CASE NO. 2246 CRB-3-94-12
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
AUGUST 6, 1996
The claimant was represented by David Esposito, Esq., 1240 Whitney Ave., Hamden CT 06517.
The employer was represented by John Walsh, Jr. Esq., Lynch, Traub, Keefe & Errante, P.C., P.O. Box 1612, 52 Trumbull Street, New Haven, CT 06506.
This Petition for Review from the December 1, 1994 Finding and Dismissal of the Commissioner acting for the Third District was heard October 27, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.
JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the December 1, 1994 Finding and Dismissal of the Commissioner for the Third District. In that decision, the commissioner concluded that the claimant’s injury of February 18, 1992 did not arise out of and in the course of his employment, but rather occurred during an unpaid lunch break. The trial commissioner found that the claimant’s injury occurred when he fell from a bus where he was eating his lunch; that the employer provided a lunch room in the building for employees to eat lunch; and that the employer was “aware” that some employees ate their lunches on busses parked in the yard. In support of his appeal, the claimant contends that the injury arose out of and in the course of his employment because the employer acquiesced to the employees’ practice of eating their lunches on off-duty busses parked in the employer’s back yard, where the injury occurred.1 We affirm the trial commissioner.
Whether the trier erred in finding that the claimant’s injury arose out of and in the course of her employment requires a factual determination which we will not disturb unless it is found without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). This board has recently stated the following:
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, 13 Conn. Workers’ Comp. Rev. Op. 294, 1792 CRB-1-93-8 (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.
Kaplan v. State of Connecticut/Department of Health Services, Case No. 2012 CRB-1-94-4 (Sept. 11, 1995).
In support of his appeal, the claimant relies upon McNamara v. Hamden, 176 Conn. 547 (1979). The court in that case stated that an injury occurs in the course of employment where “the activity is regularly engaged in on the employer’s premises within the period of the employment, with the employer’s approval or acquiescence....” Id. at 556. In the instant case, the trial commissioner did not find that the claimant was within the period of the employment at the time of the injury, but rather was on an unpaid lunch break. In addition, the trial commissioner did not find that the practice of eating lunch on parked busses received the employer’s approval or acquiescence. Moreover, the McNamara decision is factually distinguishable as it involved an injury which occurred during a ping-pong game2 in the employer’s facility where the employer “sanctioned the games by regulating the permitted playing times, by allowing the equipment on the premises, and by setting aside actual work hours in the afternoon for the activity.” Id. at 555.
In the instant case, the commissioner concluded that the claimant “was not doing anything while on his lunch break in furtherance of the employer’s business or incidental to it.” The conclusion that the claimant’s injury did not arise out of and in the course of his employment is amply supported by the record, and is not contrary to law or based on unreasonable or impermissible factual inferences. See Spatafore v. Yale University, 14 Conn. Workers’ Comp. Rev. Op. 310, 2011 CRB-3-94-4 (Sept. 14, 1995) (injury which occurred while walking back from a union meeting on lunch break held not compensable); Kaplan v. State of Connecticut/ Dept. of Health Services, 14 Conn. Workers’ Comp. Rev. Op. 296, 2012 CRB-1-94-4 (Sept. 11, 1995) (injury which occurred during unpaid break on sidewalk not compensable); Moffett v. Tighe Williams Salon, 12 Conn. Workers’ Comp. Rev. Op. 83, 1489 CRB-4-92-8 (Feb. 9, 1994) (injury which occurred in an area in front of employer’s facility which was not controlled by employer held not compensable); Renckowski v. Yale University, 11 Conn. Workers’ Comp. Rev. Op. 48, 1292 CRD-3-91-9 (March 18, 1993) (injury held not compensable which occurred during paid coffee break at adjacent restaurant, even though activity regularly practiced by employees and acquiesced to by employer).
The trial commissioner’s decision is affirmed.
Commissioners Roberta Smith Tracy and Amado J. Vargas concur.
1 The claimant has not filed a motion to correct, as he does not dispute the findings of the trial commissioner. Accordingly, we are limited to reviewing the facts as found by the trial commissioner. Spindler v. Med-Center Home Health Center, 12 Conn. Workers’ Comp. Rev. Op. 130, 132, 1474 CRB-7-92-7 (Feb. 28, 1994). BACK TO TEXT
2 It should be noted that the legislature in P.A. 93-228 amended the definition of personal injury by excluding an injury which results from the “voluntary participation in any activity the major purpose of which is social or recreational....” § 31-275(16). BACK TO TEXT