CASE NO. 4212 CRB-2-00-3
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JUNE 8, 2001
STATE OF CONNECTICUT/UNIVERSITY OF CONNECTICUT
The claimant was represented by Howard B. Schiller, Esq., 55 Church Street, P. O. Box 699, Willimantic, CT 06226.
The respondent was represented by Philip Schulz, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the March 22, 2000 Supplemental Finding and Award of the Commissioner acting for the Second District was heard December 1, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondent has petitioned for review from the March 22, 2000 Supplemental Finding and Award of the Commissioner acting for the Second District.1 At issue in its appeal is the compensability of an August 23, 1996 elbow injury that the claimant suffered during her lunch break while walking from her office in the Whetten Building on the University of Connecticut’s campus to Jonathan’s restaurant, which is also located on the UConn campus. Following the decision of this board in Davis v. State/University of Connecticut, 3822 CRB-2-98-5 (Aug. 17, 1999) (CRB reversed trial commissioner’s ruling that claimant was not on her employer’s premises at time of injury), hereinafter Davis I, this matter was remanded so that the trier could determine whether the claimant was in a place that she reasonably might have been at the time of her injury. The commissioner issued a set of supplemental findings in which she specified that the claimant’s employer had been aware of her longstanding habit of walking to Jonathan’s at lunchtime, and not having objected to this practice, had thus “acquiesced” to it under the law. The trier also found no merit in the respondent’s newly-raised defense that the claimant was jaywalking at the time of her injury, thereby precluding any possible “acquiescence” on the part of UConn. The trier’s consequent finding of compensability is now on appeal before this board.
The respondent’s appellate argument is essentially a criticism of our decision in Davis I, interwoven with a challenge to the trier’s analysis concerning the legal impact of the claimant’s alleged misconduct, i.e., her jaywalking. We remind the respondent that this board adheres to the traditional jurisprudential doctrine of “law of the case,” which dictates that a legal determination, once made, will be treated as correct throughout all later stages of a proceeding, except when the question reaches a higher court. State v. Daniels, 209 Conn. 225, 237 (1988), cert. denied, 489 U.S. 1069 (1989); Horn v. State/Dept. of Correction, 4177 CRB-3-00-1 (Feb. 22, 2001). “Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance.” Id., quoting Westbrook v. Savin Rock Condominiums Assn., Inc., 50 Conn. App. 236, 240 (1998). Here, there is no such circumstance, and we decline to reconsider or overrule our decision in Davis I. We review the legal reasoning behind our prior decision only to set the stage for our discussion of the remaining issue on this appeal.
The claimant’s injury occurred during an unpaid lunch break. She slipped and fell as she stepped onto a curb en route to Jonathan’s, injuring her right elbow. In order for this injury to be compensable under the Workers’ Compensation Act, it must have arisen out of and in the course of the claimant’s employment. Spatafore v. Yale University, 239 Conn. 408, 417-18 (1996). Pursuant to Connecticut caselaw, the criteria used in analyzing whether an injury occurred in the course of a claimant’s employment differ depending on whether or not the employer controls the property upon which the claimant is hurt. Davis I, supra, citing McNamara v. Hamden, 176 Conn. 547, 553 (1979). “Where 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 . . . .’” Mazzone v. Connecticut Transit Co., 240 Conn. 788, 794 (1997). Off-premises injuries during an unpaid lunch break, meanwhile, fall outside the scope of one’s employment unless it can be shown that one’s actions have benefited her employer in some manner. Spatafore, supra, 421.
The respondent stipulated that the site of the claimant’s injury was owned and maintained by the “employer, State of Connecticut, University of Connecticut.” Jan. 8, 1998 Transcript, p. 3. This did not prevent the commissioner from characterizing this site as a state-owned curb accessible to the general public. She went on to reason that “there is no compelling reason to conclude that the place where the Claimant fell constituted part of the Employer’s premises . . . because that place was no more a part of her workplace than any state-owned road, curb or sidewalk is to any other state employee.” Memorandum of Law, p. 2. Accordingly, the commissioner originally concluded that the claimant, a clerical worker whose duties were confined to the Whetten Building, “was not within the period of employment, was not paid during the time of the injury, and was not on the employer’s premises at the time of the injury.” Id., 4.
In Davis I, this board sought guidance from the caselaw of its sister states regarding the peculiar situation of college campuses. We concluded that the best approach was to hold that, as a matter of law, the grounds of an entire college campus constitute its “premises,” rather than simply the building or buildings in which an employee happens to regularly work. See Warren’s Case, 97 N.E.2d 184 (Mass. 1951). Restrictions based on the locus of an employee’s job duties should not be factored into the legal definition of “employer premises.” Instead, if an employee happens to have been injured somewhere on school premises where she would not normally perform her job duties, the question becomes whether she could reasonably have been at that place when she was injured. This interpretation of the law comports closely with the decision of our Supreme Court in Mazzone, supra, which this board is compelled to follow. Mazzone does not hint at a limitation on the definition of employer premises.
As there was no dispute that the area in which the claimant fell was owned and maintained by UConn, we remanded the case to the trial commissioner so that she could make findings as to whether the claimant was at a place she could reasonably have been at the time of her injury. At the formal hearings, testimony had been given that, if believed, would establish that the employer had acquiesced to the claimant’s practice of walking to Jonathan’s for lunch, thereby satisfying this test. For example, the claimant had reported that she and her supervisor, Arlene Jacobsen, regularly walked across campus to Jonathan’s at lunchtime. Sept. 11, 1997 Transcript, p. 35. On remand, the trier indeed found this testimony to be credible. Therefore, consistent with the remand instructions of this board, she found that the claimant’s injury was compensable.
According to the respondent, the trial commissioner erred by stating that it did not matter if the claimant was jaywalking (crossing the street improperly) when she fell, as such an infraction would necessarily be relevant to her determination of whether the claimant was in a place she reasonably could have been at the time of her injury. Brief, p. 6. Though we understand the respondent’s argument, we disagree with its viewpoint that the factual circumstances here required the trier to make a finding that the claimant was jaywalking due to the unavoidable legal consequences that would be attached to such a finding. Without delving into the general significance of traffic ordinances or laws in gauging the reasonableness of a claimant’s actions, we observe that there was no substantial evidence showing that the claimant in this case was “failing to adhere to the most basic rules of how properly to cross a street” at the time of her fall. See id., p. 7; compare Paternostro v. Arborio Corporation, 3659 CRB-6-97-8 (Sept. 9, 1998), aff’d, 56 Conn. App. 215 (1999), cert. denied, 252 Conn. 928 (2000).2
The claimant’s fall occurred while she was stepping from the pavement of Fairfield Road onto a curb located between the southeastern corner of the Student Union building (where Jonathan’s is located) and the southwestern corner of the H.G. Hewitt Pharmacy building, both of which are clearly part of the UConn campus. Transcript, p. 52-53; Claimant’s Exhibit D, University of Connecticut Campus Map. The claimant testified that Fairfield Road is divided by a grass median, with diagonal parking spaces painted along both sides. Transcript, 54-57. There is one lane of traffic going in each direction. A portion of the median also consists of a cobblestone walk-through, next to which no parking is permitted. The claimant opined that this walkway was designed so that pedestrians could easily cross the Fairfield Road median at that point. Id., 59. It was directly opposite this walk-through area, approximately 15 feet away, that the claimant testified she fell. Id., 57-59. She also stated that there were no directional signals or signs to control traffic or to indicate that crossing is improper at that point, nor was there a crosswalk traversing Fairfield Road in that immediate area. Id., 54. An entrance to the Student Union building is available on the side facing the Pharmacy building, which the claimant customarily used. Id., 55.
Given this testimony, which was not contradicted by any other evidence, we find no error in the trier’s conclusion that, even if the claimant had technically been jaywalking at the time of her injury, this would not constitute a substantial deviation from the route her employer had implicitly acquiesced to her following at lunchtime. The presence of a crosswalk at the intersection of Hillside Road and Fairfield Road, facing the southwestern corner of the Student Union building, did not automatically require the claimant to forgo more convenient paths across Fairfield Road and closer entrances to the Student Union. The respondent did not produce any evidence that crossing Fairfield Road is considered illegal or even dangerous by school officials or the local police force (unlike the obvious perils of walking across a limited-access interstate highway; see Paternostro, supra, n.2). Neither party suggested that the claimant even took a mildly increased risk by traversing Fairfield Road where she did. The respondent also did not show that the crosswalk at the junction of Fairfield and Hillside was designed to protect pedestrians from the danger of crossing Fairfield Road in the vicinity of the Pharmacy building and beyond, as opposed to pedestrians walking on the sidewalk alongside Hillside Road through its intersection with Fairfield. Therefore, we find no error in the trial commissioner’s declaration that the respondent’s “jaywalking” argument was without merit.
The trial commissioner’s decision is hereby affirmed. Insofar as any benefits due may remain unpaid pending the outcome of this appeal, interest is awarded pursuant to § 31-301c(b) from the date of the withdrawal of the claimant’s appeal petition.
Commissioners Robin L. Wilson and Leonard S. Paoletta concur.
1 The claimant filed a petition for review from the trial commissioner’s decision as well, but withdrew that appeal on November 14, 2000, leaving the respondent’s appeal as the only one pending. BACK TO TEXT
2 In Paternostro, the decedent was a road crew worker whose job was to erect warning signs on the shoulder of the highway. He had been asked to correct some misplaced signs on I-84 in Waterbury. Late one night, after he had been drinking past the point of legal intoxication, he drove his company truck to the work site and parked it in the shoulder of the left lane. He crossed over the highway to fix the signs on the right side, then attempted to return to his vehicle, at which point he was struck by a car and killed. The trial commissioner found that the decedent had contravened company rules prohibiting alcohol consumption on the job and the crossing of a limited-access highway on foot, and dismissed his claim on the ground that his injuries were caused by his own willful and serious misconduct. The CRB affirmed that ruling, noting that the decedent’s nighttime dash across I-84 likely constituted an infraction under § 53-182 C.G.S. (a disorderly conduct misdemeanor statute barring reckless creation of risk by, inter alia, obstruction of vehicular or pedestrian traffic). The Appellate Court found the trial commissioner’s conclusions to be reasonable as well. BACK TO TEXT