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Loffredo and Loffredo v. Wal-Mart Stores, Inc.

CASE NO. 4369 CRB-5-01-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 28, 2002

Estate of EVELYN LOFFREDO and BRIAN LOFFREDO, Surviving Spouse of EVELYN LOFFREDO

CLAIMANT-APPELLEE

v.

WAL-MART STORES, INC.

EMPLOYER

and

INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA

INSURER

RESPONDENTS- APPELLANTS

APPEARANCES:

The claimant was represented by Robert Carter, Esq., Carter & Civitello, Woodbridge Office Park, One Bradley Road, Woodbridge, CT 06525.

The respondents were represented by Deidre Lewis, Esq., and Nicholas Varunes, Esq., Law Offices of Kenny, Brimmer, Melley & Mahoney, 5 Grand Street, Hartford, CT 06106.

This Petition for Review from the February 8, 2001 Finding and Award of the Commissioner acting for the Fifth District was heard October 5, 2001 before a Compensation Review Board panel consisting of Commissioners George A. Waldron, Ernie R. Walker and A. Thomas White, Jr.

OPINION

GEORGE A. WALDRON, COMMISSIONER. The respondents have petitioned for review from the February 8, 2001 Finding and Award of the Commissioner acting for the Fifth District. In that decision, the trial commissioner concluded that the decedent’s slip and fall injury which occurred on her walkway, arose out of and in the course of her employment as she was responding to an emergency call from the respondent employer. In support of their appeal, the respondents contend that the trial commissioner erred in concluding that the decedent’s injury arose out of and in the course of her employment, as she was still on property (her walkway) owned and maintained by herself.

The trial commissioner found the following facts. This action was brought on behalf of the estate of Evelyn Loffredo, and by Brian Loffredo as the surviving spouse. The decedent was employed by the respondent employer as a manager of the employer’s Torrington store. One of the decedent’s responsibilities as manager was to attend to and investigate the circumstances surrounding the store’s alarm system being set off. To notify the decedent of the alarm being set off, there was a connection from the alarm company to her house. The decedent knew the code to deactivate the alarm. At approximately 10:15 p.m. on January 30, 1997, while the decedent was asleep, she was alerted to the alarm being set off in the Torrington store. As the decedent lived in Naugatuck, which was several miles from the store, she would have to drive there. She “got up, dressed and left her home and undertook the trip to Torrington.” Findings, ¶ 8. On her way to her car, she slipped and fell on the icy walkway, fracturing her right ankle. The decedent was brought to the hospital and treated for her ankle. Her subsequent death on February 18, 1997, was due to a pulmonary embolism which resulted from the fractured ankle.

In order to prevail in a claim for Workers’ Compensation benefits a claimant must prove that the injury for which she seeks compensation arose out of and in the course of the employment. As our Supreme Court reiterated in Kolomiets v. Syncor International Corp, 252 Conn. 261, 267 (2000):

“In order to establish that [the] injury occurred in the course of employment, the claimant has the burden of proving that the accident giving rise to the injury took place (a) within the period of the employment; (b) at a place [the employee] may reasonably [have been]; and (c) while [the employee was] reasonably fulfilling the duties of the employment or doing something incidental to it. . . . Mazzone v. Connecticut Transit Co., 240 Conn. 788, 793 (1997).” (Internal quotation marks omitted.) Kish v. Nursing & Home Care, Inc., 248 Conn. 379, 383 (1999). (citations enhanced)

Additionally, our Supreme Court explained in Dombach v. Olkon Corporation, 163 Conn. 216, 222 (1972):

An injury sustained on a public highway while going to or from work is ordinarily not compensable. . . . There are a number of exceptions to the ordinary rule, four of which are pointed out in the Lake case, 343 [Lake v. Bridgeport, 102 Conn. 337 (1925]: (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. (citations omitted)

The respondents in the instant case argue that even if the decedent’s injury falls under an exception to the “coming and going” rule, nevertheless it is not compensable as it occurred in her own driveway rather than on the public highway. We will first address the respondents’ argument regarding the Motion to Correct. Specifically, the respondents argue that the trier erred in denying their Motion to Correct as to Finding ¶ 4 which states: “To notify the decedent of the alarm being set off there was a connection from the alarm company to her house.” The respondents argue that there was no evidence which indicated that the alarm system was connected to the decedent’s house, and thus the respondents requested that this finding be changed to: “The decedent was the first person on a list of authorized management personnel to be contacted by Alarm Central when an alarm was triggered.” (Respondents’ Brief p. 7). The respondents explain: “Further stipulated facts establish that after the alarm was routed to ‘Alarm Central’ in Arkansas, personnel at ‘Alarm Central’ telephoned [the decedent] reporting the alarm as she was the first on a list of management to contact in the event of an alarm.” Id., 8.

This board has noted on prior occasions:

On review of the denial of a Motion to Correct, this board may not alter a commissioner’s Findings unless they are unsupported by the evidence or unless they fail to include admitted or undisputed material facts. Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 152, 1608 CRB-1-92-12 (Feb. 6, 1995). A Motion To Correct also may be denied properly where the corrections are immaterial because the outcome of the case would not be altered by the substituted findings.
Fusco v. J.C. Penney Company, 1952 CRB-4-94-1 (March 20, 1997), citing Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994).

In the instant case, whether the alarm was connected to the decedent’s house, or whether the telephone call regarding the alarm came to the decedent from the alarm company, is not material to the case at hand and would not compel a different conclusion by the trial commissioner. Either way, it was within the discretion of the trial commissioner to find that the decedent had been “alerted by the store alarm” and was “responding to an emergency.” Findings, ¶ 24. Thus, we uphold the trier’s denial of the respondents’ Motion To Correct.

Next, we will address the respondents’ contention that an injury on private property may not be covered under the exclusion of preliminary acts under § 31-275(1)(E) and § 31-275-1. Section § 31-275(1)(E) was added pursuant to Public Act 95-262, effective July 6, 1995, to provide that “a personal injury shall not be deemed to arise out of the employment if the injury is sustained: (i) At the employee’s place of abode and (ii) while the employee is engaged in a preliminary act or acts in preparation for work unless such act or acts are undertaken at the express direction or request of the employer.” Section 31-275-1(1) provides that “‘A Preliminary Act’ and ‘Acts in Preparation For Work’ mean acts performed prior to the start of the employees work day. . . .” (Emphasis added). In Labadie v. Norwalk Rehabilitation Servs., 4254 CRB-7-00-6 (June 21, 2001), we explained that “the [coming and going] rule has hardened into a legal foundation upon which, and in response to which, our lawmakers have built various exceptions and regulatory clarifications.” Id., citing § 31-275(1), (1)(A), (1)(E); § 7-314b(b); Admin. Reg. § 31-275-1.

We have carefully reviewed the legislative history of Public Act 95-262, and conclude that § 31-275(1)(E) was not intended to apply to the exceptions to the “coming and going” rule as set forth in Dombach, supra. Rather, Representative Eberle explained that the legislation “is intended to direct the Workers’ Compensation Commissioner to address through development of regulations the Workers’ Compensation issues that are arising with increasing frequency out of home employment as it becomes more common in our state.” 38 H.R. Proc., Pt. 18, 1995 Sess., p. 6353. Representative Eberle further explained that the “Chair of the Workers’ Compensation Commission can address situations and differentiate between acts that are preparatory and acts that occur at home but are part of the work day.” Id., 6356.

We have long recognized the need to cover the hazards encountered by employees when making emergency trips. Dombach, supra, Lake, supra. In Lake, the court stated that it is “undoubtedly the general rule that employees whose area of employment is within defined limits, are not regarded as in the course of their employment while going to and returning from work upon the public highways. . . .” Id., 342. The court further explained that there are “many exceptions” to this general rule, including when the terms of the employment subject the worker to emergency calls. The court cited Linnane v. Aetna Brewing Co., 91 Conn. 158 (1916), where a fireman was summoned for duty in an emergency, and his exertion caused by hurrying in a heavy snow storm caused pneumonia. Compensation was denied on the basis that the injury could not be definitely located as to time or place (the law at that time), although the “significant point of the case” was that the exposure which occurred on the highway was treated as arising out of and in the course of the employment. Lake, supra, 343.

We now turn to the crux of this case, which is whether the decedent’s fall on her own property may be covered under the emergency call exception to the highway rule. Clearly, in the instant case the trier found that the decedent’s injury satisfied the third exception1 listed by the court in Dombach, supra, specifically: “where, by the terms of his employment, the employee is subject to emergency calls.” Id., 222. Unfortunately, we have found no cases in this state (and the parties have not cited any) which explain whether an injury on one’s own property may be covered under this exception. However, this issue has been examined in Larson’s treatise under the “Special Errand Rule.” See 1 Larson’s Workers’ Compensation Law (2000), §§ 14.05, p. 14-5. The treatise explains:

The special errand rule may be stated as follows: When an employee, having identifiable time and space limits on the employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself.
Id. §§ 14.05[1], p. 14-5.

This special errand rule has been applied to factual circumstances which are similar to the case at hand. For instance, in City of Philadelphia v. Workers Comp. App. Bd., 728 A.2d 431 (Pa. Commw. Ct. 1999), the claimant, an on-call electrician, was injured when he journeyed to the plant to fix an electrical problem, and the court affirmed the holding that he was on a special mission at the time of his injury. Similarly, in Histed v. E.I. Du Pont de Nemours & Co., 621 A.2d 340 (Del. Super. Ct. 1993), the claimant, an instrument technician, was called by her employer to return to the plant due to an instrument break down, and the court applied the special mission exception, noting the inconvenience and urgency involved.

Regarding the point at which the journey begins (and thus an injury is compensable) in a special errand (also referred to as a special mission), Larson’s states: “Since the effect of the special errand rule is to confer ‘portal-to-portal’ coverage on the employee, the question may arise . . . where precisely is the portal?” Larson’s, supra, § 14.05[2]. In this treatise section, it is noted that numerous courts have adopted Larson’s portal-to-portal coverage, but courts have nevertheless grappled with the issue of exactly where the portal begins and ends. For instance, in Powers v. Lady’s Funeral Home, 295 S.E.2d 473 (1982), rev’g 290 S.E.2d 720, the court of appeals agreed that the claimant, a mortician called out at night for an emergency, was entitled to portal-to-portal coverage. Upon his return home, he parked his car on an incline behind his house, and was run over by his car as he walked to the door to his house. Initially, the court of appeals denied compensability, as the claimant had left the public street, citing Charak v. Leddy, 261 N.Y. Supp.2d 486 (1965). The Supreme Court of North Carolina reversed, and found the claimant’s injury to be covered. The court noted: “Equally as well recognized as the general [coming and going] rule is the ‘special errand’ exception. . . which permits coverage of the employee from ‘portal to portal.’” Powers, supra, 475. However, the court did not address the portal-to-portal issue, instead basing its decision on the fact that the employer required the claimant to shower after each call in preparation of the next call.

In the instant case, both parties discuss Charak, supra, in their briefs. In that case, the claimant, an attorney, was going on a special errand for her employer, and was injured when she fell on steps leading from the inner lobby to the outer lobby of her apartment building. The court held that she had not yet left her home, noting that if she had fallen in the street her injury would have been compensable. Id., 487. In contrast, in Bengston v. Greening, 41 N.W.2d 185 (1950), the court held that a claimant’s fall on her own premises upon return from a special mission was covered. In that case, the claimant was found to be on a special mission when asked by her employer to work on a Saturday, not her normal workday, to perform a special task. She was injured on her return when walking from her car to her house, on her own personally-owned premises. The court explained that “the commission was justified in finding from the evidence that the injury arose out of hazards to which the employe (sic) was exposed while on the special mission. . . . Here, employe (sic) was at the return end of her mission, but logically as much within it as if she had fallen on her walk out to the car at its beginning. . . . The errand for the employe (sic) was the occasion of her leaving the house and returning to it.” Id., 186.

Similarly, in Felton v. Hospital Guild of Thomasville, Inc., 291 S.E.2d 158 (N.C.App. 1982), aff’d 296 S.E.2d 297 (N.C. 1982), the claimant was found to be embarking on a special errand for her employer when she fell in her own driveway. The Court of Appeals thus reversed the Commission’s determination that the special mission did not commence until the claimant physically left her property and entered onto the public street. The court did not agree with such a “bright line” test regarding when a special errand commences, explaining instead that “each case must be determined upon its particular fact situation.” Id., 159. The court held that in Felton that the claimant had begun her special errand (going to a bakery for the employer) when she “left the safety of her house and had entered into the hazards of her journey.” Id., 160. The court further explained that its holding was consistent with Charak, supra, because in Charak, the claimant had not yet left the safety of her apartment building.

We agree with the observation made by the court in Felton, supra, that the factual circumstances of each case should be considered in determining when a special errand commences, rather than implementing a “bright line” test such as entry onto a public roadway. This conclusion is supported by the policy considerations behind the portal-to-portal coverage of special errands, specifically, that these trips are made on short notice, often with an element of urgency, under conditions which may be more hazardous than a normal coming and going trip to work.

Here, the decedent was asleep in her bed when alerted that the alarm had sounded in the Torrington store. It was dark, and her walkway was icy. On a normal, planned commute to work, perhaps the decedent or her spouse would have sanded the icy walk, or shoveled any snow as necessary. However, the circumstances of being awaken out of bed to take a single-purpose trip to the employer’s store are of course distinguishable from leaving one’s house for a normal work day. Thus, we find that it was within the discretion of the trial commissioner to find that the decedent’s fall on her walkway was part of the hazards of her special errand, and thus arose out of and in the course of her employment.

Our conclusion that it was within the discretion of the trial commissioner to so find is supported by our supreme court’s acknowledgement that whether an injury arises in the course of the employment constitutes a finding of fact. Specifically, in Kish v. Nursing and Home Care, 248 Conn. 379, 384 (1999) the Supreme noted:

We insulate the work of the commissioner by affording it a substantial quantum of deference. “[T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . [T]he conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Moreover, the fact that the inference may involve an application of a broad statutory term or phrase to a specific set of facts does not result in any greater scope of judicial review.” (Citation omitted; internal quotation marks omitted.) Crochiere v. Board ofEducation, 227 Conn. 333, 347, 630 A.2d 1027 (1993); accord Mazzone v. Connecticut Transit Co., supra, 240 Conn. 792; Spatafore v. Yale University, supra, 239 Conn. 418, [Spatafore v. Yale University 239 Conn. 408 (1996)] (“[t]he determination of whether an injury arose out of and in the course of employment is a question of fact for the commissioner”); Fair v. People’s Savings Bank, 207 Conn. 535, 53940, 542 A.2d 1118 (1988).

The trial commissioner’s decision is affirmed.

Commissioners Ernie R. Walker and A. Thomas White, Jr. concur.

1 The trier denied the Claimant’s Motion to Correct which sought to add facts indicating that the claimant’s trip constituted a business trip undertaken for the benefit of the respondent employer. BACK TO TEXT

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