Bell v. U.S. Home Care Certified of Connecticut

The claimant was represented by Joelle C. Newton, Esq., Law Offices of Paul N. Shapera, 179 Allyn St., Suite 501, Hartford, CT 06103.

The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

This Petition for Review from the July 29, 1993 Finding and Dismissal of the Commissioner acting for the First District was heard August 26, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the July 29, 1993 Finding and Dismissal of the Commissioner for the First District. She argues on appeal that the commissioner improperly found that the claimant’s injury did not arise out of or in the course of her employment with the respondent employer. We affirm the trial commissioner’s decision.

The claimant was employed as a home health care aide with the respondent employer on June 8, 1991. She began that particular work day by traveling to a patient’s home in Hartford, after which she drove to another patient’s home in West Hartford. The claimant was paid on an hourly basis for time spent at patients’ homes, but was not compensated for travel time between those homes. While returning to the home of the first patient, she stopped at a beauty supply store in West Hartford to pick up “hair activators and other personal items for hair supplies.” This was a personal item and was not paid for by her employer. The claimant testified that while she was in the store, she remembered that the Hartford patient had asked her to pick up a lipstick, which the claimant bought for her patient.

The claimant slipped and fell while leaving the beauty supply store, sustaining a knee injury. The commissioner concluded that the claimant was doing a personal errand at the time of the injury and only purchased the lipstick as an afterthought. Thus, he concluded that the knee injury did not arise out of and in the course of the claimant’s employment. The claimant has appealed from the commissioner’s dismissal of her claim.

At the outset of our review, we note that the claimant did not file a Motion to Correct. Consequently, we are limited to the findings of the trial commissioner. Spindler v. Med-Center Home Health Center, 12 Conn. Workers’ Comp. Rev. Op. 130, 132, 1474 CRB-7-92-7 (Feb. 28, 1994); see also Vanzant v. Hall, 219 Conn. 674, 681 (1991).

The claimant contends that the facts found by the commissioner support a different legal conclusion than the one he reached. See Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). She proposes several arguments to the effect that her injury arose out of and in the course of her employment as a matter of law. “In order to come within the course of the employment, an injury must occur (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.” McNamara v. Hamden, 176 Conn. 547, 550-51 (1979). “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 the conditions under which it is required to be performed.” Tovish v. Gerber Electronics, 32 Conn. App. 595, 607 (1993), affirmed, 229 Conn. 587 (1994), quoting Dombach v. Olkon Corporation, 163 Conn. 216, 221-22 (1972).

The claimant first argues that, along with her own interest, she was furthering the interest of her employer at the time of her injury by purchasing lipstick for a patient. In Dombach, supra, our Supreme Court held that an accident occurring during a journey undertaken for both business and personal reasons was compensable. “When a trip serves both business and personal purposes, it is a personal trip if the trip would have been made in spite of the failure or absence of the business purpose and would have been dropped in the event of failure of the private purpose, though the business errand remained undone; it is a business trip if a trip of this kind would have been made in spite of the failure or absence of the private purpose, because the service to be performed for the employer would have caused the journey to be made by someone even if it had not coincided with the employee’s personal journey.” Id., 224, quoting 1 Larson, Workmen’s Compensation Law, p. 294.5.

The commissioner found, however, that the claimant’s motivation for stopping at the beauty supply store was solely to purchase hair care items for herself. As an afterthought, she bought the lipstick for her patient. Furthermore, the commissioner made no finding that the claimant was required to run errands for patients, or that the claimant would have had to complete this particular errand at a later time had she not bought the lipstick on the date of her injury. We cannot assume these facts on appeal. “Our appellate review is limited to determining whether the conclusion reached resulted from an incorrect application of the law or from inferences illegally or unreasonably drawn from the facts found.” Spindler, supra, 132, citing Fair, supra, 539. On the basis of the facts found, the commissioner was not required to conclude that the claimant’s trip to the beauty supply store satisfied the “dual purpose” doctrine in Dombach.

The claimant also argues that her purchase of hair activator at the time of her injury falls under the “personal comfort” doctrine. Our courts have held that acts relating to the personal comfort of an employee are within the scope of his or her employment. Renckowski v. Yale University, 11 Conn. Workers’ Comp. Rev. Op. 48, 50, 1292 CRD-3-91-9 (March 18, 1993). “[N]o break in the employment is caused by the mere fact that the workman is ministering to his personal comforts, or necessities, as by warming himself, or seeking shelter, or by leaving his work to relieve nature, or to procure drink, refreshments, food, or fresh air, or to rest in the shade.” Id., quoting Lovallo v. American Brass Co., 112 Conn. 635, 639 (1931) (citations omitted).

The claimant maintains that her purchase of hair activator was an act of personal grooming designed to contribute to her job efficiency, and was incidental to her employment within the meaning of Renckowski because her employer required her to “look immaculate” and have neat hair while on duty. Again, there are no findings to support that contention. We do not know if the claimant’s purchase of hair activator was for immediate use, and the commissioner did not specify as to the employer’s grooming policy in his findings.

Moreover, the “personal comfort” doctrine was found inapplicable in Renckowski, where the claimant was injured at a restaurant adjacent to her employer’s premises while on a paid coffee break. Here, the commissioner found that the claimant was not being paid at the time of her injury, and the claimant was injured while purchasing beauty supplies at a site completely unrelated to her job duties. The definition of “personal comfort” given in Lovallo, supra, would seem to be even less compatible with these circumstances than the facts of Renckowski. We therefore hold that the commissioner did not misapply the law to the facts found in this case.