CASE NO. 4998 CRB-2-05-9
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
AUGUST 31, 2006
MOHEGAN SUN CASINO
The claimant was represented by Lori M. Comforti, Esq., of Law Office of Lori M. Comforti, 12 Case Street, Suite 303, P.O. Box 1126, Norwich, CT 06360.
The respondent was represented by Peter D. Quay, Esq., Murphy and Beane, One Union Plaza, P.O. Box 590, New London, CT 06320.
This Petition for Review from the September 9, 2005 Finding and Award of the Commissioner acting for the Second District was heard February 24, 2006 before a Compensation Review Board panel consisting of the commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Ernie R. Walker.
JOHN A MASTROPIETRO, CHAIRMAN. The respondent appeals from the September 9, 2005 Finding and Award of the Commissioner acting for the Second District. In that Finding and Award the trial commissioner concluded that the claimant’s motor vehicle accident giving rise to her claim arose out of and in the course of her employment. The ultimate issue for review is whether the commissioner erred in concluding that the claimant’s motor vehicle accident arose out of and in the course of her employment. The pertinent facts are as follows. The claimant was employed by the respondent as a Coin Service Specialist. On November 5, 2002, the claimant was scheduled to meet with an out of state vendor at the employer’s place of business, a casino. While enroute to the casino, claimant was involved in a motor vehicle accident and sustained injuries. In support of this conclusion the commissioner found that, inter alia; claimant had a home office equipped with various office equipment in which she routinely performed work for the benefit of the employer, and had begun her work day at home prior to her departure to the casino.
Specifically, the trial commissioner found on the morning of the day of the accident the claimant arose early, reviewed the accuracy of drawings in preparation for an impending meeting with the out of state vendor. The claimant departed her home and without deviation proceeded to travel to the casino. Ordinarily, injuries occurring upon a public highway while traveling to and from work are referred to as “coming and going” injuries and are generally not considered as having arisen out of and in the course of employment See e.g., Dombach v. Olkon Corp., 163 Conn. 216 , 222, 302 (1972).
An injury sustained on a public highway while going to or from work is ordinarily not compensable. A principal reason for this rule is that employment ordinarily does not commence until the claimant has reached the employer’s premises, and consequently an injury sustained prior to that time would ordinarily not occur in the course of the employment so as to be compensable. Furthermore, in cases falling within the ordinary rule, the employee’s means of transportation, as well as his route are entirely within his discretion, unfettered by any control or power of control on the part of the employer. Lake v. Bridgeport, 102 Conn. 337, 342-43, 128 A. 782.
However, the courts also recognized exceptions to the general rule:
There are a number of exceptions to the ordinary rule, four of which are pointed out in the Lake case, supra, 343: (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. See McKiernan v. New Haven, 151 Conn. 496, 498, 199 A.2d 695. Id.
Sec. 31-275(1) provides in pertinent part;
Arising out of and in the course of his employment” means an accidental injury happening to an employee or an occupational disease of an employee originating while the employee has been engaged in the line of the employee’s duty in the business or affairs of the employer upon the employer’s premises, or while engaged elsewhere upon the employer’s business or affairs by the direction, express or implied, of the employer, provided. . . . (E) 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 ours.)
The language of the statute is clear. An employer is not liable for acts in preparation of work unless directly requested by the employer. Here the trial commissioner found, “[o]n November 4, 2002 the claimant had taken drawings home and arose early on the morning of November 5, 2002 and reviewed the drawings for approximately forty-five minutes to ensure all changes had been made in preparation for her meeting with the vendor later that morning.” (Emphasis ours.) Finding ¶ O. There is no finding that this was done at the direction of the employer. Thus, we conclude that the trier’s determination that claimant’s motor vehicle accident arose out of and in the course of her employment is derived from a misapplication of the law. We therefore reverse and dismiss the claim.
We think, however, some further discussion is necessary on our part as we believe the conclusion we reach today has far reaching policy implications. The instant matter has some similar factual elements to those we considered in Labadie v. Norwalk Rehabilitation Servs., 4254 CRB-7-00-6 (June 21, 2001) [hereafter Labadie I]. There we were asked to review the legal appropriateness of the trier’s finding that a home health care worker’s home was a satellite office of the employer. The Labadie matter made a number of stops along various appellate levels and it was ultimately determined that the resolution of the matter did not turn on the existence of an office in the claimant’s home. See Labadie v. Norwalk Rehabilitation Services, Inc., 4529 CRB-7-02-5 (June 3, 2003), rev’d, 84 Conn. App. 220 (2004), cert. granted, 271 Conn. 925 (2004), aff’d, 274 Conn. 219 (2005).
The discussion and analysis we applied in Labadie I on the issue of determining the existence of a home office is helpful in our present analysis. The Labadie I panel relied on Larson’s Treatise on Workers’ Compensation Law and its commentary as to the circumstances under which a home office may be determined to be an extension of the employer’s premises. The panel referenced the three prong test outlined in the Treatise. The three prong test suggests an analysis in which a claimant must demonstrate “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.” Labadie I. In the instant matter, the trial commissioner made certain findings relating to the existence of a home office and identifying the home as an extension of the employer’s premises. Among the findings were:
I. In January 2002 the respondent-employer reorganized the way it compensated its employees from shift rated with overtime to hourly with a prohibition on overtime.
J. Prior to January 2002 the claimant could not complete her job responsibilities during her regular work hours and subsequent to January 2002 with the prohibition of overtime routinely and on a daily basis took work home in order to complete and fulfill her job responsibilities.
K. The claimant had a home office equipped with a computer, printer, fax machine, and copy machine which she used on a daily basis to complete her job responsibilities.
L. The claimant’s supervisors were aware that the claimant routinely took work home and did not prohibit or discourage her from doing so, and accordingly, the respondent-employer had knowledge and consented to the claimant’s work at home.
M. The claimant regularly performed a substantial quantity of work at home, had a continuing presence of work equipment in her home, and as a result of her unique job responsibilities and coupled with the change in her compensation to shift rated with a prohibition on overtime, her special employment circumstances made it necessary rather than personally convenient to work at home, thereby categorizing the claimant’s home as an extension of the respondent-employer’s work place.
Finding Paragraphs I–M.
We believe the requirement that “special employment circumstances [exist] that make it necessary rather than personally convenient to work at home” was not satisfied. In Labadie I we commented on the technological advances in the field of personal computers and communications and the concomitant blurring of boundaries between one’s employment and other aspects of one’s life. We also referenced Larson’s commentary and warning as to the erosion of the “coming and going” rule and resulting expansion of the employer’s premises by failing to “rigorously” apply the suggested guidelines as to what constitutes a home office and associated employment related tasks.
Larson’s warning as to the potential dangers of circumventing the “coming and going” rule via judicial/administrative fiat is supported in a number of cases from outside this jurisdiction. In Santa Rosa Junior College v. Workers’ Comp. Appeals Bd., 40 Cal.3d 345 (1985) the court considered a widow’s claim for the death of her husband in a motor vehicle accident while driving from his employer’s premises to his home. The decedent was a college instructor who routinely utilized a part of his home for the purpose of grading papers and other tasks associated with his employment. It was acknowledged that the decedent had an on campus office where his work could have been performed. The court reviewed the factual findings and referenced its own jurisdiction’s recognition of the “coming and going” rule. The court concluded the decedent’s accident did not arise out of and in the course of employment.
The Santa Rosa court noted:
[A] home does not become a second jobsite simply because one’s employment requires long working hours and the employer knows that the employee frequently brings work home. As we observed in Wilson [Wilson v. Workmen’s Comp. App. Bd., 16 Cal.3d 181, 184 (1976)] “[t]he contemporary professional frequently takes work home. There, the draftsman designs on a napkin, the businessman plans at breakfast, the lawyer labors in the evening. But this hearthside activity — while commendable — does not create a white collar exception to the going and coming rule.” (16 Cal.3d at p.185.)
Santa Rosa, supra, p. 356. The court also expressed its concerns for the policy implications of a ruling where the circumstances of such an injury were found compensable.
Would the fact that an employee regularly took work-related materials home suffice to create a second jobsite, or would the employee have to show that he actually worked at home? How would we treat employees who work at home on some evenings but not on others, depending on their personal inclinations? And, of course, new problems of the “frolics and detours” variety would plague the new exception. (Emphasis supplied.)
Id., p. 356-57. See also, Manzo v. Local 76b, 241 N.J. Super. 604 (1990) (union president’s fatal motor vehicle accident occuring enroute from home to union office not compensable despite finding that employee’s home functioned as a second job site and that prior to his departure the employee had been performing union business).
In the instant matter the trier’s conclusion substantially relies on the fact that the claimant’s home was equipped with office machinery, i.e, a computer, printer, fax, and copier. In the not too distant past such home furnishings would be somewhat unique and indicate some portion of a claimant’s home was dedicated to the performance of office work. Given the present day abundance of home computers and affordability of machines that can fax, print, scan and copy, the presence of such equipment in one’s home does not carry the same probative value it may have enjoyed in prior years when determining the existence of a home office and whether the home office conveyed a benefit to the employer. Although we are extremely reticent to displace a commissioner’s factual basis for a conclusion, we believe the trier’s finding fails to accept matters that are within our common knowledge, i.e., the existence of such equipment in one’s home can no longer carry the legal weight and significance accorded in by gone days.
Additionally, there is no question that at the time of the accident the claimant was not being paid by the employer. While the lack of payment per se does not compel a conclusion that the claimant was not within the period of employment at the time of the injury, it is a factor which may be considered. Labadie, supra, p. 234. We believe the trial commissioner’s decision would permit the Workers’ Compensation Act’s expansion to something far closer to a general social insurance policy without the legislature’s promulgation of statutory authority supporting such an outcome.
We therefore reverse and dismiss the instant claim.
Commissioners Nancy E. Salerno and Ernie R. Walker concur.