CASE NO. 5115 CRB-3-06-7
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JULY 3, 2007
KNIGHTS OF COLUMBUS
HARTFORD INSURANCE GROUP
The claimant was represented by Joseph Marotti, Esq., Kolb & Associates, P.C., 49 High Street, East Haven, CT 06512.
The respondents were represented by Frank Ancona, Esq., Law Offices of David J. Mathis, 55 Farmington Avenue, Suite 500, Hartford, CT 06105.
This Petition for Review from the July 17, 2006 Finding and Award by the Commissioner acting for the Third District was heard December 15, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Nancy E. Salerno.
JOHN A. MASTROPIETRO, CHAIRMAN. This appeal addresses a single question. Did an employee sustain an injury “arising out of and in the course of his employment” when she fell down on a public sidewalk between her employer’s parking lot and her place of employment? The trial commissioner concluded this was a compensable injury within the scope of our jurisdiction. The respondent disagrees and has appealed. We conclude the weight of precedent supports the trial commissioner under the facts presented in this case. We affirm his Finding and Award and dismiss this appeal.
There is no dispute that the claimant suffered a fall down injury on the morning of February 18, 2004 while walking between a parking lot on West Water Street in New Haven and the respondent’s office building at Columbus Square. It is also not disputed that the parking lot was owned, operated and maintained by the respondent. Both parties also agree that the claimant was provided by the respondent with free parking at the West Water Street lot. There is also no dispute that one cannot travel between the parking lot and the office building without the use of public streets and sidewalks.
The dispute centers on the time and place of the accident. The respondents point out that the claimant fell down on a public sidewalk owned by the City of New Haven. They also point out the claimant testified that she parked her vehicle at approximately 7:00 a.m. and was not scheduled to start work until 8:00 a.m. The claimant testified that she usually parked early so as to get a good space in the free lot. The injury occurred while she was walking directly to the office building, where she usually met with fellow workers in the company cafeteria until their shift started. She testified she fell down a few minutes after she parked.
The trial commissioner concluded after a November 17, 2005 formal hearing that the Commission had jurisdiction over the injury. He concluded that the claimant was walking on her normal route from the parking lot to the office and was walking along the shortest route available. As the only means to get from the parking lot to the office building was along a public highway the Commissioner concluded the claimant was performing a necessary activity incident to her employment for the joint benefit to her and the respondent and with the respondents’ approval. Therefore, the trial commissioner issued a Finding and Award to the claimant.
The respondents filed a Motion to Correct seeking to add new findings consistent with finding the injury was noncompensable as it was incurred during the course of commuting to work and that the “coming and going” rule barred an award under these facts. They also claim that as the immediate destination of the claimant was the company cafeteria that the injury was sustained in a “social or recreational” activity as defined in § 31-275(16)(B)(i) C.G.S. The trial commissioner denied the proposed corrections and the respondents have appealed to this board based on the same legal theories.
The respondents’ appeal is based on their view that this incident falls directly within the “coming and going” rule as defined in such cases as Dombach v. Olkon Corp., 163 Conn. 216, 222 (1972). “An injury sustained on a public highway while going to or from work is ordinarily not compensable.” Id.1 The present case, however, is not one where the claimant was injured on a public highway prior to reaching premises under the control of her employer, which would place the injury under the general rule in Dombach and outside the jurisdiction of Chapter 568. To the contrary, the trial commissioner concluded the claimant’s evidence established one of the exceptions to the general rule was present: “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.” Id.
Respondents appropriately point out that the claimant bears the burden of proof in a claim for benefits under Chapter 568. See Dengler v. Special Attention Health Svcs., Inc., 62 Conn. App. 440 (2001). The trial commissioner concluded the claimant had met her burden in establishing her injury occurred during an activity which conferred a “mutual benefit” to both her and her employer. We extend a deferential standard of review to this conclusion by the trial commissioner as the “[t]he conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Tovish v. Gerber Electronics, 32 Conn. App. 595, 602 (1993).
The trial commissioner placed great weight on the fact that the respondents furnished free parking at this location to their employees. In examining the concept of “mutual benefit” we take notice that employers frequently offer free parking as a fringe benefit to recruit and retain employees. We also take notice that parking in a downtown location is generally a scarce commodity. The “mutual benefit” concept has been applied to parking lots for over fifty years. “The parking lot was maintained for the mutual benefit of the defendant and its employees, to provide a ready means of access to the plant and a ready means of parking the employees’ automobiles in close proximity to the plant.” Hughes v. American Brass Co., 141 Conn. 231, 233 (1954).
We also find this concept of “mutual benefit” has long been recognized when the employee is injured traveling on a public thoroughfare between two locations controlled by his employer. In 1946 the Connecticut Supreme Court issued its opinion in Kuharski v. Bristol Brass Corporation, 132 Conn. 563 (1946). In Kuharski the claimant was injured crossing the street between two buildings owned by the respondent. At the time the claimant was not at work, rather he was obtaining approval for extra gasoline rations prior to starting his shift.2 The court held “[t]he commissioner was therefore justified in concluding, in effect, that the plaintiff in crossing the street, was in a place where he could reasonably be in furtherance of his employment and the injury arose in the course of his employment.” Id., 566. The court distinguished the Kuharski case from a case relied on by the respondents in this matter, Flodin v. Henry & Wright Mfg. Co., 131 Conn. 244 (1944) as “[i]n the case at bar the plaintiff was not using the street as one of the general public but in reasonably pursuing an incident of his employment. The Flodin case is not controlling.” supra, 567.
We have followed this reasoning in two cases the CRB has addressed in recent years where a claimant was injured in a public thoroughfare between a parking lot and his place of employment. In Russo v. Stop & Shop Companies, Inc., 4002 CRB-6-99-3 (March 22, 2000) the claimant had left work and was injured on a sidewalk on her way to a parking lot customarily used by store employees. We found this to be a compensable injury as “an employer parking lot maintained for the convenience of employer and employee is an extension of the employment premises.” As the claimant “was at a place she may reasonably have been” we determined that “the record, adequately support the trial commissioner’s conclusion that the claimant’s injury arose out of and in the course of her employment.” Id.3
The next year in Cimmino v. Hospital of St. Raphael, 4230 CRB-3-00-5 (September 13, 2001) we reached the same result. The facts in Cimmino are congruent to this case as the claimant was injured crossing a public street in New Haven which was between his place of employment and a parking garage owned by his employer. The claimant had “clocked out” at the time of the accident, but we concluded “[w]e do not believe that he briefly ‘phased out’ of his employment period while he was crossing the public street to get to that parking garage, even though the employer did not have actual control of the street’s conditions. One cannot access that garage without first crossing Orchard Street.” Based on the facts presented the trial commissioner did not find this was a “deviation” case where the claimant was injured off hours and away from his job while on personal business; rather the board affirmed his award and concluded “the claimant was functionally on his employer’s premises” when he was injured. Id.4
The respondents argue the facts of the present case more closely resemble Spatafore v. Yale University, 239 Conn. 408 (1996) than the cases following Kuharski, supra. We disagree. In Spatafore the claimant was injured crossing a public street during an unpaid lunch hour while on her way to a union meeting. The Supreme Court concluded the record did not support a finding that the claimant’s travel to a union meeting was of “mutual benefit of employer and employee.” We distinguish the present case from Spatafore as that the Supreme Court reached a policy determination that deeming union meetings of “mutual benefit” to an employer and employee would be “a dramatic and unjustifiable expansion of our worker’s compensation law.” Id., 426. Conversely, we find the facts in this case consistent with long standing precedent concerning an employer’s parking facilities.
We believe the clear weight of precedent established that when the claimant parked her car on the morning of February 18, 2004 at the respondent’s West Water Street parking lot her commute was completed and the “coming and going” rule was no longer applicable. We agree with the respondents, the claimant still needed to establish her injury did not occur during a “social or recreational” activity as defined in § 31-275 (16)(B)(i) C.G.S. This determination is a factual determination where we must defer to the trial commissioner’s findings unless we determine that they are “clearly erroneous.” Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007). “Put another way, the board is precluded from substituting its judgment for that of the commissioner with respect to factual determinations.” Anderton v. Wasteaway Services, 91 Conn. App. 345, 349 (2005).
The trial commissioner found that the claimant had for the previous 15 years normally parked her car at 7:00 a.m. at the employer’s lot and walked to the employer’s cafeteria and had coffee with her co-workers until her shift started at 8:00 a.m. The respondents do not suggest that her employer discouraged their employees from parking at that hour or congregating at the firm’s cafeteria prior to their shift.5 Rather, they sought a finding that the major purpose of this activity was “social.” The trial commissioner denied this correction. We cannot find this factual determination clearly erroneous given the proximity of time involved and the employer’s acquiescence to the practice. We also note the trial commissioner found the injury occurred on the most direct route between the parking lot and the office. The Appellate Court has indicated we must give significant deference to a trial commissioner’s findings in determining whether an activity is “social.” Anderton, supra.6
The respondents also sought a correction that the injury was not in the course of employment due to the lack of proximity between the time of the injury and the time her shift started. The trial commissioner denied this correction. We find no error in the trial commissioner denying the respondents’ Motion to Correct in its entirety as we find sufficient basis for his factual conclusions and the respondent cannot expect the commissioner to substitute the respondent’s conclusions for his own. D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002).
The Finding and Award is consistent with the controlling legal precedent for injuries sustained after an employee reaches his employer’s premises. As a result we affirm the Finding and Award and dismiss this appeal.
Commissioners Donald H. Doyle, Jr. and Nancy E. Salerno concur in this opinion.
1 The recent decision in Matteau v. Mohegan Sun Casino, 4998 CRB-2-05-9 (August 31, 2006) was consistent with this application of the “coming and going” rule. This decision does not govern circumstances where the claimant has reached her employer’s premises prior to being injured. BACK TO TEXT
2 Mr. Kuharski was injured on July 11, 1944 at the height of World War II, which caused gasoline to be prioritized for military purposes and made gasoline difficult to obtain by the general public. BACK TO TEXT
3 The respondents in Russo made the same argument the respondents make in this case that the claimant was not forced to park in the free lot. Respondents’ Brief, p. 5. We were not persuaded by this argument in that case and find it equally unpersuasive here. BACK TO TEXT
4 The respondents challenge the trial commissioner’s Finding, ¶ O that a “special hazard” existed along the claimant’s route. Respondents’ Brief, pp. 6-8. As neither the Russo nor Cimmino cases required such a finding in order to establish a compensable injury occurred, we deem this issue immaterial to whether sufficient evidence was proffered to support an award for a compensable injury. In any event, the respondents did not challenge the claimant’s account in her Form 30C of falling on an icy sidewalk. BACK TO TEXT
5 The scenario is akin to the fact pattern in Davis v. State/University of Connecticut, 3822 CRB-2-98-5 (August 17, 1999) where we held when a “a lunchtime injury takes place on a employer’s premises, that injury may be said to have occurred ‘in the course of employment,’ even though the lunch interval is technically outside the regular hours of employment.” In this case, the claimant was transiting between two premises controlled by the respondent en route to breakfast. BACK TO TEXT
6 In Anderton the claimant sustained injuries in an employer sanctioned basketball game. Citing Smith v. Seamless Rubber Co., 111 Conn. 365 (1930) the Appellate Court suggested a social activity should be “for the exclusive benefit of the employee” and found the employer derived a benefit from improved morale as a result of the basketball game. BACK TO TEXT