CASE NO. 2011 CRB-3-94-4
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
SEPTEMBER 14, 1995
The claimant was represented by Gerald P. Dwyer, Esq., 2 Whitney Ave., P. O. Box 1975, New Haven, CT 06521.
The respondents were represented by John M. Letizia, Esq., Byrne & Letizia, Woodbridge Corporate Park, 1764 Litchfield Tpke., Suite 106, Woodbridge, CT 06525.
This Petition for Review from the March 30, 1994 Finding and Dismissal of the Commissioner acting for the Third District was heard February 24, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. D’Oyen and Amado J. Vargas.
JESSE M. FRANKL, CHAIRMAN. The respondent has petitioned for review from the March 30, 1994 Finding and Award of the Commissioner for the Third District. On appeal, it argues that the commissioner improperly ruled that the claimant’s injury arose out of and in the course of her employment with Yale University. We reverse the trial commissioner’s decision.
The commissioner found the following facts. The claimant, a Yale University employee, served as the collective bargaining representative for the clerical and technical employees of the university. Union staff members who were representatives could not engage in union activity during work hours under the applicable collective bargaining agreement. The same agreement allowed the union to make reasonable use of Yale facilities for meetings. On August 24, 1992, the claimant attended a union meeting with other union representatives during her noon lunch break. The meeting was held in a Yale University building. On her way back from the meeting to the building in which she worked, the claimant tripped on a crack in the sidewalk and injured her left upper extremity. The route she took was a direct route between the two buildings.
The commissioner found that the claimant’s attendance at the union meeting was for the mutual benefit of the employer and the employees, and concluded that her coming and going to and from the meeting was part of her employment or an activity incidental to it. He therefore adjudged the injury compensable, entitling the claimant to benefits under the Workers’ Compensation Act. The respondent appealed, and filed a Motion to Correct on April 26, 1994. Neither this motion nor the claimant’s objection to it were ruled on by the trial commissioner. Rather, he issued a ruling on May 2, 1994 withdrawing the Finding and Award and ordering that further evidentiary hearings be scheduled on the issue of compensability.
The first issues we must address on appeal are the Motion to Correct and the commissioner’s attempted withdrawal of the Finding and Award. The respondent sought corrections to several paragraphs of the award, stressing the off-premises location of the injury, the voluntary nature of the union meeting, and the lack of a benefit to Yale University in the claimant’s attendance there. They also sought to change the ultimate conclusion that the injury was compensable. The claimant objected to most of the corrections. The commissioner responded by withdrawing the Finding and Award for further evidentiary hearings relating to ownership of the facilities, the relationship between the union and Yale University, and the relationship between the university and the hospital. The respondents object on appeal to this unrequested withdrawal.
Once a petition for review is filed with the Compensation Review Board pursuant to § 31-301 C.G.S., the CRB has jurisdiction over the appeal. During the appeal, this board has the power to admit additional evidence if justified. See Admin. Reg. § 31-301-9. Trial commissioners are often requested to make changes to their findings via a Motion to Correct, as was done in this case by the respondent. The granting of a Motion to Correct acts as an amendment of a Finding and Award. See Admin. Reg. § 31-301-4.1
There have been instances where this board has dismissed appeals because a trial commissioner has vacated the order or award underlying the appeal. Hutchinson v. C. Cowles & Co., 12 Conn. Workers’ Comp. Rev. Op. 387, 1934 CRB-3-93-12 (Aug. 29, 1994); Discuillo v. Stone & Webster, 12 Conn. Workers’ Comp. Rev. Op. 1, 1366 CRD-2-91-12 (Jan. 4, 1994). In both of those cases, however, a party had requested additional proceedings before the trial commissioner. Also, the circumstances surrounding those cases warranted vacating the underlying decisions.
Here, the trial commissioner appears to have withdrawn his decision as an alternative to ruling on a Motion to Correct, without a request by either party to take such action. We do not think that such an order was permissible. Once the commissioner’s award was appealed, it was not appropriate for him to reconsider the factual findings on his own terms. The only decision facing him with respect to those findings was whether to grant all or part of the Motion to Correct.2 A sua sponte withdrawal of the Finding and Award in order to hear further evidence was inappropriate, as the trial commissioner no longer had jurisdiction over the determination of the issues appealed. Absent the type of irregularity that would invalidate his or her decision as a whole, a trial commissioner should not attempt to rescind an award once it has been appealed to the CRB. See Hutchinson, supra (trial commissioner disqualified herself after award issued).
The Motion to Correct, not having been expressly ruled on by the trial commissioner, will be deemed denied for the purpose of this appeal. Compare Alger v. Rossi Corporation, 9 Conn. Workers’ Comp. Rev. Op. 261, 1065 CRD-1-90-6 (Dec. 5, 1991) (parties agreed that motion to correct would be deemed denied); see also Schick v. Windsor Airmotive Division/Barnes Group, Inc., 34 Conn. App. 673 (1994) (Appellate Court held that CRB had discretion to decide whether case should be remanded for failure to rule on Motion to Correct by now-retired commissioner). Although the respondent had a right to receive a ruling on the Motion to Correct, we conclude that such a ruling would make no difference in this case. As we now discuss, even taking the facts as originally found by the trial commissioner, we do not think that the claimant here suffered a compensable injury.
A compensable injury is one that arises out of and in the course of an employee’s employment. Section 31-284 C.G.S. “In order 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). “An injury is said to arise out of the employment when (a) it occurs in the course of the employment and (b) is the result of a risk involved in the employment or incident to it or the conditions under which it is required to be performed.” Tovish v. Gerber Electronics, 32 Conn. App. 595, 607 (1993), affirmed, 229 Conn. 587 (1994), quoting Dombach v. Olkon Corporation, 163 Conn. 216, 221-22 (1972). Whether or not an injury meets these criteria is a factual question for the trial commissioner. Tovish, supra, 605.
Here, the commissioner found that the claimant was on her lunch break when she attended a union meeting. Attendance at such a meeting was forbidden during working time under the collective bargaining agreement, which also provided that the union could make “reasonable use” of Yale facilities for meetings. There is no dispute that the injury itself occurred in front of a building that was owned by Yale-New Haven Hospital rather than the university. See Claimant’s Objection to Respondents’ Motion to Correct. We do not think that these findings support the conclusion that the claimant’s injury was compensable. See Webb v. Pfizer, Inc., 1859 CRB-5-93-9 (decided May 12, 1995).
First, there is no evidence to support the commissioner’s legal conclusion that the claimant’s attendance at the union meeting was for the mutual benefit of Yale University and the claimant. See Transcript, p. 27-30. Unlike the situation in New England Telephone Co. v. Ames, 474 A.2d 571 (N.H. 1984), where the defendant union representative was present at a negotiating session between the union and her employer, and was being paid for her time, there is no indication in the record here that the employer was involved in any way with the union meeting on September 25, 1991. In fact, the claimant was not being paid at the time, as she was attending the meeting during her lunch break. The collective bargaining agreement contemplated that such meetings could not occur during work hours.
Although Connecticut courts have not addressed this exact factual circumstance, other courts have contemplated that union meetings are not necessarily for the benefit of an employer, see Ames, supra, 574, and that the principles of the National Labor Relations Act contradict the notion that union activities are within the scope of employment. Pacific Indemnity Co. v. Industrial Accident Commission, 81 P.2d 572, 575 (D.C. App. Cal. 1938). We agree with those rationales, and hold that independent evidence of a benefit to the employer regarding union activity must be shown before a trial commissioner may conclude that such activity benefits an employer.
Second, injuries which occur off an employer’s property during an unpaid lunch break are not normally compensable. See Kaplan v. State of Connecticut/Department of Health Services, 2012 CRB-1-94-4 (decided Sept. 11, 1995). Such cases fall within the penumbra of the “coming and going” cases such as Dombach, supra, or the “personal comfort” cases such as Renckowski v. Yale University, 11 Conn. Workers’ Comp. Rev. Op. 48, 1292 CRD-3-91-9 (March 18, 1993). See Kaplan, supra. In Moffett v. Tighe Williams Salon, 12 Conn. Workers’ Comp. Rev. Op. 83, 1489 CRB-4-92-8 (Feb. 9, 1994), a “coming and going” case, this board noted that off-premises injuries are compensable only when they 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.” Id., 85, quoting Drouin v. Chelsea Silk Co., 122 Conn. 129, 133-34 (1936). This “special hazard” exception includes such obstacles as railroad tracks that an employee must cross to get to work. Moffett, supra.
“While the special hazard exception has been applied to special hazards of a non-railroad character . . . ‘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., quoting 1 A. Larson, Workmen’s Compensation Law, § 15.13, pp. 4-37 to 4-38. Following that line of thought, as has been done in cases such as Moffett and Flodin v. Henry & Wright Mfg. Co., 131 Conn. 244 (1944), we conclude that the fact that the claimant’s path from the union meeting back to her office may have been the most direct route that did not mean her accident on the sidewalk was within the exception for special hazards.
Similarly, the claimant’s injury cannot be said to fall within the “personal comfort” exception discussed in Lovallo v. American Brass Co., 112 Conn. 635 (1931), and Renckowski, supra. The strict scrutiny used to analyze the work relationship of off-premises injuries involving issues of personal comfort clearly would exclude an injury sustained while walking back from an unpaid lunch break along a public sidewalk. See Kaplan, supra; Renckowski, supra, 53. Even if one could say that the claimant’s union meeting was of benefit to her employer (which we cannot on the record before us), one would still have to overcome the factual obstacle that she was returning from her lunch break when she was injured on premises not in the control of her employer. We do not think the claimant has done so here.
The trial commissioner’s decision is accordingly reversed, and the claimant’s claim is dismissed.
Commissioners Roberta S. D’Oyen and Amado J. Vargas concur.
1 On occasion, a trial commissioner is also asked to review his or her decision via the mechanism of a § 31-315 C.G.S. Motion to Reopen and/or a Motion to Submit Additional Evidence. However, the more usual procedure, which compels a trier’s review of his or her factual determination, is through a Motion to Correct. BACK TO TEXT
2 We do acknowledge the propriety of a commissioner’s unilateral correction of obvious mistakes, such as scrivener’s errors. BACK TO TEXT