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Kaplan v. State of Connecticut/Department of Health Services

CASE NO. 2012 CRB-1-94-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 11, 1995

ELIZABETH KAPLAN

CLAIMANT-APPELLANT

v.

STATE OF CONNECTICUT/DEPARTMENT OF HEALTH SERVICES

EMPLOYER

and

ALEXSIS, INC.

SELF-INSURED ADMINISTRATOR

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by M. Jane Christensen, Esq., Mantak & Christensen, 73 Russ St., Hartford, CT 06106.

The respondents were represented by Yinxia Long, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the March 29, 1994 Finding and Award of the Commissioner acting for the First 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.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the March 29, 1994 Finding and Award of the Commissioner for the First District. On appeal, she argues that the commissioner erred in finding that her injury did not arise out of and in the course of her employment. We affirm the trial commissioner’s decision.

The commissioner found that the claimant, a state employee, tripped over a piece of plastic strapping while returning to her office on September 25, 1991 and broke her right ankle. She had worked through her regular lunch hour that day due to an impending deadline on a report, and was taking an afternoon break with a co-worker. Both were out of the office on an unpaid lunch period at the time of the injury, and were not on premises controlled by the employer. The commissioner also found that the employer did not require the claimant to take her lunch break at a particular time or in a particular place. He concluded that the claimant left the employer’s premises “not only for lunch but also to enjoy a respite from the pressure she had felt at work,” and that “[w]alking back to the office did not subject Claimant to any risk arising out of her employment nor any risk greater than the general public faced.” He thus denied her claim for compensation.

The claimant subsequently appealed that decision and filed a Motion to Correct several paragraphs of the award, including a proposed addition stating that the employer did not furnish an employee lunchroom or cafeteria, and that it had no rules stating that employees could not leave the premises at lunchtime. The Motion to Correct was denied. The claimant now argues that the commissioner erred in failing to find that the claimant was in the course of her employment while she was walking along a public sidewalk at the time of her injury. She argues that a lunch break period constitutes a legitimate personal need incidental to the employment relationship, and that she was at the location where the injury occurred because of her work schedule, which benefited her employer.

Section 31-284 C.G.S. requires an employer to secure workers’ compensation for an employee who suffers a personal injury arising out of and in the course of his employment.1 It is well settled that “[i]n 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); Bell v. U. S. Home Care Certified of Connecticut, 1792 CRB-1-93-8 (decided April 21, 1995). The question of whether an injury meets these criteria is factual in nature and is committed to the trial commissioner’s discretion. Tovish, supra, 605.

It is unclear whether the instant case falls directly within the scope of “coming and going” cases such as Dombach, supra, and our recent decision in Fantasia v. Tony Pantano Mason Contractors, 1819 CRB-5-93-8 (decided May 4, 1995), where it is necessary for the commissioner to determine that there is a benefit to the employer before compensation may be awarded. See McNamara v. Hamden, 176 Conn. 547, 552-53 (1979). Even though the claimant’s injury did not occur on the employer’s premises, this case arguably concerns an act relating to the personal comfort of an employee as discussed in Lovallo v. American Brass Co., 112 Conn. 635, 639 (1931). In light of our decision in Renckowski v. Yale University, 11 Conn. Workers’ Comp. Rev. Op. 48, 1292 CRD-3-91-9 (March 18, 1993), however, we do not think the difficulty of making this distinction has a bearing on the outcome here.

In Renckowski, the claimant left the university’s premises on a paid coffee break and went to an adjacent restaurant to get coffee. This activity was acquiesced to by her employer, although the claimant could have gone elsewhere to obtain coffee as well. The claimant fell down the stairs at the restaurant and suffered an injury as a result. Yale University owned the restaurant, but did not have control of the stairs where the claimant fell. We held that that case concerned a personal comfort issue which took place off the employer’s premises, requiring a stricter scrutiny as to whether the injury occurred while the employee was reasonably fulfilling employment duties or doing something incidental to them. Id., 53. Because no findings had been made to support such a conclusion, we dismissed the claimant’s claim.

Here, the relevant facts are almost identical to those in Renckowski, except that the claimant was on an unpaid lunch break at the time of her injury. That, if anything, brings this case closer to the “coming and going” cases in which the claimant’s burden of proof is slightly more difficult to meet. See also Bell, supra. The facts cited by the claimant regarding her attempt to meet a deadline and the absence of lunchroom facilities on the employer’s premises are irrelevant, and the commissioner justifiably denied the claimant’s Motion to Correct. See Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994). There are valid findings in place that the claimant was not required by her employer to walk to McDonald’s on her unpaid lunch break, and her injury was unconnected with any sort of employment-related risk. See Vitas v. Grace Hospital Society, 107 Conn. 512, 516 (1928). The commissioner was entitled to conclude from the facts found that the claimant’s injury did not arise out of and in the course of her employment with the respondent. We have no grounds for disturbing that conclusion on appeal. Webb v. Pfizer, Inc., 1859 CRB-5-93-9 (decided May 12, 1995).

The trial commissioner’s decision is affirmed.

Commissioners Roberta S. D’Oyen and Amado J. Vargas concur.

1 Section 31-275(1) C.G.S. defines “arising out of and in the course of his employment” to mean “an accidental injury happening to an employee or an occupational disease of an employee originating while he has been engaged in the line of his duty in the business or affairs of an employer upon the employer’s premises, or while engaged elsewhere upon the employer’s business or affairs by the direction, express or implied, of the employer . . . .” BACK TO TEXT

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