CASE NO. 4482 CRB-4-02-1
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
FEBRUARY 5, 2003
EVELYN R. HAYES
TOTAL FULFILLMENT SERVICES, LTD.
HARTFORD INSURANCE GROUP
The claimant was represented by Robert C. Pinciaro, Esq., Toro & Pinciaro, P.C., 22 Trumbull Street, New Haven, CT 06511.
The respondents were represented by Douglas Drayton, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.
This Petition for Review from the January 9, 2002 Finding and Denial of the Commissioner acting for the Fourth District was heard August 23, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the January 9, 2002 Finding and Denial of the Commissioner acting for the Fourth District. She contends on appeal that the trier erred by finding that her claim did not arise out of her employment, which resulted in the dismissal of her claim. We find no error, and affirm the trial commissioner’s decision.
The claimant was employed by the respondent Total Fulfillment Services on January 28, 2000. She had parked her car approximately 50-100 yards away from the employer’s building in an adjacent parking lot that the employer provided for its workers.1 At 7:30 that evening, she left work and got into her car. While rolling up her window, a portion of its handle broke, piercing her hand and creating a wound that required medical treatment. The trial commissioner found that this injury occurred in the course of the claimant’s employment, but that it did not arise out of her employment, and dismissed her compensation claim. The claimant has filed an appeal from that decision.
The claimant contends on appeal that injuries sustained in a parking lot that is maintained or provided by an employer for the convenience of employees are normally compensable, and that the act of rolling up a car window is clearly incidental to one’s employment, as it is a natural extension of driving through a parking lot and leaving the premises. She was raising the window because it was slightly open, and she was cold, it being January. In her view, this did not constitute a break in employment because she was simply ministering to her personal comfort. See Greco v. Greco Auto Parts, 3402 CRB-4-96-8 (Feb. 4, 1998).
As we review the trial commissioner’s decision, we are reminded by caselaw that it was his job, and not the duty of this board, to try this case and to find facts based upon the evidence presented to him (here, mainly the claimant’s testimony at the October 3, 2001 formal hearing). Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (Oct. 23, 2002); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). At trial, the burden rested upon the claimant to prove each element of her claim, which included the basic jurisdictional requirement that the injury arose out of and in the course of her employment. Kish v. Nursing & Home Care, Inc., 248 Conn. 379, 382 (1999); Mazzone v. Connecticut Transit Co., 240 Conn. 788, 792 (1997). Here on review, we must defer to the inferences that a commissioner has drawn regarding the credibility of the evidence. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Duddy, supra. We do, however, review the trier’s findings to determine whether there is sufficient evidence in the record to support them. Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). With regard to questions of law, such as the proper interpretation of “arising out of and in the course of employment,” our review of the trier’s analysis is plenary; thus, we have considerable authority to reconsider a commissioner’s legal reasoning, and correct a commissioner’s conclusions if they result from an erroneous application of the law to the subordinate facts. Warren, supra.
Here , the commissioner found that the claimant’s injury occurred in the course of her employment, but that it did not arise out of her employment. An injury occurs in the course of employment when it takes place within the period of employment, at a place the employee may reasonably be, and while the employee is fulfilling the duties of employment or doing something incidental to them. Mazzone, supra, 793; Cimmino v. Hospital of St. Raphael, 4230 CRB-3-00-5 (Sept. 13, 2001). We have held that a portion of a common area that is made available to an employer and its staff pursuant to a lease is an extension of the employment premises. Russo v. Stop & Shop Companies, Inc., 4002 CRB-6-99-3 (March 22, 2000); Chavarriaga v. Pathmark, 5 Conn. Workers’ Comp. Rev. Op. 16, 363 CRD-7-84 9 (March 24, 1988). Also, numerous cases establish that an employee remains in the course of his or her employment while walking to a car parked in a lot or garage that an employer intends to serve as parking for its employees. See, e.g., Hughes v. American Brass Co., 141 Conn. 231 (1954); Cimmino, supra; Desrosins v. Stop & Shop, Inc., 3860 CRB-7-98-7 (Nov. 18, 1999); Chavarriaga, supra. Thus, both parties correctly agree that the claimant’s injury can reasonably be held to have occurred in the course of her employment here.
The claimant and respondent disagree, however, on whether this injury should have been found to have arisen out of the claimant’s employment as well. An injury arises out of one’s employment when it occurs in the course of employment, and when it is the result of a risk involved in the employment or incident to it or to the conditions under which it must be performed. Dombach v. Olkon Corp., 163 Conn. 216, 222 (1972). The claimant argues that this injury arose out of her employment because it cannot be considered a deviation from that employment under the “personal comfort” doctrine discussed in Lovallo v. American Brass Co., 112 Conn. 635 (1931), and more recently, Renckowski v. Yale University, 11 Conn. Workers’ Comp. Rev. Op. 48, 1292 CRD-3-91-9 (March 18, 1993). We disagree.
Let us begin by looking at the language of Lovallo, a case in which an employee’s greasy and oily clothing caught fire when he lit a pipe after finishing his lunch:
While smoking was not of course one of the obligatory duties of his employment, it was yet something which the respondent permitted at that time and place for the convenience of the men and to keep them in good spirits for their overtime work. It is obvious, we think, that the permission to smoke was thus for the mutual advantage of the employer and the employee. . . . “Acts of ministration by a servant to himself, such as quenching his thirst, relieving his hunger, protecting himself from excessive cold, performance of which while at work are reasonably necessary to his health and comfort, are incidents to his employment and acts of service therein within the Workmen’s Compensation Acts, though they are only indirectly conducive to the purpose of the employment. Consequently no 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.” 1 Honnold on Workmen’s Compensation (1917) p. 381; Vitas v. Grace Hospital Society, 107 Conn. 512, 515, 141 A. 649; Guiliano v. O’Connell’s Sons, 105 Conn. 695, 701, 136 A. 677. In Tiralongo v. Stanley Works, 104 Conn. 331, 133 A. 98, the only case of this character which has been before this court, the clothing of the employee was set on fire during working hours and he died as a result of the burns thus received. Compensation was denied in that case. It is clearly distinguishable from the present one by the fact that nothing done or permitted by the employer was shown to have been the causative factor in firing the employee’s clothing. If, as was reasonably to be inferred, he lighted a cigarette and thus set his clothes on fire, it was done in direct disobedience of the orders of the respondent, a printed notice being posted in the toilet room reading “No Smoking,” and, moreover, the rules of the factory forbade smoking during working hours.
Id., pp. 638-39. Though Lovallo mentions various forms of caring for one’s basic needs during the course of one’s workday, including protection from excessive cold, the “personal comfort” doctrine therein enunciated concerns only the question of whether one should infer that there was a break in the course of a claimant’s employment while she was attending to her own physical well-being. The doctrine embodies the understanding that employers allow their employees to attend to certain needs during their workdays because human beings have such needs, and that it is in an employer’s interest to ensure that they are reasonably met. The variable scope of this acquiescence is well-illustrated by Tiralongo, supra, in which smoking was prohibited on an employer’s premises; there, unlike Lovallo, the claimant’s injury was found not to have arisen out of his employment.
When we consider other cases in which the “personal comfort” doctrine has been discussed, we see that some injuries have been found to result from a risk not involved in the employment, or related to the conditions under which the employment is performed. Tiralongo, supra, is such a case, as the act of smoking was done for the claimant’s exclusive enjoyment, and was forbidden by the employer. Id., 334. The Lovallo Court also undertook a separate analysis of whether the claimant’s injury arose out of the employment, and in finding it compensable explained, “It is obvious that this half hour for permissive lunch, rest and smoking, was a fixed incident of the employment at that time and place. By tacit consent of the respondent, the employment comprehended the service of the deceased under these conditions. If, so serving, the deceased was subjected to a danger from the permitted smoking, it was a danger peculiar to that employment, since it included only the twelve men thus employed, and was not a risk to which any member of the general public was exposed. . . . It was an injury which, in the natural course of events, would not have happened save for the conditions [exposure of his clothing to oil and grease] under which the employment was being carried on.” Id., 641. However, in Vitas v. Grace Hospital Society, 107 Conn. 512 (1928), a laundress who had injured herself during the noon rest period while trying to disentangle a curtain from a hot ironing machine was found not to have suffered an injury that arose out of her employment (though it did occur in the course of her employment), because she was attending to her personal laundry at the time, which practice had not been actually or constructively condoned by her employer.
In the instant case, the trier found that the claimant’s injury did not occur as the result of a risk incident to the claimant’s employment or the conditions under which it was required to be performed. We believe that the facts support that legal conclusion. There were two significant factors that contributed to the claimant’s injury, which occurred while she was trying to roll up her car window: the cold weather of January 28, 2000, and the apparently fragile condition of the window handle in her car. Neither of those factors was in any way attributable to the claimant’s employer, or the conditions of her employment. The employer did not have control over the claimant’s personal vehicle. The claimant was not required to work in an abnormally cold environment due to the nature of her employment. No unusual characteristic of the parking lot, or the actions of a fellow employee, contributed to cause the claimant’s wound, unlike the injuries in Desrosins, supra (claimant lacerated hand when he fell in parking lot trying to escape persistent entreaties of fellow employee, who sought to switch hours with him), Russo, supra (claimant fell in parking lot while walking to car), or Cimmino, supra (claimant was hit by car during lunch break while crossing street between workplace and employer-maintained parking garage). Neither the employer’s workplace nor the claimant’s job duties had a direct relationship to the claimant’s injury. Given the facts of this case, we believe that the trier properly applied the law in dismissing this claim for compensation. Therefore, we find no error on appeal.
The trial commissioner’s decision is hereby affirmed.
Commissioners Donald H. Doyle, Jr., and Amado J. Vargas concur.
1 The parties stipulated that the building and the parking lot were owned by New Boston Ballardvale, a limited partnership that was responsible for the upkeep and maintenance of the parking area. The claimant’s employer was one of the business enterprises that leased space in the building. October 3, 2001 Transcript, pp. 17-18. BACK TO TEXT