, namely, the limited circumstances under which an employee’s injury
sustained during a preliminary act in preparation for work at his place of
abode (i.e., grooming, clearing obstacles blocking the vehicle) is deemed
to occur in the course of employment. See General Statutes § 31-275 (1)
(E) (‘‘[a] personal injury shall not be deemed to arise out of the employment
if the injury is sustained: [i] At the employee’s place of abode, and [ii] while
the employee is engaged in a preliminary act or acts in preparation for work
unless such act or acts are undertaken at the express direction or request of
the employer’’). Nonetheless, even if the statutory and regulatory definitions
were not intended to control § 31-275 (1) (A) (i), it would be reasonable to
construe this provision consistent with those definitions. See State v. Pom-
mer, 110 Conn. App. 608, 616, 955 A.2d 637 (‘‘[t]he rule of construction that
words in a statute must be construed according to their plain and ordinary
meaning [is informed by] the doctrine of [in pari] materia, under which
statutes relating to the same subject matter may be looked to for guidance
in reaching an understanding of the meaning of a statutory term’’ [internal
quotation marks omitted]), cert. denied, 289 Conn. 951, 961 A.2d 418 (2008).
2
Although the regulation defining such acts includes as examples the
‘‘[r]emoval of obstacles from one’s walkway, driveway or yard, including
but not limited to snow, ice, trash cans, recycling containers, or stones, in
order to facilitate entry from one’s residence onto a public thoroughfare’’;
(emphasis added) Regs., Conn. State Agencies § 31-275-1 (1) (e); it is both
logical and consistent with the nonexclusive list of examples that such acts
would necessarily include removal of obstacles impairing entry onto a public
thoroughfare from wherever the vehicle is parked.
3
For similar reasons, dicta in an Appellate Court opinion suggesting that
§ 31-275 (1) (A) prescribes some sort of ‘‘demarcation line’’; Perun v. Dan-
bury, 143 Conn. App. 313, 317, 67 A.3d 1018 (2013); is flawed insofar as it
is construed consistent with the majority’s position in the present case.
4
The scope of the general term ‘‘ ‘in the course of . . . employment’ ’’;
General Statutes § 31-275 (1); is not treated as an issue of statutory construc-
tion subject to plenary review, but as a question of fact subject to a deferential
standard of review. See Daubert v. Naugatuck, 267 Conn. 583, 590, 840 A.2d
1152 (2004). The question of whether the exception to the coming and going
rule in § 31-275 (1) (A) (i) has been satisfied typically is a mixed question
of fact and law. See Diluciano v. State Military Dept., 60 Conn. App. 707,
713, 760 A.2d 1019 (2000) (concluding that issue of whether, as ‘‘ ‘special
policeman’ ’’ deriving his authority from General Statutes § 29-18, plaintiff
is entitled to be considered ‘‘ ‘policeman’ ’’ for purposes of coverage under
§ 31-275 [1] [A] is not pure question of law, but mixed question of law and
fact); see also United Parcel Service, Inc. v. Administrator, Unemployment
Compensation Act, 209 Conn. 381, 386, 551 A.2d 724 (1988) (treating applica-
tion of statutory criteria to facts as mixed question of fact and law). We
apply plenary review to such mixed questions; see Crews v. Crews, 295
Conn. 153, 162, 989 A.2d 1060 (2010); Friezo v. Friezo, 281 Conn. 166, 180,
914 A.2d 533 (2007); but without disturbing unchallenged factual findings.
It would appear, however, that the commissioner’s unchallenged finding
in the present case that the plaintiff had not departed to duty would be a
sufficient basis alone to affirm the decision. Nonetheless, neither the Work-
ers’ Compensation Review Board nor the defendant advanced this theory.
Accordingly, I agree with the majority regarding the plenary standard of
review.