CASE NO. 4696 CRB-1-03-7
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JUNE 23, 2004
FOX HILL NURSING & REHABILITATION CENTER
LIBERTY MUTUAL INSURANCE COMPANY
The claimant was represented by Lawrence S. Brick, Esq., 433 South Main Street, Suite 102, West Hartford, CT 06110.
The respondents were represented by Nicone Gordon, Esq., Law Offices of Nancy Rosenbaum, 655 Winding Brook Drive, Glastonbury, CT 06033.
This Petition for Review from the June 24, 2003 Finding and Award of the Commissioner acting for the First District was heard January 23, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White and Charles F. Senich.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondents, Fox Hill Nursing and Rehabilitation Center and Liberty Mutual Insurance Company, have appealed from the June 24, 2003 Finding and Award of the Commissioner acting for the First District. We reverse the decision of the trial commissioner.
The pertinent facts are as follows. The claimant a licensed nurse worked for the respondent Nursing & Rehabilitation Center as a supervisor of the nursing unit. Additionally, she was charged with ensuring that quality care was rendered to the patients of the facility. The claimant worked 46 to 50 hours per week earning $24.00 per hour for the first 40 hours and $36.00 per hour thereafter. On April 3, 2002 the claimant was scheduled to work a normal eight-hour work shift which started at 7:00 a.m. The claimant testified that she usually came to work between 6:00 a.m. and 6:15 a.m. in order to set up the paperwork for her shift, but she was not paid for any time prior to 7:00 a.m. According to the claimant, on this day there was a shortage of employees working on the shift and the claimant was required to execute tasks that were typically performed by the Certified Nurses Aids. She testified that because of the extra work she did not take a lunch break during her eight-hour shift, however, she did take several cigarette breaks. At approximately 2:00 p.m., towards the end of the claimant’s shift, the Assistant Director of Nurses approached the claimant and asked the claimant whether she would be willing to work an additional eight-hour shift. The next shift needed a licensed nurse to be on duty in order to meet state laws for nursing homes. The claimant agreed to work the next shift from 3:00 p.m. until 11:00 p.m.
The claimant did not take a break between the two shifts. Approximately five hours into her second shift, the claimant became extremely hungry and needed something to eat. She testified that she felt she needed something more substantial to eat than the candy or juices available in the vending machines. With approval from her supervisor, the claimant went to pick up a pre-ordered sandwich at a local restaurant. She estimated the trip would take no more than five minutes. Prior to leaving the facility, the claimant handed over her nursing keys to her supervisor. Although company policy required the claimant to punch out, she failed to do so as she was in a rush to pick up her sandwich. On the way back from picking up her sandwich the claimant was involved in a motor vehicle accident which caused injuries to her cervical, thoracic and lumbar regions.
The trial commissioner found the claimant “acted in a reasonable and necessary manner both for her own sustenance and to maintain her ability to discharge her duties.” Findings, ¶ 28. He found the short distance of the trip, the fact that the sandwich was pre-ordered and the fact that she intended to be away for about five minutes, “all contribute to the continuum of her work activities during the scope of her employment.” Findings, ¶ 29. The trial commissioner found “the claimant had been asked by her employer to work the 2nd shift and indigenous to her working was the fact that she would need to get some nourishment.” Finding, ¶ 30. He found that the claimant’s “brief exit from the place of employment to retrieve a sandwich was found to be a benefit to the employer.” Findings, ¶ 31. Based on the circumstances of the case the trial commissioner found “while in the course of her employment and arising out of her employment, the Claimant was involved in a motor vehicle accident causing her to sustain neck and back injuries.” Findings, ¶ A. He, therefore, awarded her temporary total disability benefits and ordered the payment of reasonable and necessary medical bills.
The respondents have appealed this award. The respondents contend the claimant was not injured in the scope and course of her employment and therefore, this case should be dismissed. A claimant has the burden of proof to establish that his or her injury is causally connected to their employment. Spatafore v. Yale University, 239 Conn. 408, 416 (1996). The injury needs to arise out of a claimant’s employment which relates to the time, place and circumstances of the injury. Spatafore, supra, 416. “Proof that the injury occurred in the course of employment means that the injury must occur (a) within the period of the employment; (b) at the place the employee may reasonably be; and (c) while the employee is reasonably fulfilling the duties of the employment or doing something incidental to it.” Spatafore, supra, 418. Whether a specific injury meets these factors is a factual determination. Kaplan v. State/Dept. of Health Services, 14 Conn. Workers’ Comp. Rev. Op. 296, 2012 CRB-1-94-4 (September 11, 1995); Davis v. State/University of Connecticut, 3822 CRB-2-98-5 (August 17, 1999).
An injury that occurs off an employer’s premises during an unpaid lunch break is normally considered outside the scope of employment unless it can be proven that the claimant’s actions benefited the employer. Spatafore, supra, 421; Davis, supra. In Spatafore, the court stated “when an employee with fixed time and place of work has left the premises for lunch, he is outside of the course of his employment if he falls, is struck by an automobile crossing the street, or is otherwise injured.” Spatafore, supra, 421.
An off-premise injury may be deemed work-related if there is evidence of employer benefit. Id., Davis, supra. It is the trial commissioner’s responsibility to determine whether a claimant’s injury arises out of and in the course of employment. However, that determination must be consistent with established legal precedent. There is a “need for a consistent approach to the question of whether certain types of injuries are work related.” McNamara v. Hamden, 176 Conn. 554, 547 (1979).
The claimant has cited Mazzone v. Connecticut Transit Company, 240 Conn. 788 (1997) in support of the Finding and Award. Although Mazzone does stand for the proposition that eating lunch and similar acts which are reasonably necessary to an employee’s comfort are incidental to employment, this reasoning only applies where an injury occurs on the employer’s premises. The injury in Mazzone occurred in a service bus parked on the respondent’s premises. As the injury in this case occurred on the public road Mazzone is inapplicable.
The cases of Kaplan v. State/Dept. of Health Services, 14 Conn. Workers’ Comp. Rev. Op. 296, 2012 CRB-1-94-4 (September 11, 1995) and Renckowski v. Yale University, 11 Conn. Workers’ Comp. Rev. Op. 48, 1292 CRD-3-91-9 (March 18, 1993) are substantially similar to this case. In Kaplan and Renckowski both claimants were injured off premises on a break from work which was taken in order to obtain food and drink. In both cases we held the injuries did not arise out of the course of the claimant’s employment because the injury occurred in the pursuit of the claimant’s personal comfort outside of the employer’s premises. The primary difference between the two cases was that the claimant was on a paid break in Kaplan and an unpaid break in Renckowski. In Renckowski the claimant argued that the fact that she was using her break as a stress reliever due to a pending deadline and the fact that there was no lunchroom on the premises should have weighed in her favor in the determination of the case. We held that these facts were immaterial to the trier’s ultimate determination of whether the injury occurred in the course of the claimant’s employment.
We will not depart from our reasoning in Kaplan and Renckowski in this case. Although the claimant here was working an extra shift, we see no reason to analyze her departure for a food break differently than if she had a worked single shift. The claimant left the premises for no other reason than her own personal comfort. There was no benefit to the employer in this departure. Although we appreciate the fact that the claimant would need to obtain nourishment during the long period of time which she worked, in order to be consistent with case precedent we must find that as a matter of law her injury took place outside of the course of her employment.
Therefore, we reverse the June 24, 2003 Finding and Award of the Commissioner acting for the First District.
Commissioners A. Thomas White and Charles F. Senich concur.