CASE NO. 4529 CRB-7-02-5
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JUNE 3, 2003
NORWALK REHABILITATION SERVICES, INC.
CNA INSURANCE COMPANIES
The claimant was represented by Gregory S. Kimmel, Esq., Kimmel & Kimmel, LLC, 9 Morgan Avenue, P.O. Box 2013, Norwalk, CT 06852-2013.
The respondents were represented by Elizabeth B. Zaccardi, Esq., Law Offices of Grant H. Miller, Jr., 55 Capital Boulevard, Suite 210, Rocky Hill, CT 06067.
This Petition for Review from the May 1, 2002 Memorandum of Decision After Remand From the Compensation Review Board by the Commissioner acting for the Seventh District was heard November 22, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the May 1, 2002 Memorandum of Decision After Remand From the Compensation Review Board of the Commissioner acting for the Seventh District. Their appeal challenges the trial commissioner’s finding that the claimant maintained the equivalent of a satellite office in her home, thus averting the application of the “coming and going” rule to an injury that she suffered while traveling from her apartment building to a job assignment. We find error, and reverse the decision of the trial commissioner.
This case was originally the subject of a June 12, 2000 Finding and Award. The parties had therein stipulated that the claimant worked for both the respondent Norwalk Rehabilitation Services (NRS) and Atrium Homecare as a nursing assistant/home health care worker. Both jobs required her to visit the homes of patients. On the morning of February 18, 1998, the claimant walked out the door of her Stamford apartment and descended two flights of stairs to another unit in her building to tend to a patient of Atrium Homecare. After finishing those duties, she left the building and boarded a bus for the purpose of visiting a client of NRS. After disembarking from the bus, the claimant was hit by a car while crossing the street, suffering serious injuries.
NRS was in the practice of reimbursing the claimant for bus fare expended while traveling between patients’ homes, but would not cover the cost of traveling to the dwelling of her first daily patient, or for the cost of returning home at the end of her last assignment. The claimant rarely went to her employer’s Norwalk office, and received her assignments and paychecks at home. She filed her reports from home, and most of her communications to the office were via telephone. The trial commissioner found that the claimant’s apartment was “tantamount to a satellite office of Employer,” and held that her work required her to use the public highways, which made her bus trip beneficial to her employer insofar as it allowed her to get to her assignment. June 12, 2000 Finding and Award, ¶¶ 22-24. He concluded that her injury was compensable.
The respondents appealed that decision to this board, which reversed the trier’s determination of compensability in Labadie v. Norwalk Rehabilitation Services, 4254 CRB-7-00-6 (June 21, 2001). We began by noting the general rule in Connecticut that injuries sustained on public highways during trips to and from one’s place of employment do not occur in the course of that employment. See Dombach v. Olkon Corp., 163 Conn. 216, 221 (1972); Lake v. Bridgeport, 102 Conn. 337, 342-43 (1925). The commonly recognized exceptions to this “coming and going” rule concern (1) work that requires the employee to travel on the highways, (2) instances in which the employer has contracted to furnish or does furnish transportation to and from work, (3) terms of employment that subject an employee to emergency calls, and (4) situations where the employee is doing something incidental to his regular employment, for the joint benefit of himself and his employer, and with the employer’s knowledge and approval. Dombach, supra; Labadie, supra. The trial commissioner appeared to find that the claimant had satisfied the first and fourth of those enumerated exceptions, as he stated that the claimant’s work “required her to use the public highways;” Findings, ¶ 23; and that her boarding of the bus was for the employer’s benefit, as she did so in order to reach the patients who had been assigned to her. Findings, ¶ 24.
In reviewing that finding, we held that the trier’s construction of the “benefit to the employer” test was overbroad, as his interpretation would include “anyone who boards a train, or sits in a car, or hails a taxicab in order to reach her place of employment,” in essence obliterating the “coming” portion of the “coming and going” rule. Labadie, supra. Attempts to apply this exception to cases involving home health care workers who were traveling to their first daily appointments had failed in the past, and we found no reason to diverge from that result. See Dennis-Hoyle v. Omni Home Health Services, Inc., 14 Conn. Workers’ Comp. Rev. Op. 308, 2003 CRB-3-94-3 (Sept. 14, 1995). Next, we explained that the exception for workers who are required to use the public highways primarily applies to individuals whose jobs consist mainly of roadway travel, such as truck drivers and deliverymen. Once again, we observed that this exception had not been invoked in prior cases for home health care workers who traveled among clients’ homes. See Janeiro v. State/DMR Region 1, 15 Conn. Workers’ Comp. Rev. Op. 282, 2234 CRB-6-94-12 (June 20, 1996); Dennis-Hoyle, supra. “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. When the facts of two cases are sufficiently analogous, the principles of stare decisis normally compel a judicial body to reach similar legal results.” Labadie, supra.
We then shifted our analysis to ¶ 22 of the trier’s findings, where he had described the claimant’s home as being tantamount to a satellite office of NRS. This finding had significant implications, as the presence of a legitimate home office might imply that the claimant’s workday began prior to arriving at the home of her first client, thereby negating the effect of the “coming and going” exception (setting aside for a moment the fact that the claimant performed services for Atrium Homecare between 7:00 and 9:00 on the morning of her accident). The claimant had testified that she did not have a personal office in her apartment with equipment such as a computer, typewriter, copier, or fax machine, and the Stipulation of Facts contained no information related to the possible maintenance of a home office. As no prior case law had set forth parameters defining a regular home workplace for the purpose of extending a claimant’s place of employment to her home, this board turned to Larson’s treatise on workers’ compensation law for guidance in this matter.
We continued by explaining as follows:
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.
. . . [W]e 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. . . . However, whether this made her apartment tantamount to a “satellite office” of NRS . . . 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. . . . We accordingly remand this matter to the trier with instruction that he conduct further proceedings for the purpose of gathering evidence regarding [the claimant’s work activities at home], 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).
Labadie, supra. The trier’s decision was thus reversed and remanded for additional findings as instructed.
On remand, the trier conducted another formal hearing on October 24, 2001, at which the claimant testified. He then prepared a Memorandum of Decision After Remand dated May 1, 2002, in which he listed several issues for determination, including whether a satellite office existed in the claimant’s home, whether her job responsibilities with Atrium Homecare on the morning of her accident constituted a deviation from or interruption of her employment with NRS, and whether she was injured while using the highways in doing something incidental to her regular employment for the joint benefit of herself and her employer. Turning first to the satellite office issue and the three indicia discussed in Larson’s treatise, the trier cited the claimant’s testimony that she did about 15 minutes of office work at home during a month’s time, and found that this did not constitute a “substantial quantity of work.” Next, he addressed the “continuing presence of work equipment in the home” indicator. Though no such paraphernalia were present, he reasoned that the respondent would have had no need to install equipment in the claimant’s home had it intended to set up an office there, given the small tasks she performed at her residence (filling out reports and timesheets, and making phone calls).
With regard to the presence of special employment circumstances that necessitated working from home as opposed to merely serving the claimant’s personal convenience, the trier found that this criterion was not readily determinable given the facts of this case. “However, [the] CRB points out that cases cited by the treatise demonstrate that each of the three indicia was not satisfied in every compensable case.” Memorandum of Decision, p. 3. The trier then determined that the claimant had never left the premises of her apartment building when she went downstairs to see Mr. Schmidt, the Atrium client. Because she remained on-premises, the trier reasoned that no deviation of any consequence occurred from her NRS employment. The trier thus left intact his original finding of compensability. The respondents have again appealed that decision, along with the denial of their Motion to Correct.
A trial commissioner indisputably possesses a good deal of factfinding discretion in determining the facts of a workers’ compensation case, and his factual findings are entitled to substantial deference on appeal. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (Oct. 23, 2002); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). This includes a determination as to whether a claimant’s injury arose out of and in the course of her employment. Kolomiets v. Syncor International Corp., 252 Conn. 261, 269 (2000). In deciding whether a given set of circumstances is sufficient to establish the existence of a satellite office at a claimant’s residence, however, one must have in mind some meaningful legal threshold that sets physical, temporal and situational boundaries on those events that are deemed to arise out of and in the course of one’s employment. The parameters of that threshold and the potential labeling of an employee’s residence as a “home office” are not mere questions of fact, for they define the legal consequences of various factual scenarios such as the one in this case. Insofar as they posit questions of law, this board has the authority on review to address the standards used in categorizing a claimant’s home as an extension of the workplace without deferring to the trial commissioner’s interpretation of those standards.
In order for an injury to be compensable, it must arise out of and in the course of employment. Mazzone v. Connecticut Transit Co., 240 Conn. 788, 792 (1997). When an injury takes place away from premises that are controlled by a claimant’s employer, a greater degree of scrutiny is often necessary in order to determine whether a claimant’s injury took place within the period of employment, at a location where she may reasonably have been, and while she was reasonably fulfilling employment duties or doing something incidental to her employment. See Kish v. Nursing Home & Care, Inc., 248 Conn. 379, 383 (1999); Luddie v. Foremost Ins. Co., 5 Conn. App. 193, 196 (1985). There is an inherent overlap between personal and work-related activities when one begins to address the matter of employees who perform work at home, and the nature of the activities being performed at the time of injury becomes more important in deciding whether an injury sustained at one’s own residence is work-related. Philosophically, a common element exists among compensable cases involving home offices and compensable cases involving the “coming and going” exception discussed in Dombach, supra: such injuries must be suffered while an employee is in the process of doing something that benefits his employer.
Here , a debatable “satellite office” status has been bestowed upon the claimant’s apartment building, thus grafting a more complex identity onto what is ostensibly a “coming and going” case. As our Supreme Court explained long ago in Lake, supra, it is 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; nor do the risks incidental to travel on such highways ordinarily arise out of their employment. This is so because the ordinary workman . . . uses the highways as the public uses them, because he must, and not because his employer by the terms or implications of his contract of employment has the right to require him to use them at the employer’s will.” Id., 342-43. The exceptions to that rule all involve situations in which the employee can be presumed to be acting in the employer’s interest, such as work that requires the employee to travel on the highways, or situations where the employer has furnished transportation to and from work.
Similarly, it is inherent in the notion of a home office that the employer is benefiting in some way from the claimant’s performance of work-related duties. However, if a claimant were at her residence and engaged in purely personal activities at the time of an injury, the fact that an office exists in the home would not by itself render that injury compensable. Consider a case such as McNamara v. Hamden, 176 Conn. 547 (1979), where the claimant, a public works department employee, was injured playing ping-pong five minutes prior to the start of his work day using equipment that had been purchased by town employees and placed in a garage on the employer’s premises. The town had sanctioned this practice, regulating playing time to half-hour periods before and after work and during lunch. Initially, a trial commissioner had dismissed the claim on the ground that the employer did not benefit from either the ping-pong table itself or its employees playing the game. In reversing that ruling, our Supreme Court articulated the following rule: “If the activity is regularly engaged in on the employer’s premises within the period of the employment, with the employer’s approval or acquiescence, an injury occurring under those conditions shall be found to be compensable.” Id., 556.
In a “home office” case, it is difficult to imagine that an injury suffered by a claimant while playing ping-pong at his residence would be found compensable. Seldom would one need to obtain the approval or acquiescence of one’s employer prior to engaging in recreational activities in one’s own home. Thus, at one’s own residence the need to separate work-related activities from non-work-related activities becomes far more apparent, and the scope of those activities that may be considered incidental to employment is not only narrower, but also heavily dependent on whether or not a claimant (1) has begun his workday and (2) is in the process of doing something employment-related at the time the injury occurs. See Tovish v. Gerber Electronics, 32 Conn. App. 595, 605 (1993), cert. improvidently granted, 229 Conn. 587 (1994)(salesman with home office had already begun his workday when he suffered heart attack while clearing driveway of snow); note also Admin. Reg. § 31-275-1 (defining “preliminary acts” and “acts in preparation for work,” which are not in the course of one’s employment under § 31-275(1)(E) unless undertaken at express direction or request of employer). A claimant who frequently did work for his employer at home, but was not in the process of doing such work or something incidental to it at the time an injury occurred, would not be eligible for compensation despite the presence of a home office.
In our prior opinion in Labadie, we directed the trier to gather further evidence regarding the existence of a home office in the claimant’s apartment, using the indicia discussed in Larson’s treatise as guidelines. From the trier’s memorandum of decision, it appears that the only factor mentioned in Larson’s that the trier viewed as being in the claimant’s favor was the “work equipment” indicator. In that regard, he did not find that there was specific work equipment in the claimant’s apartment that was purchased by NRS, or dedicated for NRS use, or paid for on an as-used basis by NRS. Rather, he found that it would have been unnecessary for the respondent to buy special equipment in order to set her up with a satellite office at home, given the simplicity of her office duties. This, in his view, led to an inference favoring a finding that a satellite office existed at the claimant’s apartment.
The trier’s resolution of this issue functionally placed the burden of proof on the respondent to prove that the claimant did not maintain such an office. The evidence and the trier’s findings showed that the claimant did an insubstantial amount of work at home, was not directed by her employer to do this work at home, was not paid for that time, and had no identifiable special circumstances that made it necessary for the employer’s work to be performed in her home. In such a case, the existence of a satellite office should not be inferred primarily from the fact that, had such an office existed, the claimant would have needed no special equipment in order to do her job. A more concrete physical presence would be necessary to constitute affirmative proof of this disputed fact.
Because the claimant rarely went to her employer’s Norwalk office, she argues that she can be compared to a traveling salesperson, an outside worker or an employee working at an employer’s satellite office, and compares this case to Tovish, supra. In our view, such a comparison is inaccurate. In Tovish, the decedent was employed by Gerber Electronics as an outside salesman, and maintained in the basement of his Monroe home an office that was used exclusively for Gerber business. His normal routine was to begin his workday by going downstairs to his office and to begin performing work-related activities, as he had done on the day he suffered his compensable heart attack. Id., 597, 606. Here, the claimant did not maintain a dedicated office of any kind in her home, and the work-related tasks she performed there were infrequent and insubstantial. Notably, there is no finding that, on the date of her injury, the claimant engaged in any activity prior to leaving her apartment that was directly related to her job duties, thus triggering the start of her NRS workday. Her activities were consistent with the typical routine that a person follows when he or she is preparing to leave for work. We thus disagree that there was sufficient evidence to support the trier’s conclusion that the claimant’s employer maintained a satellite office in her home, or that she had begun her NRS workday (in the sense contemplated by Tovish) prior to her injury on the morning of February 18, 1998.
Moreover, the trier went on to build heavily upon that tenuous foundation by equating this “satellite office” with the employer’s premises, and then reasoning that the entire apartment building physically constituted said premises, thereby excusing the claimant’s two-hour “diversion” into the home of the Atrium Homecare patient as inconsequential and insubstantial. See Kolomiets, supra. We doubt that a constructive extension of the employer’s premises to the claimant’s entire apartment building can be accomplished via the “home office” rationale, even if one were to accept arguendo that a satellite office existed inside the claimant’s apartment. In our view, the evidence and factual findings do not establish that the premises of the claimant’s workplace could reasonably be deemed to extend beyond the door of her own unit. Neither she nor her employer maintained actual control over the apartment building in which she lived, and the claimant was not under the employer’s constructive control while she was in the building. See Davis v. State/University of Connecticut, 3822 CRB-2-98-05 (August 17, 1999) (“premises” refers to area that is under the care, custody or control of the employer). Further, her performance of services for another employer following her departure from her individual living unit is markedly inconsistent with the notion that her NRS workday had begun prior to that departure. The claimant was not in the course of her employment with NRS while she was tending to Mr. Schmidt, the Atrium Homecare client. She then proceeded to travel directly from Schmidt’s apartment unit to her first NRS assignment of the day, but was injured before arriving at the home of the NRS client. It stretches reason to treat the claimant as having somehow been on duty for NRS from the time she left her home to the time she was struck by a car while crossing the street, and we cannot uphold that finding.
In sum, we do not believe that the claimant adduced sufficient evidence, nor did the trier make sufficient subordinate factual findings, to support either the conclusion that the claimant maintained an established home workplace or the conclusion that she was not diverted from her NRS employment by tending to an Atrium Homecare client for two hours immediately preceding her accidental injury. Accordingly, we reverse the decision of the trial commissioner.
Commissioners Donald H. Doyle, Jr., and Amado J. Vargas concur.