CASE NO. 4254 CRB-7-00-6
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JUNE 21, 2001
NORWALK REHABILITATION SERVICES
CNA INSURANCE CO.
The claimant was represented by Gregory S. Kimmel, Esq., Kimmel & Kimmel, L.L.C., 9 Morgan Avenue, Norwalk, CT 06852-2013.
The respondents were represented by Diane M. Lord, Esq. and Elizabeth B. Zaccardi, Esq., Law Offices of Grant H. Miller, Jr., 29 S. Main Street, Suite 310N, West Hartford, CT 06107-2445.
This Petition for Review from the June 12, 2000 Finding and Award of the Commissioner acting for the Seventh District was heard February 23, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the June 12, 2000 Finding and Award of the Commissioner acting for the Seventh District. They contend on appeal that the trier erred by concluding that the claimant’s injury, which occurred while she was en route to a job assignment, arose out of and in the course of her employment. We find error, and reverse. Also, as the award does not sufficiently address one of the material factual issues, we remand this matter to the trial commissioner for additional findings.
The parties stipulated to the following set of facts. On February 18, 1998, the claimant was employed by the respondent Norwalk Rehabilitation Services (NRS) as a certified Nursing Assistant/Home Health Care worker. She was also employed by Atrium Homecare in the same capacity. Both jobs required her to visit the homes of various patients in order to provide nursing care. On the morning in question, the claimant left her apartment and walked two flights down the stairs to another unit in the same building to tend to Peter Schmidt, a patient of Atrium Homecare. After finishing those duties, the claimant left the building and boarded a bus for the purpose of going to an apartment on Knickerbocker Avenue in Stamford. This apartment was the home of a Mrs. Karwon, who was a patient of the respondent NRS. At approximately 9:20 a.m., the claimant exited the bus and began crossing Hope Street, whereupon she was struck by a motor vehicle and seriously injured.
According to the factual stipulation, NRS would reimburse the claimant for bus fare expended in traveling from one patient’s home to the next patient’s home whenever she happened to see more than one patient in a single day. However, NRS would not reimburse the claimant for bus fare from her home to the dwelling of her first daily patient, nor would it reimburse her for bus fare spent in traveling home from her last assignment. In his Finding and Award, the trial commissioner incorporated these two stipulated findings with a reservation. Citing the claimant’s testimony, the trier determined that it was unclear whether NRS reimbursed the claimant for her travel to Mrs. Karwon’s home, as the claimant never knew what was being reimbursed. Findings, ¶ 25, citing Nov. 5, 1999 Deposition, pp. 20-23.
The trier also found that the claimant rarely went to her employer’s Norwalk office, and that she received her assignments and paychecks at home. She filed her reports from her home, and likewise made most of her communications with the office via telephone from her apartment. Based upon these subordinate findings, he determined that the claimant’s home was “tantamount to a satellite office of Employer.” ¶ 22. He went on to hold that the claimant’s work required her to use the public highways, and found that her boarding of the bus was to the benefit of her employer, as it enabled her to get to her assignment. On the strength of this reasoning, he concluded that the claimant’s injury was compensable, from which decision the respondents have appealed.
Normally, this board is required to apply a very deferential standard in reviewing the factual findings of a trial commissioner. “[T]he quintessence of a trier’s factfinding prerogative is the power to determine the weight of the evidence presented and the credibility of the testimony offered by both lay and expert witnesses.” Goldberg v. Ames Department Stores, 4160 CRB-1-99-2 (Dec. 19, 2000); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). It is not our role to retry cases on appeal, replacing the trier’s findings with our own, because the trier is generally in a far superior position to evaluate the reliability of the parties’ various evidentiary submissions.
The record of the instant case, however, contains no evidence in the form of marked exhibits, and there is no indication that the trial commissioner heard any testimony. Instead, the parties agreed to a set of stipulated facts dated January 12, 2000, and submitted into the record a sealed copy of the claimant’s November 5, 1999 deposition. Where the trier of fact has no occasion to evaluate the credibility of witnesses or to assess the conduct and intent of the parties in light of additional evidence first submitted at trial, the record before the trier can be said to be identical to the record before this board. Therefore, the legal inferences to be drawn from the parties’ stipulation raise questions of law rather than of fact, and the review of this board need not be so deferential. SLI International Corp. v. Crystal, 236 Conn. 156, 163 (1996); Spatafore v. Yale University, 239 Conn. 408, 419 (1996) (conclusions drawn from subordinate facts must stand unless they result from incorrect application of law to facts, or from unreasonable inference drawn from such facts).
In ¶ 25 of his findings, the trier states—contrary to an unambiguous statement in the parties’ stipulation—that it was unclear whether NRS reimbursed the claimant for the cost of her travel to the home of Mrs. Karwon, as the claimant’s deposition indicates that she never knew what was being reimbursed. We agree with the respondents’ contention that the trier erred by making this finding, and by failing to grant the respondents’ request that this finding be deleted from the trier’s decision. See Motion to Correct, ¶ 2. Though the claimant testified that NRS did not demand an accounting of the bus fare she had paid while shuttling between NRS jobs; Deposition, p. 22-23; she also directly stated that they would only cover the fares she incurred while traveling from the home of one NRS patient to another. Id., 20. The claimant’s uncertainty regarding NRS’ methods of calculating reimbursement amounts does not necessarily negate the accuracy of her assertion that NRS’ did not pay for her trip to the home of her first client each morning. In the face of a stipulation that was agreed upon by the parties two months after the claimant was deposed, we hold that said deposition contains no evidence upon which the trier could reasonably have relied to contradict stipulated facts #11 and #12.
This change in the findings is material to our ruling here. It is axiomatic in the universe of workers’ compensation law that a claimant has the burden of proving that her injury arose out of her employment, and that it was sustained in the course of her employment. Mazzone v. Connecticut Transit Co., 240 Conn. 788, 792 (1997); McNamara v. Hamden, 176 Conn. 547, 550 (1979). The former requirement relates to the origin and cause of the accident, while the latter requirement relates to the time, place and circumstances of the unfortunate event. Id. It is the latter criterion that concerns us today. Mazzone, supra, 793. In order for an injury to occur in the course of employment, it must take place “(a) within the period of the employment, (b) at a place where the employee may reasonably be and (c) while he is reasonably fulfilling the duties of the employment or doing something incidental to it.” Dombach v. Olkon Corp., 163 Conn. 216, 221 (1972); Larke v. Hancock Mutual Life Ins. Co., 90 Conn. 303, 308 (1916). As a general rule, an injury sustained by an employee on a public highway while traveling to or from her place of employment is not compensable. Kolomiets v. Syncor International Corp., 252 Conn. 261 (2000); True v. Longchamps, Inc., 171 Conn. 476, 478 (1976). This is because employment ordinarily commences once the claimant has reached her employer’s premises, and because an employee’s means of transportation and route to the workplace are most often the product of her own discretion. Dombach, supra, 222.
There are a number of exceptions to this “coming and going” rule, of which four have been frequently reiterated by our courts and by this board. See Lake v. Bridgeport, 102 Conn. 337, 342-43 (1925). A claimant may be compensated for an injury suffered while in transit “(1) If the work requires the employee to travel on the highways; (2) where the employer contracts to furnish or does furnish transportation to and from work; (3) where, by the terms of his employment, the employee is subject to emergency calls and (4) where the employee is injured while using the highway in doing something incidental to his regular employment, for the joint benefit of himself and his employer, with the knowledge and approval of the employer.” Dombach, supra. The trial commissioner appears to have found that the claimant satisfied two of these exceptions, as her work “required her to use the public highways;” Findings, ¶ 23; and as her boarding the bus was for the benefit of her employer, insofar as she needed to take the bus in order to reach her assigned patients. Findings, ¶ 24.
With regard to ¶ 24 of the Findings, the trier’s application of the “benefit” test in this manner would swallow the entire “coming” portion of the “coming and going” rule. Anyone who boards a train, or sits in a car, or hails a taxicab in order to reach her place of employment would be doing so for the benefit of her employer under this interpretation. Those cases in which the “benefit” test has been applied have most often dealt with travel associated with “dual purpose” business trips and cases in which the primary purpose of a claimant’s travel was uncertain. See, e.g., Dombach, supra; Clark v. Gates GMC Truck, Inc., 12 Conn. Workers’ Comp. Rev. Op. 263, 1528 CRB-8-92-10 (June 2, 1994). Attempts to apply it to cases involving home health care workers who were traveling to their first daily appointments have failed. Dennis-Hoyle v. Omni Home Health Services, Inc., 14 Conn. Workers’ Comp. Rev. Op. 308, 2003 CRB-3-94-3 (Sept. 14, 1995). We likewise hold that the “benefit” test by itself does not legally justify a finding of compensability here.
The exception in ¶ 23, meanwhile, is usually applied to individuals whose jobs consist mainly of traveling on the roadways, often transporting people or goods from one location to another. See Kolomiets, supra (claimant worked as a deliveryman); Ferri v. Double A Transportation, Inc., 3503 CRB-8-96-12 (April 29, 1998) (claimant worked as a van driver). In several recent cases involving home health care workers whose jobs entailed traveling among clients’ homes, this board has not invoked this particular “coming and going” exception. Janeiro v. State/DMR Region 1, 15 Conn. Workers’ Comp. Rev. Op. 282, 2234 CRB-6-94-12 (June 20, 1996) (mental retardation worker injured in client’s driveway while attempting to return home); Dennis-Hoyle v. Omni Home Health Services, Inc., 14 Conn. Workers’ Comp. Rev. Op. 308, 2003 CRB-3-94-3 (Sept. 14, 1995) (nurse’s aide injured en route to her first appointment of day); Irving v. Hoyland, 4 Conn. Workers’ Comp. Rev. Op. 25, 249 CRD-7-83 (March 4, 1987) (nurse’s aide injured en route from client’s home to her own home). Indeed, the relevant facts of this case almost precisely mirror those of the Dennis-Hoyle case, as both claimants were involved in accidents while traveling to the homes of their first patients of the day, and both claimants were regularly reimbursed for travel costs between clients’ homes, but not the cost of traveling from their own homes to the residences of their first daily clients. Where the facts of two cases are sufficiently analogous, the principles of stare decisis normally compel a judicial body to reach similar legal results. Del Toro v. Stamford, 3731 CRB-7-97-11 (Oct. 22, 1999); see also, Ross v. Giardi, 237 Conn. 550 (1996) (stare decisis lends stability and certainty to our case law, which conditions are indispensable to any well-ordered jurisprudential system). Accordingly, we hold that the “coming and going” exception for workers whose occupations require them to use the public highways does not encompass the instant claimant’s job duties.
Our analysis of this case is not yet concluded. In ¶ 22 of his findings, the trial commissioner found that the claimant’s home “was tantamount to a satellite office” of her employer. The respondents also sought to have this finding stricken in their Motion to Correct. The implications of this finding are significant, for if the claimant kept some type of a home office (or otherwise regularly worked at home), her NRS workday may have begun prior to her arrival at the home of her first client. It would follow that her claim would no longer be vulnerable to the “coming and going” exception. We remind the reader, though, that the claimant performed services for Atrium Homecare between 7:00 and 9:00 a.m. on the morning of her accident, which might weaken any argument that she was in the course of her employment with NRS at the time of her injury.
The trial commissioner found that the claimant rarely went to NRS’ office in Norwalk. Instead, she received her assignments by telephone, filed her reports from home and mailed them to Norwalk, and received her paycheck at her apartment. Most of her communications with NRS’ office were made via telephone from her home. Findings, ¶¶ 20, 21. The respondents do not dispute any of these subordinate findings, which were proposed by the claimant, and are supported by statements in her deposition (except for the preparation and filing of reports, as the claimant mentioned only timesheets). The following exchange also took place upon direct examination:
Q: In your apartment that you share with your friend, do you have an office?
A: No, I don’t have an office. Oh, yeah. We had the office downstairs.
Q: I mean in your apartment, an office for you.
A: Oh, no. No.
Q: Do you have any office equipment in your apartment: a computer, a typewriter, a copier?
A: I had a typewriter, but I give it to my nephew.
Q: Did you have one in February of ‘98?
A: No, I didn’t have it then.
Q: Do you have any other office equipment that you would normally see in an office: a copy machine, a fax machine, any of that?
A: No. No.
Q: You do have a telephone, right?
Deposition, pp. 10-11. This colloquy constitutes the most direct discussion in the record of a potential “home office” issue. Notably, the Stipulation of Facts does not contain any information related to the claimant’s possible maintenance of an office in her home.
There are cases in our legal lexicon in which work activities regularly performed at home have assisted claimants in establishing compensable injuries. See, e.g., Tovish v. Gerber Electronics, 229 Conn. 587 (1994), aff’g, 32 Conn. App. 595 (1993), aff’g, 10 Conn. Workers’ Comp. Rev. Op. 133, 1143 CRD-4-90-12 (June 4, 1992) (traveling salesman maintained an office in basement of his home; heart attack suffered while shoveling driveway so that he could make sales calls was found compensable); Genden v. American Airlines, 3419 CRB-5-96-9 (Feb. 9, 1998) (Connecticut jurisdiction over airline pilot’s Chapter 568 claim supported by presence in his home of separate office for airline business). However, neither this board nor any Connecticut court has set forth parameters defining a regular home workplace for the purpose of extending a workers’ compensation claimant’s place of employment to her home. This issue appears ripe for discussion, as it will likely begin to assume a higher profile. Technological advances in communications and computers now allow people to efficiently perform tasks from remote locations on behalf of their employers, and many white-collar workers work at least part-time from their homes rather than in offices and cubicles. This widespread expansion of job activity beyond the employer’s physical premises may require the law to adopt new perspectives regarding the distinction between business and personal time.
As is often the case, much insight concerning the legal issue at bar can be gleaned from the learned commentary in Larson’s treatise on workers’ compensation law. Larson’s identifies three principal indicia of an established home workplace: a regular and substantial quantity of work to be performed at home, the continuing presence of work equipment in the home, and special employment circumstances that make it necessary rather than personally convenient to work at home. 3 Larson’s Workers’ Compensation Law (2000), §§ 16.10, p. 16-27. These criteria are often looked at in lieu of, or in addition to, the existence of a specific assignment that a claimant was planning to work on, or had been working on, at the time that she was injured en route to or from her home. Id. Though the cases cited by the treatise demonstrate that each of these factors was not satisfied in every compensable case, it is hard to imagine that a claimant could prevail on a claim where none of them had been substantially met.
The authors also caution against an insufficiently rigorous application of these tests, highlighting a case involving a school superintendent whose duties included deciding whether to cancel school on account of inclement weather. He had begun his day by making some observations regarding the weather; later, on the way to his office, he slipped on ice and fell. The court awarded benefits, viewing his employment as not being confined to time and place insofar as it involved moving around among schools and performing some work at home. Id., p. 16-29, citing Lang v. Board of Education, 70 S.D. 343, 17 N.W.2d 695 (1945). Larson’s treatise opines:
A decision of this kind gives one the distinct impression of clutching at straws to save an award. Is compensation law prepared to follow up the implications of a decision that professional employees (who all in some degree share the characteristic of doing part of their work at home) may convert virtually their entire day into the “course of employment” by virtue of such trivia as opening the front door to see whether to suspend school on stormy days? Teachers, doctors, lawyers, architects, artists, executives—in fact almost any employee—may have frequent occasion to perform services of some kind at home, often far more substantial than that of looking over the weather. If the coming and going rule is to be subjected to a process of gradual erosion, through the device of finding some tidbit of work performed at home, then in fairness to employees generally the entire doctrine should be scrapped and a fresh start should be made in which all goings and comings are covered. Decisions such as the Lang award may seem commendable in giving relief to the particular victim, but in a larger sense, they are discriminatory, since they result in virtually abandoning the going and coming restrictions for professional and semi-professional employments, largely on a fictitious basis, with little opportunity for carrying the same generous rule over into the realm of physical labor.
Id., pp. 16-29 to 16-30 (Footnote omitted.)
We perceive considerable foresight in these observations. The “coming and going” rule has been a feature of Connecticut workers’ compensation law for many decades, and it is safe to presume that our legislature has long since acquiesced to this judicial interpretation of the “arising out of and in the course of employment” prerequisite for compensable injuries. See Hanson v. Transportation General, Inc., 245 Conn. 613, 618-19 (1998) (once appropriate interval to permit legislative reconsideration of judicial interpretation has passed without corrective action, courts infer legislative acquiescence to established precedent). In fact, the rule has hardened into a legal foundation upon which, and in response to which, our lawmakers have built various exceptions and regulatory clarifications. See, e.g., § 31-275(1), (1)(A), (1)(E); § 7-314b(b); Admin. Reg. § 31-275-1. If we are to now begin the process of weaning ourselves from the “coming and going” rule, the effort to do so should not be a unilateral campaign by the courts of appeal. Rather, the legislature should take the lead role in redefining the traditional scope of employment to account for decentralizing trends in our commercial culture.
In the meantime, we must avoid abrogating the “coming and going” rule via the subtle case-by-case mechanism of broadening “the course of employment” by expanding the boundaries of the workplace and by magnifying the importance of work-related activities performed at the home. Looking at the facts of the claimant’s case, we discern only traces of the “home office” indicia discussed by Larson’s treatise. At the time of her injury, the claimant’s job as a home health care worker for NRS did not require her to report to her employer’s office very often. Therefore, the company mailed her paychecks to her apartment, and telephoned her there to instruct her regarding clientele. This was undoubtedly far more convenient for the claimant than having to report to NRS’ office on a regular basis in order to fill out timesheets, receive instructions and prepare whatever patient reports were necessary, especially since she did not have a driver’s license, and had to rely upon the bus for transportation. Stipulation, ¶ 10. However, whether this made her apartment tantamount to a “satellite office” of NRS—thereby placing her within the course of her employment virtually 24 hours per day—is open to serious question. The amount of work that the claimant did at home does not appear to have been terribly extensive, which may itself explain why she was able to do it there rather than at her employer’s office. As it stands, there is insufficient evidence in the record to justify the comparison of the claimant’s apartment to a satellite office.
This decision represents the first time this board has attempted to reconcile the general subject of “home offices” and telecommuting with our existing workers’ compensation law, and provide some guidance to trial commissioners. Therefore, it is understandable that the record contains little discussion of the degree of the claimant’s work activities at home. We accordingly remand this matter to the trier with instruction that he conduct further proceedings for the purpose of gathering evidence regarding this matter, using the factors cited in Larson’s treatise and discussed above as guidelines (though we are open to the possibility that another, yet-unidentified factor could be relevant as well). The trier should also consider the legal significance of the claimant’s undertaking of nursing care for Atrium Homecare on the morning of her accident, focusing on whether her job assignment at the apartment of Peter Schmidt constituted a deviation from, or interruption of, her employment with NRS to such a degree that her NRS workday would not have “restarted” until she arrived at the home of her first NRS patient. See, e.g., Luciana v. New Canaan Cemetery Assn., 3644 CRB-7-97-7 (Aug. 12, 1998) (claimant was injured chopping wood during lunch break on employer’s premises; injury not compensable, as woodcutting, though permitted by employer, was done by claimant as part of his own personal business endeavor); Nadeau v. J.H. Scelza, Inc., 3903 CRB-6-98-9 (Jan. 13, 2000) (claimant was under direction and control of respondent for one particular project, even though he also owned his own siding business and chose not to be covered under his workers’ compensation policy).
The trial commissioner’s decision is hereby reversed and remanded for further findings consistent with this opinion.
Commissioners George A. Waldron and Ernie R. Walker concur.