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Kish v. Nursing and Home Care

CASE NO. 3068 CRB-7-95-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 12, 1996

ROSEMARY KISH

CLAIMANT-APPELLEE

v.

NURSING AND HOME CARE

EMPLOYER

and

CONNECTICUT HOSPITAL ASSOCIATION WORKERS’ COMPENSATION TRUST

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Reid Parrington, Esq., and Frank Bonito, Esq., 1200 Boston Post Road, Suite 204, Guilford, CT 06437.

The respondents were represented by Neil Ambrose, Esq., Letizia & Ambrose, Woodbridge Corporate Park, 1764 Litchfield Tpke., Suite 106, Woodbridge, CT 06525.

This Petition for Review from the May 19, 1995 Finding and Award of the Commissioner acting for the Seventh District was heard May 10, 1996 before a Compensation Review Board panel consisting of Commissioners George A. Waldron, Robin L. Wilson and Michael S. Miles.

OPINION

ROBIN L. WILSON, COMMISSIONER. The respondents have petitioned for review from the May 19, 1995 Finding and Award of the Commissioner acting for the Seventh District. They argue on appeal that the commissioner erred by finding that the claimant’s injury arose out of and in the course of her employment with the respondent Nursing and Home Care. We affirm the trial commissioner’s decision.

The trial commissioner found that the claimant is a registered nurse who was a salaried employee of the Nursing and Home Care agency. Her responsibilities included visiting patients at their homes and overseeing their care. She would make decisions concerning that care, and her patients’ referral to doctors and other specialists. On a normal workday, the claimant would use her own car to visit patients, and would begin her day by reporting to her employer’s main office at 8:30 a.m. She would visit an average of five patients a day, working out of her car, and taking lunch when and where she could find the time. The claimant set her own work schedule, and was reimbursed for mileage. Her workday would end at approximately 4:30 p.m., and she would not return to the main office at the end of each day.

One of the claimant’s patients was an elderly lady for whom the claimant had reserved a commode at a New Canaan supply house because the commode the woman was using appeared unsafe to the claimant. The claimant’s supervisor, Diana Mager, had told the claimant not to deliver the commode herself, but to have the patient’s caretaker pick it up. While visiting that patient on April 26, 1994, the claimant noted that her physical condition had worsened, and thought that the makeshift commode needed to be replaced by an adequate one as soon as possible. She took it upon herself to drive to the supply house and procure the commode. On the way there, she noticed a postal truck parked on the opposite side of the street on which she was driving. Recalling that she had to mail a greeting card to a friend, she stopped and parked her car along the curb. She got out, crossed the street, handed the card to the postman, and began to return to her car. While crossing back to her car, she was struck by an automobile that she had thought was going to stop for a stop sign.

Mager testified that she had told the claimant not to personally deliver the commode, as there was an unwritten agency policy that visiting nurses were not supposed to pick up and deliver items for patients (although such activities were not prohibited by the agency policy manual). The claimant admitted that she knew of this policy. Further, Mager stated that the claimant would have had no specific authorization to mail a personal letter while in the course of her employment. Mager did agree, however, that the claimant’s patient’s commode was unsafe and needed to be replaced. The commissioner concluded that the claimant’s decision to pick up the commode was reasonable under the circumstances, and that she was acting in the course of her employment while doing so. He also found that her momentarily stopping to mail a personal card was so inconsequential relative to her job duties that it did not remove her from acting in the course and scope of her employment, especially given the autonomy of her nursing duties. Therefore, he concluded that her injuries sustained on April 26, 1994 were compensable, as the claimant’s conduct was not willful and wanton so as to preclude a workers’ compensation claim. The respondents have appealed that decision.

The respondents raise two basic contentions on appeal: that the commissioner erred by denying parts of their Motion to Correct, and that the commissioner erred by concluding that the claimant’s injury arose out of and in the course of her employment. With regard to the denied corrections, the respondents correctly assert that this board may change the findings only if they are found without evidence or if undisputed material facts are omitted from the decision. Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 71, 1859 CRB-5-93-9 (May 12, 1995). However, where a requested correction would have no impact on the outcome of a case, or where it is dependent on the commissioner’s assessment of the credibility of the evidence, we will uphold a commissioner’s refusal to grant that correction. Id., 70-71.

All of the corrections whose denial the respondents raise as error are either redundant in the context of this decision or irrelevant to the outcome of the case, and they are all fully dependent on the testimony of the claimant and/or her supervisor. Some of them, such as the supervisor’s authority to direct the claimant not to pick up the commode, and the lack of a relationship between the letter the claimant mailed and the employer’s business, actually go without saying in this case. There is simply no need to add findings reflecting those facts to the commissioner’s decision, as they are already implied in the language of the award. Others, such as the assertion that an employee of the respondent would be reprimanded if she picked up a commode for a patient during a shift, and the actual degree of the claimant’s patient’s deterioration on the date of the injury, are not directly relevant to the outcome of this case. We therefore leave the facts as they were found and originally corrected by the trial commissioner.

The respondents’ second argument is that these facts do not support the legal conclusion that the claimant’s injury arose out of and in the course of her employment with Nursing and Home Care. Although this issue is factual in nature, there are legal standards to guide one in making this determination. Crochiere v. Board of Education, 227 Conn. 333, 347 (1993). An injury arises out of the employment when it occurs in the course of the employment and is the result of a risk involved in the employment or incident to the conditions under which the employment is performed. Spatafore v. Yale University, 14 Conn. Workers’ Comp. Rev. Op. 310, 313, 2011 CRB-3-94-4 (Oct. 25, 1995). An injury comes within the course of the employment when it occurs within the employment period, at a place the employee may reasonably be, and while the employee is reasonably fulfilling or doing something incidental to his employment duties. Id., citing McNamara v. Hamden, 176 Conn. 547, 550-51 (1979).

There is no dispute that the claimant was being compensated at the time of her injury, and that she was running a work-related errand. The fact that the employer had a policy against its employees running such errands for patients does not mean that the errand was automatically removed from the scope of the claimant’s employment, nor does the claimant’s attempted performance of the errand amount to willful misconduct. Willful misconduct is either intentional misconduct, or misconduct of a character evincing a reckless disregard of the potentially harmful consequences. Federchuck v. UTC/Pratt & Whitney, 2298 CRB-2-95-2 (decided Sept. 16, 1996). Although the claimant was aware of the rule against picking up supplies for patients, there is no way she should have been expected to foresee in running such an errand the possibility of being struck by a car while walking across the street. It was certainly reasonable for the trial commissioner to conclude that the claimant believed that her patient needed a proper commode as soon as possible, and that she went to pick it up in an effort to provide better care to that patient, which was her job. See Larson’s Workmen’s Compensation Law, § 31.00 (distinguishing overstepping boundaries of ultimate work to be done from regulations relating to method of doing work). We do not believe that it was error to find that the errand itself was within the scope of the claimant’s employment.

The claimant’s stopping to mail a personal card while running the errand was obviously a deviation from her employment duties. However, the trial commissioner found that this deviation was so inconsequential that it did not remove her from acting in the course and scope of her employment at the time of the accident. We believe that this represented a legitimate question of fact, and that the commissioner was entitled to reach this conclusion. In Robinson v. State, 93 Conn. 49 (1918), a foreman for a gang of highway workmen had been struck by a car while walking across the street to say hello to a friend. Even though this action was not in itself work-related, our Supreme Court ruled that the claimant did not step outside his employment as a matter of law just because he began crossing the street in response to a friendly salutation. Id., 52.

Like the claimant in Robinson, the claimant here was engaged in an endeavor at the time of her accident, i.e., driving to New Canaan, that was done to further her employer’s interests. Compare Bell v. U.S. Home Care Certified of Connecticut, 13 Conn. Workers’ Comp. Rev. Op. 294, 296, 1792 CRB-1-93-8 (April 21, 1995) (claimant stopped at beauty supply store primarily to purchase items for her own use, and “dual purpose” doctrine of Dombach v. Olkon Corporation, 163 Conn. 216 (1972), did not apply); compare also Mulligan v. Oakes, 128 Conn. 488 (1942) (claimant was using employer’s automobile on her day off, and her injuries in an accident were not compensable because her use of the vehicle was for purposes solely her own). Not every incidental act, like mailing a letter on the way to the store, need be separated legally from the scope of the employment. The commissioner was within his authority in finding that the claimant’s accident occurred in the course of and arose out of her employment, and we affirm that decision on appeal. As the respondents’ appeal has been denied, they are now required to pay interest on the award insofar as benefits have not been paid pending appeal. See § 31-301c(b) C.G.S.

Commissioner Michael S. Miles concurs.

GEORGE A. WALDRON, COMMISSIONER, DISSENTING. I dissent from the result reached by the majority, because I believe that the claimant’s actions in mailing the letter were the primary factor in creating the risk of an accident. Unlike Robinson, supra, where the claimant was already standing on the side of the highway, the claimant here was safely driving along in her car until she decided to mail her greeting card. At that point, she got out and crossed the street, creating the circumstance that resulted in her being hit by a car. In Bell, supra, the claimant’s accident was caused because she decided to stop at a store for personal reasons, and fell down while leaving the shop. Here, the claimant’s accident occurred when she stopped near a mail truck for personal reasons, and was struck by an automobile. The claimant’s claim was properly dismissed in Bell; I believe that the same result should ensue here. Accordingly, I dissent.

Workers’ Compensation Commission

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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