CASE NO. 1292 CRD-3-91-9
COMPENSATION REVIEW BOARD/DIVISION
WORKERS’ COMPENSATION COMMISSION
MARCH 18, 1993
The claimant was represented by Bernard Pellegrino, Esq., and Steven Bellis, Esq., both of the Pellegrino Law Firm, P.C., P.O. Box 1835, 475 Whitney Avenue, New Haven, CT 06508-1835.
The respondent was represented by Jason Dodge, Esq., Margaret Corrigan, Esq., and Lucas Strunk, Esq., all of Pomeranz, Drayton and Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.
This Petition for Review from the September 3, 1991 Finding and Award of the Commissioner at Large acting for the Third District was heard August 7, 1992 before a Compensation Review Board panel consisting of the Chairman, Jesse Frankl and Commissioners James Metro and Roberta D’Oyen.
JESSE FRANKL, CHAIRMAN. The claimant appeared before the Commissioner at Large acting for the Third District seeking Workers’ Compensation benefits as a result of a fall on the stairs of an establishment known as Naples Pizza. At the time of her fall, the claimant was employed as a technical assistant by the respondent employer. On June 11, 1990 the claimant left the employer’s premises during a paid coffee break in order to obtain coffee at the adjacent restaurant, Naples Pizza. The claimant sustained an injury as a result of her fall and thereafter sought compensation benefits.
The trial commissioner held a hearing pursuant to the instant claim and the following facts were either found by the trial commissioner or were part of a stipulation of facts agreed to by the parties. The claimant regularly obtained coffee at Naples Pizza during her coffee break and that activity was acquiesced to by her employer. The claimant was free to go whenever she chose to obtain coffee. Further Naples Pizza was owned by Yale University, although Yale did not control or possess the stairs where claimant fell.
The trial commissioner in his September 3, 1991 Finding and Award concluded that the claimant’s injury arose out of and in the course of her employment. The respondent petitioned for review and the only issue presented for review is whether the trial commissioner erred in finding that the claimant was within her scope of employment and thus, whether her injury arose out of and in the course of her employment.
The trial commissioner concluded:
“The claimant’s injury occurred on a paid coffee break of short duration, adjacent to the respondent’s premises and was an activity regularly practiced by the claimant with the knowledge and acquiescence of the employer and, therefore, constitutes an activity which ministers to the claimant’s personal comfort and does not constitute a personal errand, thereby effectively leaving the claimant within the scope of her employment with no interruption of the employer’s control such that the claimant’s injury would be considered to have occurred in the course of and arisen out of her employment with the respondent.”
The respondent did not file a Motion to Correct and therefore, the facts must stand. Mack v. Blake Drug, 152 Conn. 523 (1965). We are left to determine whether the trial commissioner misapplied the law. It has long been held that in order for an injury to come within the course of the employment, an 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.” McNamara v. Hamden, 176 Conn. 547, 550-51 (1979) citing Stakonis v. United Advertising Corp., 110 Conn. 384, 389 (1929). It has also been held under our law that acts relating to the personal comfort of an employee come within the scope of employment.
“Acts of ministration by a servant to himself, such as quenching his thirst, relieving his hunger, protecting himself from excessive cold, performance of which while at work are reasonably necessary to his health and comfort, are incidents to his employment and acts of service therein within the Workers’ Compensation Acts, though they are only indirectly conducive to the purpose of the employment. Consequently no break in the employment is caused by the mere fact that the workman is ministering to his personal comforts, or necessities, as by warming himself, or seeking shelter, or by leaving his work to relieve nature, or to procure drink, refreshments, food, or fresh air, or to rest in the shade.” 1 Honnold on Workmen’s Compensation (1917) p. 381.
Lovallo v. American Brass Co., 112 Conn. 635, 639 (1931) (citations omitted). See also, DeLuca v. Park Commissioners, 94 Conn. 7 (1919).
The instant matter presents an interesting dilemma as it is an injury which was sustained off the employer’s premises. As has been noted by our courts, in order for an injury to be compensable “[t]here must be a conjunction of the two requirements,” in the course of the employment” and “out of the employment”... The former relates to the time, place and circumstances of the accident, while the latter refers to the origin and cause of the accident.” Stakonis v. United Advertising Corp., 110 Conn. 384, 389 (1930).
The Stakonis court, also noted, “If an employee is obeying specific instructions of the employer, though outside the sphere of his original employment, he is still in the course of his employment. Not only so, but if he is doing something entirely outside his obligatory duty which he is merely permitted by his employer to do, but without specific instructions, for their mutual convenience, he is still within the course of his employment. Mann v. Glastonbury Knitting Co., 90 Conn. 216 (1916).” Stakonis, supra at 389-90.
In the instant matter, the trial commissioner merely found that the employer was acquiescent to the practice of employees getting coffee at Naples Pizza. There was no evidence that the respondent’s employees were required to get their coffee at Naples Pizza. Thus, while the claimant was arguably in the course of her employment by virtue of the fact that she was on a paid coffee break, we must next determine under the Stakonis test reiterated in McNamara, whether the employee (claimant) was reasonably fulfilling the duties of the employment or doing something incidental to it. McNamara, supra at 550-51.
We have attempted to review the decisions of our courts which involve injuries off the employer’s premises. Many are “going and coming” cases and involve transportation related injuries and thus, are not directly on point. See e.g., Dombach v. Olkon Corp., 163 Conn. 216 (1972); Taylor v. M. A. Gammino Construction Co., 127 Conn. 528 (1941), Stakonis v. United Advertising Corp., 110 Conn. 384 (1930). The instant matter presents the more novel question involving an issue described by our Supreme Court and the trial commissioner below as an issue of “personal comfort.” See McNamara, supra at 552 citing Puffin v. General Electric Co., 132 Conn. 279 (1945); Lovallo v. American Brass Co., 112 Conn. 635 (1931). Here we are asked to consider the application of our Workers’ Compensation Act to an injury occurring off the employer’s premises while the claimant was, arguably, attending to her personal comfort.
Our review of some of the cases decided by our Supreme Court reflects diverging views. In a very early case in the annals of Connecticut Workers’ Compensation Act jurisprudence, Mann v. Glastonbury Knitting Co., 90 Conn. 116 (1916) our Supreme Court held that a worker who injured his hand while attempting to heat a bottle was not entitled to compensation. The facts in Mann indicated that the employer acquiesced to the employees’ practice of heating bottles of tea or coffee at the mouth of a heating pipe in a room of the employer’s facility. On the day of the injury, the claimant deviated from the presumably accepted practice and attempted to warm his bottle in another spot near the heating pipe but in another room. The claimant was unaware of the location of a fan in his selected warming site, and when the fan hit the bottle, the claimant injured his hand. The court held that the claimant’s deviation from the accepted practice of heating bottles removed the injury from the scope of claimant’s employment.
In Vitas v. Grace Hospital Society, 107 Conn. 512 (1928) our Supreme Court held that a laundress injured as a result of attempting to disentangle a curtain from a flat work ironing machine was not entitled to compensation. The court noted that while the claimant lived on the employer’s premises the curtain which she was attempting to iron was one that the claimant intended to hang in her room. The claimant’s injury occurred during the noon rest period. The court considered that the curtains were for the claimant’s personal use and although the employer gave employees permission to do their laundry on Fridays, the injury occurred an a Thursday. The court noted that the practice of using the ironing machine for personal items on days when the machine was to be kept hot during the noon hour was a “practice not objected to by the employer.” Id. At 514. However, the court noted that while the injury occurred within the employment period at a place where the claimant might reasonably be, it did not result from a risk “arising out of the employment or the condition under which it was carried on.” Id. at 516. Specifically, the court noted that the employer did not have either actual or constructive knowledge of the practice of the employees to attend to personal laundry during the noon hour while the machine was hot. Therefore the court denied compensation benefits.
In Lovallo v. American Brass Co., 112 Conn. 635 (1931) the court held the death of an employee due to the igniting of his clothes caused by an errant spark from a match used to light his pipe arose out of the decedent’s employment. Although the accident occurred during the decedent’s lunch hour, the grease and oil which soiled the claimant’s clothes was found to have increased the inflammability of his clothing. Further the court noted that smoking was not prohibited and that the lunch period was granted to the decedent in light of the employer’s request that the decedent work overtime. Specifically the court noted that “[w]hile smoking was not... one of the obligatory duties of his employment, it was... something which the respondent permitted... For the convenience of the well and to keep them in good spirits for their overtime work.” [P]ermission to smoke was thus for the mutual advantage of the employer and the employee. It was incidental to the deceased’s employment, and a term or condition added to the contract of employment by the tacit consent of the respondent.” Id. At 638-39. Additionally the court found, “[T]he risk arose from the inflammable character of the clothing resulting from the conditions of the employment.” Id. At 641. See also, Puffin v. General Electric Co., 132 Conn. 279 (1945).
All of the aforementioned involved issues which related personal comfort and which occurred on the employer’s premises. In those cases involving personal comfort issues occurring off premises, our review indicates that our courts have been much more reluctant to award compensation. In Guillano v. O’Connell’s Sons, 105 Conn. 695 (1927) the court refused compensation to a worker injured in a barn fire which occurred while the worker was sleeping. The court noted that the use of the barn for sleeping while permitted by the employer was not incidental to the employment. The court distinguished Guiliano, from Harivel v. Hall-Thompson Co., 98 Conn. 753 (1923). In Harivel, a traveling salesman was injured in an out of state hotel fire. The court found that claimant’s employment required him to lodge in a hotel and that, “[t]he salesman’s risk from fire in hotels... Is much greater than the casual lodger, and one which both the employer and employee might have anticipated.” Id. At 758.
In order to keep our analysis consistent with the facts of the instant matter, we have tried to confine our discussion to issues of personal comfort. However, we think that Ruckgaber v. Clark, 131 Conn. 341 (1944) is worthy of mention. In Ruckgaber, the claimant and her husband were domestics. Their designated day off was Thursday, and on one particular day off they visited friends where the claimant inadvertently left her eyeglasses. The next day the claimant complained to her employer that she had forgotten her glasses and she was having difficulty doing close work. The employer directed the claimant to retrieve her glasses after dinner. The claimant followed instructions and returned to her friend’s house. She retrieved her glasses and while returning to the car tripped and fell.
The Ruckgaber court held, “The plaintiff’s injury occurred not only within the hours of... employment, and it happened at a place where she could reasonably have been since she was there pursuant to the defendant’s express instructions. (Emphasis ours). Id. At 343.
Our review of the instant case indicates that injuries involving issues of personal comfort and which occur off the employer’s premises require a stricter scrutiny as to whether the third prong of the Stakonis test requiring that the injury occur “while the employee is reasonably fulfilling the duties of the employment or doing something incidental to it.” Stakonis, supra at 389.
Nothing in the conclusion of the trial commissioner indicates whether the third and final prong of the Stakonis test was satisfied. Further as our Supreme Court noted in Guiliano, supra at 709, “The creation of a liability upon employers upon their granting optional privileges to their employees such as in this case, would, we fear, have the unfortunate effect of deterring employers from granting any privilege to their employees.”
Finally, we wish to assure those that may be concerned that we have lost sight of our Supreme Court’s proscription in Fair v. People’s Savings Bank, 207 Conn. 535 (1988) against disturbing the conclusions of a trial commissioner insofar as they are dependent upon the factual determinations relevant to whether an injury arose out of the employment. We are indeed aware of the Fair court’s reiteration of the principle that: “'[T]he power and duty of determining the facts rests on the commissioner, the trier of facts. Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 457 (1951). The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Mathurin v. Putnam, 136 Conn. 361, 366 (1950)’. Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979).” Additionally, the Fair court noted that the conclusion of the trial commissioner must be supported by the evidence. Fair, supra at 539. However, in the instant matter it appears that the only evidence proffered before the trial commissioner was the parties’ factual stipulation. (Joint Exhibit 1). One can hardly argue that we have tampered with the factual findings of the trial commissioner when, in essence, the trial commissioner made no factual findings.
We therefore reverse the September 3, 1991 Finding and Award of the Commissioner at Large acting for the Third District and dismiss the claimant’s claim.
Commissioners James Metro and Roberta D’Oyen concur.