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Walsh v. Omni Medical Service

CASE NO. 5323 CRB-3-08-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 22, 2009

GREGORY G. WALSH

CLAIMANT-APPELLEE

v.

OMNI MEDICAL SERVICE

EMPLOYER

NO RECORD OF INSURANCE

RESPONDENT-APPELLANT

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Anselmo Delia, Esq., Delia & Dunne, LLC, 205 Church Street, Suite 639, New Haven, CT 06510.

The respondent employer was represented by Robert Noonan, Esq., 6 Way Road, Middlefield, CT 06455.

The Second Injury Fund was represented by Attorney Kenneth Kennedy, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120 who did not file a brief nor appear at oral argument.

This Petition for Review1 from the January 30, 2008 Finding and Award of the Commissioner acting for the Third District was heard December 12, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Charles F. Senich and Amado J. Vargas.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter suffered an injury in a parking lot during his lunch hour. He filed a claim against his employer, Omni Medical Services, asserting that the injury occurred as a result of activities incidental to his employment. The respondent denied liability for the injury, but the trial commissioner concluded the injury was compensable. We conclude that the trial commissioner had sufficient facts upon which to reach a finding of compensability in this matter. We also find that on a legal basis the case is similar to cases where appellate courts have found the injury was compensable under an “incidental to employment” concept. Therefore, we affirm the Finding and Award and dismiss this appeal.2

The trial commissioner reached these factual conclusions following a formal hearing. On December 19, 2005, the claimant was employed as a pharmacist by Omni Medical Services at the Hill Health Center in New Haven, Connecticut. Omni was a temporary employment agency that assigned pharmacists to various jobsites. The commissioner found Omni was not insured for workers’ compensation liability at the time of the accident.3

The commissioner found the claimant was paid $50 per hour and worked from 8:00 a.m. to 5:00 p.m. with a one hour unpaid lunch break between 1:00 p.m. and 2:00 p.m. The pharmacy had to be closed when the pharmacist was on his lunch hour. The commissioner found the Hill Health Center provided parking to the claimant. On December 19, 2005, the claimant went to his automobile during his lunch hour to use a cell phone for a personal call. While the claimant was returning to the Hill Health Center he slipped and fell on some ice in their parking lot.

The claimant suffered a right shoulder injury as a result of the slip and fall accident. The claimant was out of work through January 1, 2006. Following that point the claimant treated with Dr. Philip Minotti and Dr. David Cohen and worked from January 4, 2006 through February 14, 2006. On February 14, 2006, Dr. Cohen diagnosed a rotator cuff tear in the right shoulder and scheduled immediate surgery, which was performed on February 23, 2006. Dr. Cohen did not release the claimant for sedentary work until May 19, 2006. While Dr. Cohen did provide a sedentary work capacity for the claimant during the summer, fall and winter of 2006 the claimant did not demonstrate that he tried to seek work within his sedentary capacity. On March 9, 2007, Dr. Cohen gave the claimant a 41% permanent partial impairment of the right arm.

The claimant asserted he was entitled to indemnity benefits and specific benefits for his permanent partial impairment of the shoulder, reimbursement for co-payments, reimbursement for a TENS unit and a cyro cuff, and reimbursement for mileage. The respondent denied that the claimant’s injury was compensable under Chapter 568, claiming it did not occur out of and during the course of his employment.

Based on those subordinate facts, the trial commissioner concluded that the claimant was walking from his employer provided parking space when he slipped and fell on ice, and therefore his injury arose out of his employment. He also concluded the claimant did not submit sufficient evidence to demonstrate that he tried to obtain employment within his sedentary work capacity. Accordingly, the trial commissioner denied the claim for temporary partial disability benefits, but awarded the claimant temporary total disability benefits from February 14, 2006 through May 19, 2006, and specific benefits for a 41% permanent partial impairment of the right shoulder commencing on March 9, 2007. He also ordered the respondent to pay various reimbursements to the claimant. The respondent did not file a Motion to Correct the Finding and Award, and proceeded directly to appeal the award.

At the outset, we note the appellant did not file a Motion to Correct in this matter. As a result, pursuant to Corcoran v. Amgraph Packaging, Inc., 4819 CRB-2-04-6, 4948 CRB-2-05-5 (July 26, 2006) and Crochiere v. Board of Education, 227 Conn. 333, 347 (1993), we must accept the validity of the facts found by the trial commissioner, and that this board is limited to reviewing how the commissioner applied the law. See Admin. Reg. § 31-301-4.4

We discussed many of the elements of a case involving an injury in a parking lot two years ago in Meeker v. Knights of Columbus, 5115 CRB-3-06-7 (July 3, 2007). The claimant in Meeker was injured while traveling on a public sidewalk between the parking lot and her office, but the same principles of law are applicable to this injury. We noted in Meeker that “[t]he “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 decided that in Meeker the claimant was injured after completing her commute and therefore, based on the concept of “mutual benefit,” her injury occurred at a time and place within the scope of her employment.

Our decision in Meeker, supra, relied in part on a case the claimant cites as authority in this matter. Cimmino v. Hospital of St. Raphael, 4230 CRB-3-00-5 (September 13, 2001). In Cimmino we determined an employee of the Hospital of St. Raphael had not “briefly ‘phased out’ of his employment period” when he crossed a street to get a belonging out of his car in the hospital garage. Under those circumstances “the claimant was functionally on his employer’s premises” when he was injured. Id.

The respondent argues that this case is similar to the circumstances in Spatafore v. Yale University, 239 Conn. 408 (1996), when an off-premises lunch time injury was deemed noncompensable since the mutual benefit test could not be met. We however believe that a more recent appellate decision, Brown v. United Technologies Corp., 112 Conn. App. 492 (2009), provides a more contemporary test of when a lunchtime injury occurs “in the course of [‘one’s] employment.’ ”

In Brown, supra, the claimant was injured while power walking during her lunch hour on a road located on the Pratt & Whitney campus. This panel concluded that pursuant to those facts the injury was noncompensable owing to a lack of “mutual benefit” to the employer. On appeal, although the Appellate Court upheld the result, the court also determined the claimant did not need to prove “mutual benefit” in order to prove an injury was “incidental to one’s employment.”5

[w]hen determining whether the activity is incidental to the employment, the following rule should be applied: If the activity is regularly engaged in on the employer’s premises within the period of the employment, with the employer’s approval or acquiescence, an injury occurring under those conditions shall be found compensable.

Id., at 501.

The facts herein are that the claimant was directed to lock up the pharmacy during his lunch hour, and we may also reasonably infer that traveling to a parked car is something an employee would do “regularly;” under those circumstances. Brown also cited Mazzone v. Connecticut Transit Co., 240 Conn. 788 (1997) that an unpaid lunch break may fall within the “period of employment,” especially, if unlike Spatafore, supra, the claimant does not leave the employer’s premises. Brown, supra, 500-501.6 Common knowledge would suggest that one’s parked car would be “a place the employee may reasonably be” if the employee was directed to lock the office during this period.

The respondent also raises various statutory arguments that a “pharmacy” must be defined as solely the physical location where drugs are dispensed when a licensed pharmacist is on site. By respondent’s logic, once the claimant locked the door at lunch the pharmacy ceased to exist and he was no longer on his employer’s premises. We are not persuaded by this circular argument. We believe that Hughes, supra, and Cimmino supra, clearly establish that a parking lot provided to employees is an adjunct to the workplace and injuries suffered at such a location can be deemed compensable.

We are satisfied that the trial commissioner reached a legally correct conclusion that the claimant’s injury was compensable. We affirm the Finding and Award and dismiss this appeal.

Commissioners Charles F. Senich and Amado J. Vargas concur in this opinion.

1 We note that a postponement was granted during the pendency of this appeal. BACK TO TEXT

2 The hearing notice for the December 12, 2008 Compensation Review Board’s oral argument included a notice that the respondents were directed to show cause why the appeal should not be dismissed for noncompliance with Practice Book § 85-1. The specific reason for this motion was that the respondents failed to file Reasons for Appeal subsequent to filing a Petition for Review. Considering the totality of the matter, we find the claimant was adequately apprised in a timely manner of the issues herein by the Appellant’s Brief. In the absence of prejudice to the opposing party, a jurisdictional dismissal is unwarranted. Roussel v. Village Gate of Farmington, 4918 CRB-6-05-2 (February 28, 2006). BACK TO TEXT

3 As a result, the Second Injury Fund is an appearing party in this action. BACK TO TEXT

4 At oral argument before this panel, counsel for the respondent challenged the trial commissioner’s finding that the parking area was provided to the claimant as part of his employment. See Finding, ¶ 8 and Finding, ¶ B. In the absence of a Motion to Correct, we must accept the facts found by the trial commissioner. BACK TO TEXT

5 The Appellate Court in Brown v. United Technologies Corp., 112 Conn. App. 492, 504-11 (2009) determined that the “social/recreational exception” in § 31-275(16)(B)(i) C.G.S. rendered the claimant’s injuries noncompensable. BACK TO TEXT

6 We can readily distinguish the precedent in Kaplan v. State/Department of Health Services, 2012 CRB-1-94-4 (September 11, 1995), relied on by the respondent from the present case. In Kaplan, the trial commissioner found the claimant was injured on an off-premises sidewalk during her lunch break; not at a parking lot appurtenant to the workplace. BACK TO TEXT

Workers’ Compensation Commission

Page last revised: May 6, 2009

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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