CASE NO. 3693 CRB-02-97-09
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
NOVEMBER 24, 1998
The claimant was represented by Michael P. Carey, Esq., Brown, Jacobson, Tillinghast, Lahan & King, P. C., 22 Courthouse Square, Norwich, CT 06360.
The respondents were represented by Kevin Blake, Esq., Cotter, Cotter & Sohon, 500 Boston Post Road, Milford, CT 06460.
This Petition for Review from the September 22, 1997 Findings of Facts and Award of the Commissioner acting for the Second District was heard May 29, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles.
JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the September 22, 1997 Findings of Facts and Award of the Commissioner acting for the Second District. They argue on appeal that the trier erred by finding that the claimant’s injury was compensable, as they contend that it occurred while she was smoking a cigarette off of her employer’s premises during a paid break. We affirm the trial commissioner’s decision.
The claimant was employed by the respondent Aramark Corp. on December 6, 1996, as a mess attendant at Chase Hall on the campus of the Coast Guard Academy. Aramark held a subcontract with the United States Coast Guard to provide dining services at Chase Hall, and had been the claimant’s employer for the last ten years. The claimant’s union had a contract with Aramark providing that she was entitled to a ten minute paid unscheduled rest period during her morning shift, which the claimant usually took between 6:50 and 7:00 A.M. each day. The claimant structured her break time so that it would not impede service to the cadets living at Chase Hall, and always took her break in the same place so that her supervisor could contact her if necessary.
On the date in question, the claimant left the dining hall and went down a flight of stairs to the employee lounge. The Coast Guard Academy provided the lounge for the use of Aramark employees. The claimant proceeded to the restroom, which was further down the hallway, and after using the restroom continued on to a designated smoking area immediately outside an entrance door to Chase Hall, adjacent to a former tailor shop. This is the same routine the claimant followed on a typical day. The commissioner found that the lounge, restrooms, and the designated smoking area were all open to use by Aramark employees. Generally, Aramark employees were free to walk throughout all of Chase Hall, and to use other restrooms, soda machines, etc., located in the building. Until September 1, 1990, Aramark employees were also allowed to smoke inside Chase Hall, but smoking inside the food service areas of the building, including the lounge, has since been banned by the Coast Guard. See Claimant’s Exhibit B.
Aramark’s management had often explained the smoking policy to its employees. A 1995 memorandum from the Coast Guard to Aramark concerning the smoking policy stated that “the closest spot where a Food Service person working in Chase Hall Food Service Spaces may smoke LEGALLY on the academy grounds is on the East side of the building, OUTSIDE of the BUILDING adjacent to the tailor shop entrance/exit.” Id. (emphasis in original). A blue sign on the red brick wall marks that location “Smoking Area, Keep Clean,” and a large floor ashtray is located near the sign. See Claimant’s Exhibit G. The claimant was often joined by other Aramark employees in that designated smoking area, where they would all smoke together. On December 6, 1996, while standing in the rain in that smoking area during her morning break, the claimant slipped and fell, fracturing her right lower leg and ankle.
The respondents contended that the claimant was doing something for her own personal comfort at the time of her injury, and contested her claim for compensation. However, the trial commissioner found that her fall arose out of and occurred in the course of her employment with Aramark, stating that her “paid ten minute break and her smoking while on it was a regular and consistent activity that was permitted, approved, acquiesced in and/or sanctioned by Aramark and which occurred within the period of employment on the work premises at a place designated by the employer.” Findings, ¶ B. He also noted that the provision of that break was of benefit to Aramark. ¶ C. He ordered the respondents to pay benefits to the claimant, from which decision the respondents have appealed to this board.
“It is an axiom of workers’ compensation law that awards are determined by a two-part test. The employee has the burden of proving that the injury claimed arose out of the employment and occurred in the course of the employment. . . . ‘The [latter] relates to the time, place and circumstance of the accident, while the [former] refers to the origin and cause of the accident.’” McNamara v. Hamden, 176 Conn. 547, 550 (1979), quoting Stakonis v. United Advertising Corp., 110 Conn. 384, 389 (1929). In deciding whether a claimant’s injury arose out of and in the course of her employment, the trial commissioner must draw an inference from the facts found. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). If said inference is supported by the evidence and not inconsistent with the law, it cannot be set aside on appeal by a reviewing tribunal, as it is a “finding of a primary fact.” Id., 539-41.
The respondents argue in their brief that the trier’s decision must be reversed because elements of both tests—“arising out of the employment” and arising “in the course of the employment”—were left unsatisfied in this case. We will address each issue separately, for these phrases are not interchangeable. In order for an injury to occur in the course of a claimant’s employment, it “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.” Spatafore v. Yale University, 239 Conn. 408, 418 (1996) (internal quotation marks and citations omitted); Dombach v. Olkon Corp., 163 Conn. 216, 221 (1972). Special categories exist inside this tripartite sub-test for analyzing “coming and going” cases, where an employee is injured en route to or from work; “personal comfort” cases, where an employee is tending to a personal need when injured; and “horseplay” cases, where an employee is injured while doing something completely extraneous to his job, like wrestling or spraying water from a hose onto a fellow worker. McNamara, supra, 552; see also, Simmons v. Bonhotel, 40 Conn. App. 278 (1996).
In the context of the “coming and going” and “personal comfort” cases, our courts’ method of examining the “in the course of employment” criteria in cases involving injuries occurring on the employers’ premises or in places subject to the employers’ control has not been identical to the method used in cases involving injuries occurring on property controlled by another. See Mazzone v. Connecticut Transit Co., 240 Conn. 788 (1997); Spatafore, supra; McNamara, supra; Bogrette v. Merriam Motors, 3538 CRB-8-97-2 (July 22, 1998).1 The rationale behind this distinction is discussed in McNamara: “the need arose [in “coming and going” cases] to reach out for the additional element of employer benefit to make up for the fact that employees going to or coming from work do not satisfy both of the first two course-of-employment requirements, [those being] place and period of employment. . . . When an employee is on the premises and is within the period of employment, however, it should not be necessary to satisfy the additional test of employer benefit. Rather, the basic test should be remembered and applied: Is this activity incidental to the employment?” Id., 553 (emphasis in original). The McNamara court wrote that benefits could be awarded in certain “personal comfort” and “horseplay” cases “because the injury had occurred on the premises as the result of a customary activity sanctioned by the employer through approval or acquiescence.” Id., 553-54.
The respondents argue that the instant case is legally identical to Renckowski v. Yale University, 11 Conn. Workers’ Comp. Rev. Op. 48, 1292 CRD-3-91-9 (March 18, 1993), and must be resolved in the same way. Renckowski concerned a claimant who, during a paid coffee break, walked over to a restaurant adjacent to the employer’s premises and fell on the restaurant’s stairs. Her employer allowed, but did not require, the claimant to get her coffee next door. This board reversed the trial commissioner’s decision to award the claimant benefits in that case, stating that the injury’s occurrence off-premises while the claimant was attending to a personal comfort placed a greater burden on the claimant to demonstrate that she was “reasonably fulfilling the duties of the employment or doing something incidental to it” when she was injured. Id., 53. As none of the trial commissioner’s findings or conclusions addressed this third prong of the “in the course of employment” test, we held that there was insufficient support for the trier’s finding of compensability.
We disagree with the respondents’ contention that Renckowski should guide our decision here. First, the claimant in Renckowski was not required to get her coffee at the pizza place next door. In contrast, Aramark essentially directed the instant claimant to take her cigarette breaks outside the building in the designated smoking area where she was injured. Although one could argue that the claimant did not have to smoke at all, cases such as Mazzone, supra, and McNamara, supra, establish that, like eating lunch, using the restrooms, or even playing Ping-Pong in a designated recreation area,2 the act of smoking a cigarette is a “personal comfort” activity that often becomes a regular incident of one’s employment. See n.1, supra; see also Lovallo v. American Brass Co., 112 Conn. 635 (1931) (permission to smoke was for mutual advantage of employer and employee, and was incidental to deceased’s employment). The Coast Guard’s implementation of a “no smoking” policy inside the food service areas of Chase Hall may have forced the claimant to smoke outside, but did not change the incidental nature of the activity of smoking itself, which had never been categorically prohibited by Aramark.
Second, and more importantly, the trier specifically found in ¶ B of his conclusions that the claimant was injured on the employer’s premises. For the purpose of a workers’ compensation claim, we have used “premises” to refer to any area that is under the care, custody or control of the employer. See Bogrette, supra; Renckowski, supra, 49. Indeed, Larson’s treatise states, “[w]hen the place of employment is a building, it is not necessary that the employer own or lease the place where the injury occurred. It is sufficient if the employer has some kind of right of passage, as in the case of common stairs, elevators, lobbies, vestibules, concourses, hallways, walkways, ramps, foot bridges, driveways, or passage ways through which the employer has something equivalent to an easement.” 1 Larson’s Workers’ Compensation Law, § 15.43, pp. 4-132 through 4-137 (1998).
The respondents stress that the smoking area in question here was selected by the Coast Guard, and was not maintained or kept clean by Aramark through its employees. It is clear, though, that the Coast Guard directed Aramark to instruct its employees that the nearest available smoking area was the same one where the claimant was injured. See Claimant’s Exhibit B. The fact that Aramark was not contractually responsible for maintaining that area is not dispositive under the rule discussed in Larson’s treatise, which we adopt here. The trial commissioner was thus within his discretion as the fact-finder to rule that the smoking area in question was part of the employer’s premises. Therefore, the claimant was not required to establish the additional element of employer benefit discussed in cases such as McNamara, supra, and Renckowski, supra, in order to prove that her injury occurred in the course of her employment.
In order for an injury to arise out of a claimant’s employment, it must (a) occur in the course of the employment, and (b) be the result of a risk involved in the employment or incident to it or to the conditions under which it is required to be performed. Dombach, supra, 221-22; Tovish v. Gerber Electronics, 32 Conn. App. 595, 607 (1993), aff’d, 229 Conn. 587 (1994). As extensively discussed above, the first part of that test has been satisfied. The second part primarily concerns the causal connection between the employment and the injury.
The respondents argue in their brief that there was no indication in the trier’s decision that the “arising out of the employment” test was met. However, they do not elaborate further on that issue. We note that in cases such as Mazzone, supra, Spatafore, supra, and Renckowski, supra, only the “in the course of employment” test was discussed by the parties. In fact, the Court noted in Mazzone that, “[a]lthough the parties repeatedly recite both parts of the test in support of their respective arguments, their unelaborated references to the ‘arising out of’ language are merely incidental to the issue that lies at the crux of their dispute, . . . namely, whether the claimant ‘was in the course of his employment’ at the time of his injury.” Id., 793. The Court thus confined its discussion to that issue. A similar course was taken in McNamara, supra, 550. Perceiving no patent error in the trial commissioner’s decision regarding the satisfaction of the “arising out of the employment” test, we will do likewise here.
We thus affirm the trial commissioner’s decision.
Commissioners Donald H. Doyle, Jr., and Michael S. Miles concur.
1 This dichotomy is best demonstrated by comparing Spatafore v. Yale University, 239 Conn. 408 (1996), with Mazzone v. Connecticut Transit Co., 240 Conn. 788 (1997). In Spatafore, the Court upheld decisions by the trial commissioner and this board dismissing a claim for an injury suffered by the claimant during her unpaid lunch break while walking along a public sidewalk outside the employer’s control. “It is generally recognized that ‘[where] the employee has a definite place and time of work, and time of work does not include the lunch hour, the trip away from and back to the premises for the purpose of getting lunch is indistinguishable in principle from the trip at the beginning and end of the work day, and should be governed by the same rules and exceptions. . . .’” Id., 420-21, quoting 1 A. Larson & L. Larson, Workmen’s Compensation (1996), § 15.51, pp. 4-158 through 4-162. In contrast, the Court reversed rulings by the trier and this board dismissing the claim in Mazzone, where a claimant sitting on an out-of-service bus parked on his employer’s premises fell on the stairs of the bus during his unpaid lunch break. “Where, as here, a lunchtime injury takes place on the employer’s premises, that injury may be said to have occurred ‘in the course of employment, even though the [lunch] interval is technically outside the regular hours of employment in the sense that the worker receives no pay for that time and is in no degree under the control of the employer, being free to go where he pleases.’” Id., 794, quoting 1A A. Larson & L. Larson, supra, § 21.21(a), p. 5-6. The Court held that the claimant was, as a matter of law, within the period of his employment and doing something incidental to his employment when he was injured, and remanded the case for findings regarding satisfaction of the second prong of the “in the course of employment” test, i.e., whether the claimant was reasonably on the bus at the time of his injury, which in turn depended on whether the employer acquiesced to or approved of his presence there. Id., 795-96. BACK TO TEXT
2 Subsequent to the McNamara decision, the legislature enacted P.A. 93-228, which amended § 31-275(16)(B)(i) to exclude from the definition of “personal injury” injuries to employees that result from voluntary participation in social or recreational activities such as athletic events, picnics and parties. However, as our Supreme Court noted in Herman v. Sherwood Industries, Inc., 244 Conn. 502, 506 n.5 (1998), the enactment of § 31-275(16)(B)(i) does not make the general principles discussed in McNamara inapplicable to future cases. BACK TO TEXT