Moffett v. Tighe Williams Salon

The claimant was represented by Michael L. Tierney, Esq., Cotter, Cotter & Sohan, P.O. Box 5660, Bayview Station, Bridgeport, CT 06610.

The respondent-employer was represented by Neal L. Moskow, Esq., Kleban & Samor, P.O. Box 763, Southport, CT 06490 who did not appear or file a brief.

The Second Injury Fund was represented by Michael J. Belzer, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the August 13, 1992 Finding and Denial of the Commissioner At Large acting for the Fourth District was heard April 30, 1993 before a Compensation Review Board panel consisting of Commissioners Frank J. Verrilli, James J. Metro and Angelo L. dos Santos.

OPINION

ANGELO L. dos SANTOS, COMMISSIONER. The claimant appeals from the denial of her claim after the trial commissioner concluded that her injury did not arise in the course of her employment. On appeal, the claimant contends that the trial commissioner improperly (1) denied her Motion to Correct and (2) concluded that her injury did not arise in the course of her employment. We affirm the trial commissioner.

The trial commissioner found that the claimant, after parking her car on a public street and crossing the parking lot which served the office and commercial complex where her employer’s business was located but which was not available for employee use, slipped and fell on ice as she stepped from the parking lot up onto the curb in front of the door leading to the employer’s leased premises. The commissioner further found that the curb where the injury occurred was neither owned, leased or controlled by the respondent-employer and was at the end of a sidewalk which provided public access to the parking lot and other areas of the complex.

The claimant sought to correct the commissioner’s findings to reflect that the injury occurred “[a]s she went to go in the door to the salon” and to reflect that the curb where the injury occurred was used only by persons entering the respondent-employer’s business. The claimant’s challenge to the commissioner’s refusal to make these corrections is unavailing since the commissioner’s findings are supported by the evidence. See Transcript of March 20, 1992, pp. 17, 40; Claimant’s Exhibit H. Equally unavailing is the claimant’s challenge to the commissioner’s failure to make other requested corrections and additions to his findings. A trier’s findings will not be changed if the requested correction would not alter the legal conclusion. Hill v. Pitney Bowes, Inc., 8 Conn. Workers’ Comp. Rev. Op. 98, 832 CRD-7-89-3 (1990).

The claimant next challenges the commissioner’s conclusion that her injury did not arise in the course of her employment. The claimant argues that, under the cases interpreting our Workers’ Compensation Act, her injury on the curb in front of the entrance to the respondent-employer’s business while she was going to work constituted a reasonable extension of the business premises for purposes of the application of the Act. While our caselaw recognizes that “[e]mployment may exist before actual work begins or continue after actual work has ceased . . ., [including] the going to or departure from the work”; (citations omitted.) Hughes v. American Brass Co., 141 Conn. 231, 234 (1954); we do not believe compensability is permitted under the facts of this case.

Clearly, injuries which occur on the employer’s property, even though not during the time when or in the place where the employee’s work is normally performed, may be compensable. See McNamara v. Hamden, 176 Conn. 547 (179) (injury in municipal building shortly before start of work day); Hughes v. American Brass Co., 141 Conn. 231 (1954) (injury in employer’s parking lot); see also Polizzi v. Town of Orange, 7 Conn. Workers’ Comp. Rev. Op. 56, 675 CRD-3-87 (1989) (injury on steps of municipal building); Chavarriaga v. Pathmark, 5 Conn. Workers’ Comp. Rev. Op. 16, 363 CRD-7-84 (1988) (injury in parking area leased by employer). The injury here, however, occurred on property which was neither owned, leased or controlled by the respondent-employer.

Injuries which occur off of an employer’s property while an employee is coming to or going from work may nonetheless be compensable under certain circumstances. In such cases, however, the injury must “result [ ] from some peculiar danger involved in the course taken or means used by [the injured worker] in coming to or going from work [and] it must appear that such danger was a risk annexed to the employment by the employer’s contemplating and acquiescing in the use thereof by the employee.” Drouin v. Chelsea Silk Co., 122 Conn. 129, 133-34 (1936). Under this line of cases, special hazards which lie on the only route, or at least the normal route, which employees traverse to work are considered to be hazards of the employment. 1 A. Larson, Workmen’s Compensation Law Sec. 15.13, pp. 4-29 through 4-56. Typical of such hazards are railroad tracks which an employee must cross to get to work. See, e.g., Corvi v. Stiles & Reynolds Brick Co., 103 Conn. 449 (I925); Procaccino v. Horton & Sons, 95 Conn. 408 (1920). While the special hazard exception has been applied to special hazards of a non-railroad character; see 1 A. Larson, supra, p. 4-37 n. 28 and accompanying text; “it was never the intention behind this exception to mark out an off-premises area, merely because it is a normal access route, and then invest it with all the characteristics of the premises for course of employment purposes.” Id., p. 4-37 to 4-38.1

Thus, in Flodin v. Henry & Wright Mfg. Co., 131 Conn. 244 (1944), our Supreme Court concluded that an injury sustained by an employee when he slipped and fell on the icy sidewalk in front of his employer’s factory was not compensable notwithstanding the fact that employees had to use that sidewalk to enter the factory and such use was contemplated by the employer. In Flodin, as here, the sidewalk where the injury occurred was “part of the public way which provided access to the [employer’s] premises as well as other parts of the [office] complex.” Finding and Denial, paragraph 17E. As such, no special hazard was present; “[t]he risk was not peculiar to the employment nor was it annexed thereto.” Flodin v. Henry & Wright Mfg. Co., supra, 248; see also Kuharsky v. Bristol Brass Corporation, 132 Conn. 563, 567 (1946) (“The Flodin case was the ordinary one of a work[er] approaching the premises of [the] employer but who had not reached them and was still on the public highway”).

Injuries like those present here, occurring near or in front of an employer’s premises which are not connected to the employment by application of the special hazard doctrine, or some other theory not applicable here, do not arise out of and in the course of employment for purposes of compensability under our Workers' Compensation Act. Accordingly, the trial commissioner properly denied the claim for compensation.

We, therefore, affirm the trial commissioner and deny the appeal.

Commissioners Frank J. Verrilli and James J. Metro concur.

1 We expressly do not agree with the following contention of the Second Injury Fund, contained in its brief: “Almost every major error that can be observed in the development of compensation law in Connecticut can be traced to the importation of Professor Larson as an ad hoc legislative body.” Not only has our Supreme Court referred to Professor Larson as an expert in the field of workers’ compensation law; McNamara v. Hamden, 176 Conn. 547, 554-55 (1979); but the nearly 200 heavily annotated pages in Professor Larson’s treatise devoted to the topic of injuries occurring while an employee is going to and from work provide a comprehensive and critical review of the development of this complex, and not always consistent, area of the law in Connecticut and throughout the nation. BACK TO TEXT