CASE NO. 5339 CRB-8-08-4
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MARCH 20, 2009
STATE OF CONNECTICUT DEPARTMENT OF CORRECTION
GAB ROBINS OF NORTH AMERICA
The claimant was represented by Ronald P. Kowalczyk, Esq., Ronald M. Scherban, P.C., Attorney At Law, 395 Orange Street, New Haven, CT 06511.
The respondent was represented by Lawrence G. Widem, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the April 15, 2008 Finding and Award of the Commissioner acting for the Eighth District was heard October 24, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Charles F. Senich.
JOHN A. MASTROPIETRO, CHAIRMAN. This appeal concerns whether the claimant’s injuries while operating a state-owned motor vehicle are compensable. The claimant asserts that at the time of his injury, although he was “off the clock,” that he was performing a task incidental to his employment. The respondent believes that the ordinary “coming and going” rule applies to this accident. The trial commissioner found the claimant’s arguments persuasive, and on appeal, we concur. We affirm the Finding and Award and dismiss the appeal.
The following facts are relevant to the issues on appeal. The claimant is employed as a parole officer by the Department of Correction. He resides in Meriden and on January 18, 2007 was assigned to the respondent’s office at 50 Fitch Street, New Haven. The claimant’s job duties are governed by the NP-4 Bargaining Unit Contract between his labor union and the state.
The claimant testified the NP-4 contract required him to be available for contact assignment by beeper to perform his duties on a 24-hour per day, seven-day per week basis except when he was on authorized leave and that his work hours were normally 8:00 a.m. to 6:00 p.m. His duties included apprehending and arresting parole violators anywhere in the state. To perform these duties the claimant was issued a firearm, body armor, a state-owned motor vehicle, handcuffs, chemical agent, a cellular telephone, and a pager. The claimant testified he was required to drive the state-owned motor vehicle whenever his employment required him to operate a motor vehicle. He further testified that he only spent about 35% of his work time in the New Haven office; and spent the remainder in the field.
The claimant further testified about the obligations he had regarding the use of his state-owned car. He was forbidden to use his own car to commute to the office or any other location where he was going to work; and if he received an emergency call at his home that needed to be responded to, he was required to drive his state-owned car to that emergency. The state-owned car was equipped with certain modifications which made it suitable for the claimant’s job: i.e. it was equipped with a safety cage to protect him while transporting prisoners and with a safe in the trunk in which he stored his state-issued firearm when not performing his duties. The claimant testified that personal use of the state-owned motor vehicle was not permitted and that he was allowed to make only essential stops in it while traveling to or from work as long as those stops were on his normal commuting route.
The state-owned car was, therefore, parked at the claimant’s residence when he was not at the office. The claimant testified he did not have to pay commuting expenses when using the state-owned motor vehicle while the state benefited by enabling him to respond more quickly to emergency calls from the respondent than he could have if it were necessary to first pick up his state-owned motor vehicle at another location.
The claimant testified that he was injured and the state-owned motor vehicle sustained property damage on January 18, 2007 at approximately 6:30 p.m. while on his way home from work on his usual route. At that time his car was struck from behind at a red light at the intersection of East Main Street and the Interstate 91 southbound exit ramp in Meriden. The claimant began treatment immediately for neck, shoulder, back, and right leg pain resulting from the accident. The claimant was out of work until May 15, 2007.
Following the formal hearing, the trial commissioner found the claimant and his treating physician credible and persuasive. The commissioner concluded that jurisdiction existed over the accident as “each of the four exceptions to the coming and going rule is satisfied;” specifically finding
1. The claimant’s job required highway travel.
2. The employer provided the means and mode of transportation by providing him a state car.
3. The claimant was subject to emergency calls while off duty.
4. The claimant was injured on the highway while doing something incidental to his job and that service or activity benefited the employer.
As the claimant’s injuries arose out of and in the course of his employment by the State of Connecticut, Department of Correction; on April 15, 2008 the trial commissioner ordered the respondent to pay temporary total disability benefits from January 19 through May 15, 2007; ordered the respondent to pay all medical and prescription costs resulting from the January 18, 2007 work-related automobile accident and ordered the respondent to pay off a lien to Anthem Blue Cross Blue Shield. The respondent filed a Motion to Correct, a Motion for Memorandum of Decision, a Motion for Articulation and two Motions for Reconsideration. The trial commissioner denied all motions for post-hearing relief and the respondent pursued this appeal.1
The respondent’s appeal focuses on two themes. First, they argue that the NP-4 union contract does not specifically call for “portal-to-portal” coverage for the claimant under the facts delineated herein. They point to the express terms of other bargaining unit contracts which include this provision to argue that the parties expressly intended not to place this injury within the ambit of workers’ compensation. The respondent also argues that even if we were to find that the union contract should not be read to bar coverage for this injury, that the claimant’s commute should be governed by the traditional “coming and going” rule to bar coverage. We find neither argument persuasive.
The respondent places great weight on the inclusion of “portal to portal” coverage in the contracts in force for other emergency response state employees who are members of the NP-1 and NP-5 bargaining units. The provisions of those contracts cited in the respondent’s brief include a thirty minute pay allowance for travel to and from the employee’s residence to work. Therefore, the state has already decided in the course of contract negotiations that these employees are “on the clock” during their commute and consequently, would not be subject to the standard “coming and going” rule. It is undisputed the parties did not include paid commuting time in the NP-4 contract. The plain language of the contract is silent on the specific issue of whether the “coming and going” rule should be applied to a parole officer traveling from his work station to his home.
We note that under state statute a labor contract cannot act to deprive an employee of rights extant under the Workers’ Compensation Act. See § 31-290 C.G.S. Therefore, we question the general rationale of the respondent that the terms of a collective bargaining agreement can supersede the terms of Chapter 568. Assuming arguendo, that a collective bargaining agreement between the State and its employees overcomes this statute, we are still unpersuaded that such an argument is viable in this case. The other contracts introduced by the respondent deal with paid commuting time, and this injury occurred during the claimant’s unpaid time. Therefore, there are material factual distinctions between the NP-1 and NP-5 contracts and the NP- 4 contract which makes them too dissimilar to be applied to the claimant’s situation. In addition, the parties decided whether through omission or as a result of contractual negotiating tactics to leave the issue of compensation coverage during an employee’s commute silent in the NP-4 contract. The failure to address this issue directly in the four corners of the contract requires this Commission to reach its own determination based on the facts presented.
In reviewing this situation we do note that other provisions of the NP-4 contract clearly delineate that parole officers are expected to be available on short notice to address emergency situations. Article 35, Section 7 of the NP -4 contract outlines the procurement of special vehicles to enable parole officers to perform this mission. While the contract states parole officers “may” bring these vehicles home, the uncontroverted testimony on the record was the claimant was required to bring his state-owned vehicle home.2 The requirement to garage the car is critical in this instance.
In our analysis, when the claimant left the New Haven parole office at 6:00 p.m. on January 18, 2007 his obligations to the respondent had not ended. Although he was “off the clock” in terms of not collecting pay for this period he did not have the opportunity to travel home via car pool or mass transit. He had been directed by his superiors to garage his state-owned vehicle at a location they deemed to be convenient for the performance of the department’s operation. In this case, they determined it would be most efficient to have the vehicle driven home to the claimant’s residence at the conclusion of his shift. But, in the alternative, had the claimant been directed to garage his state-owned vehicle at a central motor pool, presumably any injury incurred between the New Haven parole office and such a location would be compensable under the theory of “mutual benefit.” We do not find a material distinction when an employee is directed to garage the employer’s vehicle at his residence.
The Appellate Court recently delineated when injuries occur “in the course of” one’s employment. In Brown v. United Technologies Corp. 112 Conn. App. 492, 500 (2009) the following test was outlined.
To satisfy the “in the course of” test, the plaintiff must prove that the injury occurred “(a) within the period of the employment; (b) at a 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.”
We note that in Brown the injury occurred “off the clock” during a lunch period. We concluded that the claimant was not performing an act which benefited her employer during this period and reversed a finding of compensability. Brown v. UTC Pratt & Whitney, 5145 CRB-8-06-10 (October 23, 2007), aff’d, 112 Conn. App. 492 (2009). The Appellate Court decided that given the facts in Brown it was not necessary to find mutual benefit. Id. at 502-504; but since the “social/recreational exception” in § 31-275(16)(B)(i) C.G.S. governed the injury it was not compensable. Id. at 504-511.
On the other hand, it is clear under the facts in this case that the claimant was, while not receiving pay at the time, furthering the interests of his employer at the time he was injured by virtue of returning his state-owned car to the place where he was to garage it. It is also uncontroverted that at 6:30 p.m. on January 18, 2007 the claimant was exactly where one would expect him to be in returning the state-owned car to the location where it was to be garaged that evening.
The claimant argues the case of Labadie v. Norwalk Rehabilitation Services, Inc., 274 Conn. 219 (2005) is applicable to these circumstances herein. We concur. Labadie involved a claim from a home health care worker who was injured on the public highway. The Supreme Court, citing Dombach v. Olkon Corporation, 163 Conn. 216, 221-22 (1972) held
An injury is said to arise out of the employment when (a) it occurs in the course of the employment and (b) is the result of a risk involved in the employment or incident to it or to the conditions under which it is required to be performed.
Labadie, at 228.
In finding Ms. Labadie’s injuries compensable, the Supreme Court concluded that the two of the four exceptions to the “coming and going” rule first set forth in Lake v. Bridgeport, 102 Conn. 337 (1925) and restated in Dombach, supra, were present therein. Interestingly, they were the same four exceptions found by the trial commissioner in the present case.
(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.
Labadie, at 229.
We note that in Labadie, supra, only two of the four exceptions to the “coming and going” rule were required to find compensability, as the Supreme Court held “[e]xceptions one and four are controlling in the present case.” Id. In this case the trial commissioner found all four exceptions were present. Therefore, one of the respondent’s arguments—that the claimant was not on an emergency call at the time of the injury—is unavailing.3
We find our recent analysis in Houlihan v. Waterbury-Police Department, 5141 CRB-5-06-10 (September 26, 2007) relevant to this inquiry. In Houlihan the claimant was driving his personal vehicle on a direct route from his house to a medical appointment when he was injured. The trial commissioner found the claimant would not have left his house on the afternoon of the accident but for the need to treat for a compensable injury. We cited the seminal case on “dual-purpose” travel injuries, Justice Cardozo’s opinion in Matter of Marks v. Gray, 251 N.Y. 90 (1929), 167 N.E. 181, as relied on in Dombach, supra, to uphold the trial commissioner’s finding of compensability.
To establish liability, the inference must be permissible that the trip would have been made though the private errand was canceled. . . . The test in brief is this: if the work of the employee creates the necessity for travel he is in the course of his employment, though he is serving at the same time some purpose of his own. . . . If, however, the work has no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk.
Dombach, at 224.
In the present case, “the work of the employee” created the “necessity for travel” to bring the state-owned car to Meriden on the evening of January 18, 2007. Even had the claimant desired to travel to another destination at the close of business that evening, he was obligated to return home immediately to Meriden to garage his state-owned vehicle. The evidence that the respondent received a benefit from the claimant’s actions is substantial and uncontroverted.4 We note that we previously have found an injury which was sustained when driving a company owned vehicle home at the conclusion of work compensable in Eaton v. Main Heating & Cooling Service, 3473 CRB-3-96-11 (January 30, 1998). Indeed, the facts herein are more supportive of compensability than the facts in Eaton. In Eaton the claimant was furnished a truck by his employer, but the record is silent whether his employer ordered the claimant to garage it at his residence during the hours when he was not working.
We have reviewed the cases cited by the respondent to support the application of the traditional “coming and going” rule to this case and find none are on point. This is not a circumstance where the employee voluntarily brought work home Matteau v. Mohegan Sun Casino, 4998 CRB-2-05-9 (August 31, 2006) and we held this did not serve to establish a “home office.” The two other cases relied on, Woodley v. Rossi, 152 Conn. 1 (1964) and Greco v. Greco Auto Parts, 3402 CRB-4-96-8 (February 4, 1998) are cases where the employee was not on a direct travel route to benefit the employer’s interest at the time of the injury, and therefore, at the time of the injury the employer was receiving no benefit. Woodley stands for the proposition that injuries are not compensable if one continues beyond the point where a company owned vehicle is to be garaged by the employee. Id., at 5. It is uncontroverted in this case the claimant had not yet returned home on the evening of the accident, and therefore, had not had a chance to garage his vehicle.5
The central flaw in the respondent’s argument is contained in page 19 of their brief, in which they claim “once the Claimant had left his New Haven work station, his work was done.” But since the claimant was then immediately obligated to drive his employer’s car from the New Haven work station to a location they chose to have it garaged, the claimant still had an obligation to perform for his employer. He was injured while performing this obligation. This clearly places the injury as “arising out of the employment” and “incidental to the employment” and falls within the exceptions to the “coming and going” rule identified by the trial commissioner.6
The Finding and Award is affirmed and the appeal is dismissed.
Commissioners Ernie R. Walker and Charles F. Senich concur in this opinion.
1 The trial commissioner corrected a scrivener’s error and issued a Corrected Finding and Award on September 30, 2008. This correction did not alter the material terms of the Finding and Award. BACK TO TEXT
2 Counsel for the respondent argues that other state employees such as judges are issued state-owned vehicles and may be directed to report to work to cover an emergency. We are unaware of a circumstance where a judge is directed he or she must use their state-owned car to commute and whether such vehicles are specially equipped to transport prisoners and weapons. The specific facts in this case clearly demonstrate the claimant’s “off the clock” obligations to the state were significant, and this was not merely a circumstance where a state car was provided as a prerequisite of employment. BACK TO TEXT
3 The terms of the exception are that the claimant must be “subject to” being called out on an emergency. The claimant did not suggest that his injury occurred during response to an emergency; nor does the case law require this to occur in order to find that the “coming and going” rule is inapplicable to the circumstances. There is no dispute that at the time of the injury the claimant was subject to potentially receiving such an emergency call. BACK TO TEXT
4 See Finding, ¶ r, “[t]he claimant benefited by not paying commuting expenses when using the state-owned motor vehicle while the state benefited by enabling him to respond more quickly to emergency calls from the respondent than he could have if it were necessary to first pick up his state-owned motor vehicle at another location.” BACK TO TEXT
5 The respondent cites Woodley v. Rossi, 152 Conn. 1, 6 (1964) for the proposition “an accident could not have arisen out of the decedent’s employment when it was caused by a risk wholly disconnected with the decedent’s employment.” The problem herein is the trial commissioner in Woodley on the fact, found the decedent was not benefiting his employer at the time of his injury; which was the opposite conclusion from the factual determination of the trial commissioner herein. BACK TO TEXT
6 Since we have determined the collective bargaining agreement in question was silent on this issue before this tribunal, we reject the respondent’s argument there was a jurisdictional requirement for the claimant to exhaust his remedies pursuant to this agreement prior to filing a claim for Chapter 568 benefits. BACK TO TEXT