State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Cimmino v. Hospital of St. Raphael

CASE NO. 4230 CRB-3-00-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 13, 2001

RONALD CIMMINO

CLAIMANT-APPELLEE

v.

HOSPITAL OF ST. RAPHAEL

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Steven J. DeFrank, Esq., Jacobs, Grudberg, Belt & Dow, P.C., 350 Orange Street, P.O. Box 606, New Haven, CT 06503-0606.

The respondent was represented by Nicholas Grello, Esq., Siegel, O’Connor, Schiff & Zangari, P.C., 150 Trumbull Street, Hartford, CT 06103.

This Petition for Review from the April 25, 2000 Finding and Award of the Commissioner acting for the Third District was heard May 18, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent, Hospital of St. Raphael, has petitioned for review from the April 25, 2000 Finding and Award of the Commissioner acting for the Third District. The hospital contends on appeal that the trier erred by concluding that the claimant sustained a compensable injury based on a set of facts stipulated by the parties. As a preliminary matter, we observe that no formal hearing was held in this case, nor was any testimony otherwise taken. Therefore, the deferential standard that we normally afford trial commissioners on issues of credibility does not govern here, as we are equally able to gauge the legal implications of the parties’ stipulated facts. See Pietraroia v. Northeast Utilities, 254 Conn. 60, 75 (2000); Donahue v. Southington, 4136 CRB-6-99-10 (Nov. 30, 2000). After analyzing the stipulation and the applicable law, we concur with the result reached by the trier, and affirm his decision.

The parties’ stipulation lists thirty separate items, including the following facts. The claimant works for the respondent hospital as a phlebotomist, which among other things requires him to travel to nursing homes and other facilities in order to collect blood. Usually, the hospital’s phlebotomists complete their blood collections in the early morning hours. The claimant uses his own car to fetch the blood samples, which are held in vacuum-sealed glass tubes that are placed in zippered plastic bags, and then stored either in an enclosed cooler marked “biohazard,” or in a special phlebotomist’s tray. Normally, a number of phlebotomists are on duty at any given time, any one of which would be available to respond to an emergency or non-routine call. The claimant’s regularly scheduled work day is first shift, which begins between 5:30 and 7:00 a.m., and ends at 3:00 p.m.

Among the three employee parking lots available to hospital employees is the Orchard Street garage, which is across Orchard Street from the hospital. The claimant parks his car in this garage, and uses an electronic parking pass provided by his employer to get in and out of the garage. The hospital deducts a parking fee from his paycheck. The only way to access this parking garage from the hospital is by crossing Orchard Street, which is traversed by a crosswalk at both ends of the block containing the hospital: the Chapel Street intersection to the north, and the George Street intersection to the south. Orchard Street is a public street owned, maintained and controlled by the city of New Haven. However, the Orchard Street garage is maintained by the hospital.

At some point during the weekend of June 13-14, 1998, the front window on the driver’s side of the claimant’s car slipped off its tracks and could no longer be rolled up. The claimant thus performed his blood-collecting duties during the mornings of June 15, 16 and 17, 1998, using a vehicle with a malfunctioning window. On June 17, 1998, the claimant completed his blood-collecting duties by 7:20 a.m., and was not scheduled to do any additional off-site blood collecting until the following morning at 6:30 a.m. He arranged to have Triumph Auto Glass fix his car window while he was at work. At approximately 11:30 a.m., a repairman came to the hospital, spoke with the claimant about the repairs, and went to the Orchard Street garage to work on the window. Shortly thereafter, as the claimant was preparing to take a lunch break in the hospital cafeteria, he realized that a bracket from his car window was resting in one of his pockets. He punched out for lunch at 11:59 a.m., and exited the hospital via the George Street garage (which is attached to, and maintained by, the hospital). He then attempted to cross Orchard Street close to the Orchard Street garage rather than at one of the corner crosswalks. At 12:04 p.m., the claimant was hit by a car, sustaining injuries.

Following the parties’ submission of a stipulation of facts and their proposed findings, the trial commissioner issued a Finding and Award that deemed the claimant’s injury compensable. In that award, the trier detailed only three factual findings: 1) It was necessary to cross Orchard Street in order for the claimant to reach the hospital parking lot, and the claimant was reasonably where he might have been when he was struck by a car; 2) in bringing the bracket for his car window to the mechanic, the claimant was performing an activity incidental to his employment at the time he was hit by the car, as he used his own vehicle for work purposes; and 3) the claimant’s action was of mutual benefit to both himself and his employer, as the broken window “exposed the car and the blood samples carried in it to vandalism, harm, theft or other damage potentially injurious to patients’ health and welfare.” The trier’s conclusion of compensability rested on that foundation. The respondent has appealed his award to this board, claiming that the trier neglected to consider material undisputed facts in his decision, and that he drew legal inferences that are unsupported by the set of stipulated facts.

In order to recover for an injury under the Workers’ Compensation Act, a claimant must prove that the injury is causally connected to his employment. Spatafore v. Yale University, 239 Conn. 408, 417 (1996). This connection is established by satisfying two legal criteria: that the injury arises out of his employment, and that it occurs in the course of his employment. Id., 417-418; Davis v. State/University of Connecticut, 3822 CRB-2-98-5 (Aug. 17, 1999). The former requirement relates to the origin and cause of the accident that led to the injury, while the latter relates to the time, place and circumstances of the accident. Mazzone v. Connecticut Transit Co., 240 Conn. 788, 792 (1997). “Lunchtime injury” and “deviation” cases such as this one essentially concern the latter criterion. See, e.g., Mazzone, supra; Kish v. Nursing & Home Care, Inc., 248 Conn. 379 (1999); McNamara v. Hamden, 176 Conn. 547 (1979); Davis, supra. Thus, the question we must answer is whether the agreed-upon facts establish that the claimant’s accident took place within the period of his employment, at a place he may reasonably have been, and while he was reasonably fulfilling his employment duties or doing something incidental to them. Kish, supra, 383; Mazzone, supra, 793.

We know from the stipulated facts that the claimant had planned to eat his lunch in the hospital cafeteria when he realized that he had forgotten to give the glass repairman a bracket from his pocket. He then “punched out” for lunch, and walked through the hospital and the George Street garage toward the Orchard Street garage, all of which are under the control of the hospital. Due to the location of the garage, he needed to cross Orchard Street in order to get there. He was struck by a car while walking directly across Orchard Street toward the parking garage, and he was not using a crosswalk at the time.

Under these facts, and nothing more, we would have to conclude that the claimant’s injury occurred while he was constructively on the employer’s premises for the purposes of workers’ compensation. We have held in prior cases that “an employer parking lot maintained for the convenience of employer and employee is an extension of the employment premises;” Chavarriaga v. Pathmark, 5 Conn. Workers’ Comp. Rev. Op. 16, 363 CRD-7-84 (March 24, 1988); and that the requirement that the employee be in a place that he “may reasonably be” does not mandate that the employer legally own said place. Russo v. Stop & Shop Companies, Inc., 4002 CRB-6-99-3 (March 22, 2000); Leblanc v. Aramark Corp., 3693 CRB-2-97-9 (Nov. 24, 1998); Bogrette v. Merriam Motors, 3538 CRB-8-97-2 (July 22, 1998). In Russo, for example, the claimant slipped and fell in a parking lot contiguous to the premises of her employer, where she and other employees customarily parked with the employer’s acquiescence, and to the employer’s benefit. Her injury was held to have occurred in the course of her employment, even though her employer did not maintain the adjacent parking lot. Here, the claimant had to cross a street to get to an employer-maintained parking garage, i.e., its extended premises, where an injury would presumably have been compensable. His employer directed him to park in that garage, and charged him a fee for his parking pass. We do not believe that he briefly “phased out” of his employment period while he was crossing the public street to get to that parking garage, even though the employer did not have actual control of the street’s conditions. One cannot access that garage without first crossing Orchard Street.

The respondent vehemently argues in its appellate briefs that the claimant’s failure to use a crosswalk completely changes the nature of his conduct, as he was not in a place where he reasonably should have been at the time of his accident. We have held, however, that the failure of an employee to use a crosswalk while crossing a street on the employer’s premises does not per se constitute an unreasonable act. Davis v. State/University of Connecticut, 4212 CRB-2-00-3 (June 8, 2001). Additional evidence would be necessary to demonstrate that a claimant was taking an unwarranted risk in failing to use a crosswalk, or that the employer had not implicitly acquiesced to the practice of crossing Orchard Street at a convenient point where there happened to be no crosswalk. We also cannot presume that the presence of crosswalks at the corners of Orchard Street and the two streets running perpendicular to it is intended to protect pedestrians from the dangers of crossing Orchard Street directly in front of the parking garage, rather than pedestrians who are walking down Chapel Street and George Street, wishing to cross to an opposite corner. Id. The employer offered no such evidence, relying instead on the general prohibition in § 53-182 C.G.S. against failing to obey the directions of a pedestrian control, signal or marking while using a public street. There is no proof that the claimant either committed an infraction by violating that law in this instance, or that such a violation would constitute willful misconduct of the sort that would take the claimant’s actions outside the scope of his employment pursuant to § 31-284(b). Thus, the claimant’s admission that he was not using a crosswalk at the time of his injury does not change our legal analysis here.

Our determination that the claimant was functionally on his employer’s premises at the time of his injury is highly significant under Mazzone, supra. There, our Supreme Court held that the temporary suspension of a claimant’s work period for a permitted lunch hour does not normally break the continuity of employment. “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 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, Workmen’s Compensation (1996), § 21.21 (a), pp. 5-6. Off-premises injuries incurred during an unpaid lunch break, meanwhile, are considered outside the scope of employment unless the claimant’s actions can be shown to have benefited the employer in some fashion. Spatafore, supra, 421.

Analyzing the claimant’s actions here, it is stipulated that he intended to eat lunch in the hospital cafeteria when he realized that he needed to walk to the parking garage, also on the employer’s premises, to give a bracket to a window repairman. En route to the garage, he was struck by a car. We do not believe that it would be consistent with our Supreme Court’s interpretation of the law in Mazzone, supra, to treat this set of rather incidental actions any differently than the actions of the claimant in Mazzone, who was injured while taking an unpaid lunch break in an out-of-service bus parked on his employer’s premises. The employer has never suggested that it took some action to instruct its employees not to cross Orchard Street outside of the corner crosswalks, and we have no basis upon which to conclude that the claimant’s employer did not approve of or acquiesce to his entering the parking garage during his lunch hour. Further, the claimant used his car for work-related purposes on a daily basis, suggesting that the hospital derived some small benefit from having its windows function properly. Therefore, under the stipulated facts and our Supreme Court’s decision in Mazzone, we must conclude that the claimant’s injury occurred during the period of his employment, while he was doing something incidental to his employment, and while he was at a place that he may reasonably have been.

Accordingly, we affirm the trial commissioner’s decision.

Commissioners George A. Waldron and Ernie R. Walker concur.

Workers’ Compensation Commission

Page last revised: December 21, 2004

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