CASE NO. 4836 CRB-1-04-7
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JULY 22, 2005
STATE OF CONNECTICUT/DEPARTMENT OF PUBLIC SAFETY
GAB ROBINS NORTH AMERICA
The claimant was represented by Olga Zargos, Esq., Rome McGuigan, One State Street, Hartford, CT 06103.
The respondent, State of Connecticut/Department of Public Safety was represented by Philip Schulz, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
Jason Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033, represented Anthem Blue Cross/Blue Shield.
This Petition for Review from the July 21, 2004 Finding and Award of the Commissioner acting for the First District was heard December 17, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro, A. Thomas White, Jr. and Charles F. Senich.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondent, State of Connecticut/Department of Public Safety has appealed from the July 21, 2004 Finding and Award of the Commissioner acting for the First District.1 The decision of the trial commissioner is affirmed.
The pertinent facts are as follows. The claimant, Martin Martinez, was under a contract of employment with the respondent-employer on July 4, 2002, the date of the alleged injury. The claimant testified at that time he was covering half of a shift for another State Trooper and the claimant was assigned the position of Patrol Sergeant. The claimant was acting as a member of the Department of Public Safety within the provisions of Article 17 of the contract between the Union and the State of Connecticut. The claimant testified he was responsible for patrolling an area that covered eight towns and his home was within that patrol area. During the shift, which included an unpaid meal period, he was required to stay within his patrol area.
The claimant started his shift at 3:30 a.m. At that time he immediately began patrolling his area and did not go to the barracks. At approximately 6 a.m. the claimant returned to his residence in order to get something to eat. While he was walking down the stairs to the basement to obtain food he slipped and fell injuring his left ankle. He stated that after the incident he went back on patrol and later reported the injury to his supervisor. The claimant was carrying his radio, cell phone and gun at the time of his injury and was available to answer calls as per Article 17(a) of the Union contract.
Lieutenant Patrick O’Hara was the claimant’s supervisor at the time of the incident. He testified that it was permissible for field employees to take their half hour break at home, however, they were required to carry guns at all times and that they are required to respond to incidents at all times of day, which included the break period. Lieutenant O’Hara explained, the employees must carry their radio and walk-talkie during the shift and are not allowed to turn off the radio during the meal break.
The union contract specifically states, “The existing one-half hour unpaid lunch break shall not be counted as time worked. However, during said meal period, Officers must be available to be contacted and dispatched. Patrol Officer’s are to take their meal period within their patrol area and must be similarly available to be contacted and dispatched.” 2 Finding, ¶ 16, Respondent’s Exhibit 5.
The trial commissioner found that the claimant’s injury was compensable. He found that at the time of the accident the claimant was “on duty, within his patrol area, and available for contact and dispatch to protect the publics’ safety.” Findings, ¶ K. He determined that the claimant’s meal break was “reasonable and necessary to his health, comfort, and strength in carrying out his duties as a State Trooper and was/is conducive to the purpose of his employment as a State Trooper.” Findings, ¶ L. The trier found that the claimant’s eating lunch was “incidental to his employment and satisfied the elements of the ‘in the course of employment’ task.” Id.
The law governing eligibility for workers’ compensation benefits involves a two-part test in which the claimant has the burden of proving that an injury arose out of the employment and occurred in the course of the employment. Mazzone v. Connecticut Transit Company, 240 Conn. 788, 792, 793 (1997). Whether an injury arose out of the employment relates to the origin and cause of the accident. Id., 792-93. An injury occurs in the course of the employment when it takes place “(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.” McNamara v. Hamden, 176 Conn. 547, 550-51 (1979) citing Stakonis v. United Advertising Corp., 110 Conn. 384, 389 (1929). Whether a specific injury meets these factors is a question of fact for the trial commissioner. 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).
The respondent appealed the finding and award and contends the trier erred in concluding that the claimant’s ankle injury arose out of and in the course of his employment. The trier made several findings that the claimant’s actions were covered under § Section 31-275(1)(E) C.G.S. See Findings, ¶ C, H, J. The respondent argues that under § 31-275(1)(E) the injury in this case did not arise out of the employment and is therefore not compensable. The term ‘arising out of’ relates to the origin or cause of the injury. Mazzone, supra, 793. However, “it presupposes a causal connection between the employment and the injury.” Herbst v. Hat Corporation of America, 130 Conn. 1, 5 (1943) citing Larke v. Hancock Mutual Life Ins. Co., 90 Conn. 303 (1916). Section 31-275(1)(E) states, “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.” (emphasis added). The respondent argues that the claimant’s actions at the time of the injury were paramount to acts in preparation for work which took place at the claimant’s place of abode, therefore, in its view the injury did not arise out of the claimant’s employment. Further, the respondent asserts that the claimant was not taking his meal break at the express direction or request of the employer and therefore the claimant’s injury does not fall within the exception provision of the statute. Administrative Regulation § 31-275-1(1) specifically defines a “preliminary act” or “acts in preparation for work” as “acts performed prior to the start of the employee’s work day.” The claimant testified that he started his shift at 3:30 a.m. and that he was at his home for about 5-10 minutes when his injury occurred at approximately 6:30 a.m. Findings, ¶ 7. The trial commissioner found the claimant’s testimony credible and persuasive. Findings, ¶ A. The findings indicate that the injury did not occur prior to the start of the claimant’s workday, therefore, § 31-275(1)(E) does not appear to be applicable. Although the trial commissioner based some of his findings on § 31-275(1)(E), we are not troubled by his analysis since we ultimately affirm the trial commissioner’s determination that the injury arose out of and in the course of the claimant’s employment under § 31-275(1). The trier’s analysis of the facts under § 31-275(1)(E) is at most a harmless error.
The respondent also contends that the injury did not occur in the course of the claimant’s employment and that the trial commissioner erred in applying Mazzone, supra, to the facts of this case because the injury in Mazzone took place on the employer’s premises. The respondent cites Spatafore v. Yale University, 239 Conn. 408, 421 (1996) for its contention that the claimant failed to meet the employer benefit test required when an injury occurs off of the employer’s premises and not within the period of employment.
In Connecticut, “an injury sustained on a public highway while going to or from work is ordinarily not compensable.” Dombach v. Olkon Corp., 163 Conn. 216, 222 (1972). This is known as the “coming and going” rule. Id. In Spatafore, supra, the court reviewed a case where an employee was injured while returning to work from a union meeting during an unpaid meal break. The injury occurred on property not owned by the employer. The court explained that under a ‘coming and going scenario’ the claimant has the additional burden of proving that the employer received some benefit from the action that the employee was taking at the time of the injury in order to establish compensability. Id. “This ‘independently convincing association with the employment’ is needed to ‘overcome the initial presumption of disassociation with employment established by the time and place factors.’” Id., p. 422, citing 1A A. Larson & L. Larson, Workmen’s Compensation (1996) § 22.11, p. 5-92. The court in Spatafore, supra, found that the employer did not obtain a sufficient benefit from the employee’s attendance at the union meeting as to make the injury compensable. Id., pp. 427-428.
Here, we believe the trier articulated a sufficient employer benefit as to meet the Spatafore standard. The trier found “the claimant was carrying his radio, cell phone, paper[s] and his gun at the time of the injury and was available to answer calls.” Findings, ¶ F. He was “on duty, within the patrol area, and available for contact and dispatch to protect the publics’ safety.” Findings, ¶ K. The union contract stated that officers must be available to be contacted and dispatched during the meal period. The claimant’s supervisor testified that the claimant was allowed to take his meal break at home, however, he was required to carry his communication equipment and gun so that he could be contacted and dispatched quickly. We think it is reasonable to find that the employer benefited from the claimant’s readiness to be called to action at any moment.
Furthermore, the activity in which the claimant was injured involved eating a meal. Activities relating to the personal comfort of an employee, such as eating a meal or using the lavatory facilities, have been held to be within the scope of the employment. Mazzone v. Connecticut Transit Company, 240 Conn. 788, 795 (1997); Vitas v. Grace Hospital Society, 107 Conn. 516 (1928). In Mazzone, supra, an employee was injured during an unpaid lunch period when he was descending the steps of a vacant bus which was parked on the employer’s premises. Pursuant to the ‘personal comfort’ doctrine the court found the injury occurred on the employer’s premises while the employee was attending to his personal comfort could be compensable if the employer had either approved of or acquiesced to the employee’s presence on the bus during the meal period. Id., p. 796.
As in other cases we have reviewed where an accident took place during a meal break off of the employer’s premises it is unclear whether this case falls within the scope of the “coming and going” cases or whether this case falls under the “personal comfort” doctrine. See, Kaplan v. State/Dept. of Administrative Services, 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). In spite of this, we do not think that the difficulty of making this distinction has an impact on our decision in the case. Kaplan, supra, and Renckowski, supra, are cases where the injury occurred off of the employer’s premises while the claimant was attending to a personal comfort.3 The main distinction between the cases was that the accident in Renkowski took place on a paid coffee break, while, the accident in Kaplan, took place on an unpaid lunch break. In Renkowski, we explained, “injuries involving issues of personal comfort and which occur off the employer’s premises require a stricter scrutiny” when making the determination as to whether the injury occurred “‘while the employee is reasonably fulfilling the duties of the employment or doing something incidental to it.’” Id., citing Stakonis, supra.
Here, the trier found the claimant’s “eating lunch is reasonable and necessary to his health, comfort, and strength in carrying out his duties as a State Trooper and was/is conducive to the purpose of his employment as a State Trooper.” We believe that the factual scenario here clearly indicates that the claimant’s actions benefited the employer at the time of his accident. He was required by contract and the direction of his supervisor to be on call and prepared for dispatch. The employer allowed him to take breaks at home with the restriction that he was still within his patrol area. For these reasons, we believe the commissioner’s finding that the claimant was injured while attending to a personal comfort which was incidental to his employment was reasonable.
The respondent argues the injury cannot be compensable because the claimant’s break was unpaid. In Antignani v. Britt Airways, Inc., 58 Conn. App. 109 (2000), cert. denied, 254 Conn. 911 (2000), the decedent was employed as an airport agent. On the morning of her death she was at the airport on a scheduled day off and planned to make a personal trip as a passenger. She was informed that another employee had called in sick that morning and for this reason she offered to assist with baggage duties and related responsibilities. The decedent died as a result of being struck by the airplane while performing those duties. The record revealed that the employer required employees to volunteer to assist with the employer’s business when the need arose. The volunteer duties were considered as part of the employee’s employment appraisals and were deemed significant when the employee was seeking a promotion. At issue was whether the claimant’s injuries occurred in the course of her employment. The court held the decedent was in fact in the course of her employment when her death occurred. The court explained, “Although it is significant that Antignani was not working on a scheduled workday when her death occurred, facts of an ‘independently convincing association with employment’ may overcome disassociation with employment established by the time . . . factor.” Id., 118, citing Spatafore, supra, 421-22 (Internal quotation marks omitted.) Here we also find that the fact that the claimant was on an unpaid period is not determinative. The actions that the employer required of the claimant during that unpaid period are more important factors to consider when making the determination of whether the injury was causally related to the employment.
The respondent contends that the claimant was not on duty under § 31-275(1)(A)(i) C.G.S. when he fell because he was on an unpaid meal break. In its view, “the failure of § 31-275(1)(A)(i) to address injuries occurring in the employee’s abode creates doubt that such injuries satisfy the requirement that such injuries occur ‘in the course of the employment.’” Respondent’s Brief, p. 12. “Generally, a personal injury sustained at home, or coming from or going to work, is not considered compensable under the Workers’ Compensation Act.” Leonard v. Danbury, 3159 CRB-7-95-9 (April 14, 1997). However, in Connecticut the legislature has seen fit to create a statutory exception to allow police officers portal to portal coverage. Section 31-275(1)(A)(i) C.G.S. states; “For a police officer or firefighter, ‘in the course of his employment’ encompasses such individual’s departure from such individual’s place of abode to duty, such individual’s duty, and the return to such individual’s place of abode after duty.” “The police and firefighter exception is presumably based on the emergency on-call nature of those professions and the urgency with which police and firefighters may be summoned to duty.” Diluciano v. State Military Dept., 60 Conn. App. 707 (2000), cert. denied, 255 Conn. 926 (2001). Although we do not believe that this case technically fits within this portal to portal statute because § 31-275(1)(A)(i) is an exception to the coming and going rule for police officers and firefighters and there is no indication that this statute was intended to exclude injuries that would otherwise be covered, we can infer by the passage of the statute that a police officer’s duties are distinct from employees at large. For this reason, the factual scenarios under which officers are injured merit special consideration. The claimant’s on-call status as a police officer and the potential urgency under which he might have to respond distinguishes him.
The courts have noted the unique nature of on-call police officers’ duties even prior to the passage of the “portal to portal” statute. In Lake v. Bridgeport, 102 Conn. 337 (1925) a police officer had been assigned the special duty that day of patrolling the Strand Theatre in Bridgeport on the day of his injury. As part of any special duty assignment the officer was required to report to the nearest police precinct before going on duty and after going off duty. The officer was injured while crossing the street on the way to the precinct. The court recognized the special nature of being an on-call police officer. “The claimant was acting in obedience to the orders of a superior having jurisdiction to control his movements at the time of his injury. If the summons had been special, it could hardly be claimed that he was not in the performance of his duty in responding to it.” Id., 345 citing Linnane v. Aetna Brewing Co., 91 Conn. 158 (1916). The court explained the fact that the claimant was responding to a general directive “does not lessen its compulsive force, for that was inherent in the claimant’s relation to his superiors, who had jurisdiction to control his movements by directing him to proceed to any given place within the city limits at any time.” Id. Similarly in this case the claimant was subject to special control of his superiors and could be asked to respond instantaneously.
Given the specific factual findings in this case, that the claimant was an on-call police officer who was required by his employment contract and his supervisor to be available for contact and ready for dispatch at the time of the injury and the fact that the claimant was attending to a personal comfort that was incidental to his employment, we find that the trier’s conclusion that the claimant’s injury arose out of the employment and occurred in the course of the employment is reasonable and we will not overturn these findings on appeal.
The decision of the trial commissioner is affirmed.
Commissioners A. Thomas White, Jr. and Charles F. Senich concur.
1 We note that extensions of time were granted during the course of the appellate process. BACK TO TEXT
2 Although the contract references a “lunch period”, apparently the claimant took this break at approximately 6 a.m. Findings, ¶ 7. The claimant’s supervisor testified that the break did not necessarily have to fall within the time period that most people would consider lunch. Transcript, October 30, 2003, p. 7. BACK TO TEXT
3 In the context of § 31-275 “premises” has been interpreted to mean property which is owned, leased or controlled by the employer and integrally connected with the employer’s business. Flodin v. Henry & Wright Mfg. Co., 131 Conn. 244 (1944). BACK TO TEXT