CASE NO. 4924 CRB-3-05-2
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
FEBRUARY 15, 2006
TALMADGE PARK, INC.
ROYAL & SUNALLIANCE
The claimant was represented by David A. Leff, Esq., Levy, Leff & DeFrank, 129 Church Street, New Haven, CT 06510.
The respondents were represented by Maureen E. Driscoll, Esq., Maher & Williams, 268 Post Road, P.O. Box 550, Fairfield, CT 06824.
This Petition for Review from the January 31, 2005 Finding and Dismissal of the Commissioner acting for the Third District was heard October 14, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Nancy E. Salerno.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the January 31, 2005 Finding and Dismissal of the Commissioner acting for the Third District. She contends on appeal that the trier erred by concluding that her injuries did not arise out of and in the course of her employment. We find no error, and affirm the trial commissioner’s decision.
The claimant was hired as a per diem Certified Nurse’s Assistant by the respondent Talmadge Park, Inc. on or about June 25, 2003. Her work schedule was irregular, as it depended on the respondent’s need for substitute coverage or special patient assistance. According to Dee Ann Venditto, the daytime staffing coordinator, per diem employees were scheduled for shifts only after patients notified the office that they had made appointments that would require transportation and assistance.
On August 5, 2003, the claimant punched in to work at about 7:00 a.m. Venditto testified that the claimant then checked in with Venditto about her work assignment, whereupon she told the claimant she was not needed to work that day, as no requests had been made by patients for special assistance. According to the respondent’s records, the claimant had not been scheduled to work on that date. Venditto also testified that the claimant expressed a desire to stay on the premises in case the nursing care facility needed her help, but Venditto told her that she would not be needed, and should leave the facility.
In contrast, the claimant testified that she had been told in advance by Venditto that she would be needed on August 5, 2003. She also stated that, when she arrived at the facility, she punched in on the time clock, and immediately sat down in the employee break room to have a cup of coffee before checking on her assignment. There is no dispute as to how the claimant’s injury occurred: when she arose from a chair in the break room to get some cream, one of the chair legs caught in a hole in the floor, causing the claimant to fall and injure her head and back. These injuries continue to produce symptoms that require medical treatment. According to Venditto, ten or fifteen minutes after she instructed the claimant to punch out and leave the ward, the claimant told her that she had fallen and hurt herself on the premises. The claimant denied having spoken to Venditto about her injuries.
The trial commissioner found that Venditto’s testimony regarding her scheduling responsibilities was persuasive, and concluded that the claimant mistakenly reported to work on August 5, 2003. The trier then concluded that the claimant’s fall did not arise out of and in the course of her employment, as she rendered no services on that day, nor was she paid for any work performed. The trier accordingly dismissed the instant compensation claim, from which decision the claimant has petitioned for review.
An injury arises out of and in the course of a worker’s employment when the origin and cause of the accident, as well as its time, place and circumstances, are part of the employment or the necessary incidents of it. In order for an injury to arise out of the employment, it must occur in the course of employment, and result from a risk involved in or incident to the employment, or to the conditions under which it must be performed. Hayes v. Total Fulfillment Services, Ltd., 4482 CRB-4-02-1 (February 5, 2003), citing Dombach v. Olkon Corp., 163 Conn. 216, 222 (1972). An injury occurs in the course of employment when it takes place within the period of employment, at a place the employee may reasonably be, and while the employee is fulfilling the duties of the employment or doing something incidental to it. Herman v. Sherwood Industries, Inc., 244 Conn. 502 (1998); McNamara v. Hamden, 176 Conn. 547 (1979); Hayes, supra (injury sustained while rolling up car window in employer’s parking lot occurred in the course of employment, but did not arise out of it).
Here, the dispute centers on whether the claimant was in the course of her employment at the time of her injury, given the subordinate factual findings of the trial commissioner. Although the claimant testified that she had been told to report to work on the date of her injury, the trier specifically credited the testimony of Dee Ann Venditto explaining that the claimant was not scheduled to work on her date of injury. The trier instead found that the claimant had mistakenly reported to the nursing care facility. These findings are based on the trier’s evaluation of evidentiary credibility and cannot be disturbed on appeal. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).1
Based on the trier’s findings, we must agree that the claimant was not within the period of her employment at the time of her alleged compensable injury. The claimant was a per diem employee who was not scheduled to work on the date of her injury, and was unable to prove that she had been called to work in error. There is no evidence that she had other duties to perform for the employer on that day, nor was she present for some other employment-related reason (such as to pick up her paycheck, or to retrieve something from an office or work station). At the time of her injury, her status was closer to that of a member of the public entering the premises as an invitee than it was to a working employee on the day’s payroll. There is also no evidence that the employer acquiesced to, or benefited from, the use of the break room by regular employees who were currently off-duty, or by per diem workers waiting for assignments. Though the act of an employee checking her work schedule would normally be incident to one’s employment duties if it happened during a work day, we would be interfering with an employer’s ability to make its own staffing decisions (and to predict the resulting expenses) if we were to hold that a worker coming in on an off-day to check her work schedule was automatically within the period of her employment, and subject to workers’ compensation coverage for that time.
This situation differs from cases such as McNamara v. Hamden, 176 Conn. 547 (1979), in which an employee’s injury while playing ping-pong on his employer’s premises five minutes prior to the commencement of his work day was held to have occurred within the period of his employment, or Herman v. Sherwood Industries, Inc., 244 Conn. 502 (1998), in which the claimant’s employment was terminated by his employer, and the claimant suffered an injury while retrieving his tool box from the employer’s loading dock on his way off the premises. In both of those cases, the claimant was on his employer’s premises in conjunction with a paid work shift, even though the injuries occurred slightly outside the parameters of the scheduled work day. “Even when an employee is still in the process of coming to or going from work, once he or she is on the premises, whether or arriving a little early, or leaving a little late, this court has found the employee to be within the period of employment.” McNamara, supra, 551. See also, Herman, supra, 509 n. 8 (more difficult question is raised where discharged employee returns to job site to retrieve belongings or pick up a paycheck); Mazzone v. Connecticut Transit Co., 240 Conn. 788, 794 (1997)(employee on unpaid lunch break remained within period of employment).
Whether or not the claimant thought she was supposed to be working on the date of her injury, she performed no services for the respondent on August 5, 2003, and the trier found that the employer had not requested her presence at its nursing care facility. The Workers’ Compensation Act does not empower this board to grant a remedy to workers who are neither within the period of their employment nor fulfilling job-related duties at the time of injury. Such relief would have to come from another forum, via a different legal theory of recovery. Therefore, we affirm the trial commissioner’s dismissal of the instant claim.
Commissioners Stephen B. Delaney and Nancy E. Salerno concur.
1 Another discrepancy in the testimony was not explicitly resolved by the trier. As noted above, the claimant testified that she punched into work, immediately sat down with a cup of coffee in the break room, and then suffered her injury, while Venditto testified that, prior to the occurrence of the injury, she explained to the claimant that she was not scheduled to work that day and that she couldn’t wait around in case extra help was needed. March 10, 2004 Transcript, pp. 12, 18, 33-37; May 18, 2004 Transcript, pp. 9-10. It is not clear whether the trier accepted Venditto’s version of these events, as the trier only cited persuasive her “testimony about her scheduling responsibilities and her explanation of the contents of the daily and weekly work schedules.” Whether or not the claimant’s injury occurred while she was in a “place where she may reasonably be,” i.e., the break room, might depend in part on whether she was told to leave. However, because the claimant here was not injured within her period of employment, nor while she was fulfilling employment duties, it was not necessary for the trier to specifically address this matter in order to conclude that the injury did not arise in the course of the claimant’s employment. BACK TO TEXT