Richard v. Olsten Temporary Services

CASE NO. 3250 CRB-7-96-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 22, 1997

MARK RICHARD

CLAIMANT-APPELLANT

v.

OLSTEN TEMPORARY SERVICES

EMPLOYER

and

ITT HARTFORD INSURANCE GROUP

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by James Smith, Esq., Guendelsberger & Taylor, 28 Park Lane, New Milford, CT 06776.

The employer was represented by Stephen G. Ekern, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

This Petition for Review from the January 12, 1996 Finding and Dismissal of the Commissioner acting for the Seventh District was heard October 11, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the January 12, 1996 Finding and Dismissal of the Commissioner acting for the Seventh District. In that decision, the trial commissioner concluded that the claimant’s motorcycle injury of May 20, 1991 did not arise out of and in the course of his employment, but rather occurred during an unpaid lunch break. In support of his appeal, the claimant contends that the injury arose out of and in the course of his employment because the injury occurred on a private road which was part of the employer’s premises. Alternatively, the claimant contends that the private road was the only means of reaching the facility and constituted a special hazard. We affirm the trial commissioner.

The parties stipulated to the following facts. On the date of injury, May 20, 1991, a contract of employment existed between the claimant and Olsten Temporary Services (“respondent employer”). The claimant was a machine operator assigned by the respondent employer to work at DuPont Photo Masks, Inc. (“DuPont”), where he had been working for approximately three months prior to the injury. On May 20, 1991, a collision occurred between a motorcycle operated by the claimant and a passenger car. The claimant was on an unpaid lunch break at the time of the accident.

The trial commissioner found the following additional relevant facts. The DuPont facility to which the claimant was assigned provided a lunch room which the claimant had used on occasion. On May 20, 1991, the claimant left the DuPont facility to go to his home for his lunch hour, and at approximately 1:00 P.M. he was returning to DuPont via Finance Drive. At that time, the claimant’s motorcycle collided with an automobile which was making a left turn from Finance Drive into the DuPont driveway. The collision occurred on Finance Drive, a private road designed, constructed, and maintained by Seymour Powers, which runs through an industrial park. DuPont had been granted a right-of-way over Finance Drive by a warranty deed dated March 12, 1990. The trial commissioner concluded that the claimant’s injury did not arise out of or in the course of his employment because he was on an unpaid lunch break when the injury occurred. In addition, the trial commissioner concluded that Finance Drive did not constitute part of the employer’s premises.

Whether the trier erred in finding that the claimant’s injury arose out of and in the course of his employment requires a factual determination which we will not disturb unless it is found without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). This board has stated:

It is well settled that “[i]n 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); Bell v. U. S. Home Care Certified of Connecticut, 13 Conn. Workers’ Comp. Rev. Op. 294, 1792 CRB-1-93-8 (April 21, 1995). The question of whether an injury meets these criteria is factual in nature and is committed to the trial commissioner’s discretion. Tovish, supra, 605.

Kaplan v. State of Connecticut/Department of Health Services, 14 Conn. Workers’ Comp. Rev. Op. 296, 297-98, 2012 CRB-1-94-4 (Sept. 11, 1995).

Injuries “which occur off an employer’s property during an unpaid lunch break are not normally compensable.” Spatafore v. Yale University, 14 Conn. Workers’ Comp. Rev. Op. 310, 314, 2011 CRB-3-94-4 (Sept. 14, 1995), aff’d., 239 Conn. 408 (1996). Our Supreme Court has stated that “when the employee with fixed time and place of work has left the premises for lunch, he is outside of the course of his employment if he falls, is struck by an automobile crossing the street, or is otherwise injured.” Spatafore v. Yale University, 239 Conn. 408, 421 (1996). In the instant case, the trial commissioner did not find that the claimant was within the period of the employment at the time of the injury, but rather was on an unpaid lunch break. In addition, the trial commissioner found that Finance Drive was not part of the employer’s premises.

In support of his appeal, the claimant contends that Finance Drive constituted part of DuPont’s premises because DuPont had a property interest in the road and because it was the only means of accessing DuPont’s facility. The trial commissioner found that Finance Drive was a private drive which served several employers in an industrial park, and that it was designed, constructed, and maintained by Seymour Powers. In addition, the trial commissioner granted the claimant’s motion to correct, in part, to indicate that Powers received money from abutting owners along Finance Drive, including DuPont, for maintenance of the road. We conclude that the record fully supports the trial commissioner’s determination that Finance Drive was not part of the premises of DuPont.1

We now turn to the claimant’s argument that Finance Drive constituted a “special hazard.” In Moffett v. Tighe Williams Salon, 12 Conn. Workers’ Comp. Rev. Op. 83, 1489 CRB-4-92-8 (Feb. 9, 1994) the board stated that off-premises injuries may be compensable if they result “from some peculiar danger involved in the course taken or means used by [the injured worker] in coming to or going from work....” Moffett, supra, at p. 85 (quoting Drouin v. Chelsea Silk Co., 122 Conn. 129, 133-34 (1936)). Typical of such “special hazards” has been railroad tracks which an employee must cross in order to reach the employer’s facility. While the “special hazards” exception has been applied to situations other than railroad tracks, “it was never the intention behind this exception to mark out an off-premises area, merely because it is a normal access route, and then invest it with all the characteristics of the premises for course of employment purposes.” Id. (citations omitted).

In the instant case, the determination of whether Finance Drive constituted a “special hazard” is a determination of fact which we will not disturb unless it is found without evidence, contrary to law or based on unreasonable or impermissible factual inferences. We find no error in the trial commissioner’s decision not to apply the special hazard exception. See Moffett, supra. The conclusion that the claimant’s injury did not arise out of and in the course of his employment is amply supported by the record.

The trial commissioner’s decision is affirmed.

Commissioners George Waldron and Robin L. Wilson concur.

1 We note that it is not contended that Finance Drive was part of the premises owned by the respondent employer, Olsten Temporary Services. BACK TO TEXT