Michael Daubert v. Borough of Naugatuck et al.

The sole issue in this certified appeal is
whether there was a reasonable basis in the facts found
for the workers' compensation commissioner to have
determined that the plaintiff had not met his burden of
proving that he was injured during the course of his
employment. The defendants, the borough of Naugatuck
and its insurer, the Hartford Insurance Group,
appeal, following our grant of certification, from the
judgment of the Appellate Court reversing the decision
of the compensation review board (board) in their
favor. The defendants claim that the Appellate Court
improperly determined that the workers' compensation
commissioner for the fifth district (commissioner) was
compelled to draw the inference that the plaintiff police
officer, Michael Daubert, was injured during the course
of his employment, once the commissioner had determined
that the plaintiff was on duty and driving his
police vehicle in Naugatuck at the time he collided
with a tree, and that the board improperly affirmed the
commissioner's decision. See Daubert v. Naugatuck,
71 Conn. App. 600, 601, 803 A.2d 343 (2002). We agree
with the defendants and, accordingly, we reverse the
judgment of the Appellate Court.

The plaintiff filed a claim for workers' compensation
benefits and the defendants denied compensability.

After an extended hearing, the commissioner dismissed
the claim, finding that the plaintiff had not established
compensability. The plaintiff appealed to the board,
which affirmed the commissioner's decision. The plaintiff
then appealed to the Appellate Court, which
reversed the decision of the board and remanded the
case to the board with direction to reverse the decision
of the commissioner. Id., 613. This certified appeal
followed.1

Certain facts, which are undisputed by the parties,
are as follows. At approximately 1:46 a.m., on January
26, 1997, the plaintiff was an employee of the Naugatuck
police department, and was on duty in his cruiser when
he was involved in a motor vehicle accident in which
his cruiser struck a tree. All of the other facts, however,
were disputed by the parties. The plaintiff claimed
before the commissioner that, while he was searching
for a reported reckless driver, his cruiser had struck
the tree when he failed to negotiate a sharp curve in
the road. The plaintiff also claimed that, as a result of
the impact, he had sustained various injuries, including
loss of consciousness. The defendants denied that the
collision with the tree had occurred as the plaintiff
claimed because his assertions were inconsistent with
the evidence. Thus, the plaintiff sought a finding that
his injuries arose out of and in the course of his employ-
ment and that his claim was compensable under the
Workers' Compensation Act (act). General Statutes
§ 31-275 et seq. The defendants sought a finding that
the plaintiff had not sustained his burden of proof that
the collision occurred as he had alleged and that, therefore,
his claim should be dismissed. From the commissioner's
point of view, therefore, the issue was
‘‘[w]hether the [plaintiff's] accident occurred as alleged
by the [plaintiff] thereby resulting in a compensable
claim pursuant to the [act].''

The commissioner held fourteen hearings over the
course of two years, received testimony from numerous
witnesses for both sides, and viewed dozens of exhibits,
including a videotaped narration by the plaintiff of the
events that immediately preceded the collision. The
plaintiff testified and introduced evidence and expert
witness testimony in support of his claim that his injuries
were compensable. The defendants presented their
own witnesses and evidence, including expert witness
testimony, which disputed the plaintiff's rendition of
how the collision had occurred, what had happened in
the collision's aftermath, and the nature of the plaintiff's
alleged injuries.

The commissioner dismissed the plaintiff's claim for
benefits on the ground that the plaintiff had not met
his burden of proving that the collision occurred as
he had alleged. This determination was based on the
commissioner's specific findings of fact, which can be
summarized as follows: (1) on January 26, 1997, at
approximately 1:46 a.m., the plaintiff, while on duty as
a sergeant for the Naugatuck police department, was
involved in a motor vehicle accident wherein his police
cruiser struck a tree; (2) the plaintiff's explanation that
he was traveling forty-five to fifty miles per hour and
‘‘spotlighting'' streets prior to the accident was not credible;
(3) the plaintiff's testimony that he was rendered
unconscious by the collision was not persuasive; (4)
the testimony of the defendants' witnesses regarding
the skid marks left at the scene was credible, and the
testimony of the paramedic attending the plaintiff following
his collision that the plaintiff was in fact conscious
was ‘‘very persuasive''; (5) the testimony of the
defendants' medical expert that the plaintiff was not
rendered unconscious by the impact was more credible
than the testimony of the plaintiff's medical expert to
the contrary; (6) the collision reconstruction testimony
of the defendants' witness was more credible than the
reconstruction testimony of the plaintiff's witness; and
(7) based on the discrepancies in the plaintiff's testimony
and the credibility of the other witnesses, the
plaintiff ‘‘[was] found to be not credible.'' In sum, the
commissioner found that, although the plaintiff was on
duty in his cruiser when his cruiser struck a tree, he
had not proven: (1) that the collision with the tree had
occurred as a result of his failure to negotiate a curve
while looking for a reported reckless driver; and (2) that
he had been rendered unconscious as he had alleged.

The board affirmed the commissioner's determination,
on the ground that the plaintiff had not proven,
as he was required to do, that the collision giving rise
to his injuries took place while he was reasonably fulfilling
the duties of his employment or doing something
incidental to it. Specifically, the board stated that
‘‘where a [plaintiff] contends that an accident occurred
in a specific manner, and the trial commissioner finds
the [plaintiff's] explanation to lack credibility, we cannot
say that the trial commissioner must find the accident
to be compensable merely because it occurred
while the [plaintiff] was on duty. Certainly, in the instant
case it is unclear whether the [plaintiff] met the third
requirement of [the] ‘in the course of' the employment
provision, specifically we do not know whether the
accident occurred while he was reasonably fulfilling
the duties of the employment or doing something incidental
to it.'' (Emphasis in original.) Thus, the board
noted that the commissioner ‘‘did not find the [plaintiff's]
testimony to be credible regarding how the accident
occurred. As the [plaintiff] did not sustain his
burden of proving a compensable injury, it is neither
incumbent upon the [defendants], nor upon the trial
commissioner, to disprove the compensability of the
accident.''

The Appellate Court disagreed. That court reasoned
that the commissioner's finding that the plaintiff was
on duty as a police officer while he was driving in his
police cruiser and hit the tree, mandated the additional
finding that he was injured ‘‘while he was reasonably
fulfilling the duties of his employment,'' and that the
commissioner's determination ‘‘that the plaintiff had
not met his burden of proving that the accident occurred
as he had alleged was not a reasonable inference to be
drawn from the subordinate facts.'' Daubert v. Naugatuck,
supra, 71 Conn. App. 610.

On appeal to this court, the defendants claim that
the Appellate Court improperly determined that the
commissioner's finding that the plaintiff was on duty
and in his police cruiser when the collision occurred
mandated the additional finding that the injuries
occurred while he was reasonably fulfilling the duties
of his employment or doing something incidental to it.

We agree with the defendants.

‘‘It is well settled that, because the purpose of the
act is to compensate employees for injuries without
fault by imposing a form of strict liability on employers,
to recover for an injury under the act a plaintiff must
prove that the injury is causally connected to the
employment. To establish a causal connection, a plaintiff
must demonstrate that the claimed injury (1) arose
out of the employment, and (2) in the course of the
employment.'' (Internal quotation marks omitted.)
Spatafore v. Yale University, 239 Conn. 408, 417–18,
684 A.2d 1155 (1996). ‘‘Proof that [an] injury arose out
of the employment relates to the time, place and circumstances
of the injury. . . . Proof that [an] injury
occurred in the course of the employment means that
the injury must occur (a) within the period of the
employment; (b) at a place the employee may reasonably
be; and (c) while the employee is reasonably fulfilling
the duties of the employment or doing something
incidental to it.'' (Citation omitted; emphasis added;
internal quotation marks omitted.) Id., 418.

It is useful to note what is not at issue in this case.
Not at issue is that the plaintiff proved that his claimed
injuries ‘‘arose out of [his] employment''; id., 417; and
that he proved the first two of the three prongs of the
requirement that the injuries occurred ‘‘in the course
of [his] employment''; id.; because these elements relate
to the time, place and circumstances of the injury, and
to whether the injury occurred ‘‘within the period of
the employment . . . [and] at a place the employee
may reasonably be . . . .'' (Internal quotation marks
omitted.) Id., 418. The defendants do not dispute any
of these elements, and the finding that the plaintiff
was on duty in his cruiser when the collision occurred
satisfies those elements. Also not at issue is whether
the plaintiff intentionally drove his cruiser into the tree.

The defendants did not claim that to be the case, and
they specifically disavowed any such claim in oral argument
before this court.2

What is at issue in this case is whether the plaintiff
failed to prove the third prong of the ‘‘in the course of
the employment'' inquiry; id., 417–18; namely, that he
was reasonably fulfilling the duties of his employment
or doing something incidental to his employment when
he collided with the tree. ‘‘The determination of whether
an injury arose . . . in the course of employment is a
question of fact for the commissioner.'' Id., 418. ‘‘[I]n
determining whether a particular injury arose out of
and in the course of employment, the [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 . . . . If supported
by evidence and not inconsistent with the law, the [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 [commissioner] is factually questionable.'' (Internal
quotation marks omitted.) Fair v. People's Savings
Bank, 207 Conn. 535, 539–40, 542 A.2d 1118 (1988).
We conclude that the commissioner's finding, that
the plaintiff did not prove that his injuries had occurred
while he was reasonably fulfilling the duties of his
employment or doing something incidental to it, must
stand. As the board noted, there may be instances when,
without specific evidence, a commissioner may infer
from all of the circumstances that an injury occurred
in the course of employment. When, however, as in
the present case, the plaintiff specifically claims and
introduces evidence in support of his burden of proof
that an injury occurred in a specific way, and the commissioner
specifically finds that evidence not credible,
and when there is no other credible evidence to require
a different compensable factual scenario, the commissioner's
finding that the plaintiff failed to meet his burden
of proof that the injuries had occurred during the
course of his employment cannot be overturned. To
conclude otherwise would, in such a situation, shift the
burden of proof to the defendants. Thus, we simply
disagree with the Appellate Court and the plaintiff that,
under the circumstances of the present case, the commissioner's
finding that the plaintiff was on duty in
his cruiser when the cruiser hit the tree mandated the
additional finding that he was acting in the course of
his employment when he hit the tree.

The question of whether a plaintiff's injuries resulted
from an incident that occurred in the course of his
employment is a separate and distinct question from
whether his alleged injuries arose out of his employment.
Kolomiets v. Syncor International Corp., 252
Conn. 261, 266, 746 A.2d 743 (2000). The commissioner's
finding that the collision arose out of the plaintiff's
employment did not, in the circumstances of the present
case, give rise to a mandatory inference that the collision
occurred while the plaintiff was performing workrelated
duties and, therefore, that the collision occurred
in the course of his employment.

The plaintiff argues, however, that if we uphold the
decisions of the commissioner and the board, we will
have assigned to the plaintiff the burden of disproving
the defendants' evidence that he deliberately collided
with the tree and that this shifting of the burden of
proof would be in derogation of his due process rights.
We disagree. As we have noted, the defendants do not
claim that the plaintiff intentionally caused the collision.
In this connection, we agree with the board that
the plaintiff's failure to prove that the collision occurred
as he claimed and testified simply left the issue of what
he was doing when his cruiser collided with the tree
unproven, or, as the board put it, ‘‘shrouded in mystery.''

Thus, our disposition of this appeal does not shift the
burden of proof to the plaintiff. To the contrary, it
leaves that burden precisely where the law puts it, on
the plaintiff.

The plaintiff also claims that, if we were to reverse
the Appellate Court's judgment, it would violate his
right to procedural due process of law because it would,
in effect, mandate a finding that he deliberately collided
with the tree, and such a finding would be impermissible
because the defendants did not plead wilful misconduct
as an affirmative defense. We reject this claim for the
same reasons that we rejected the plaintiff's claim
regarding a purported shift in the burden of proof.