Opinion
BOARD No. 06340893
Filed: December 24, 1997
REVIEWING BOARD DECISION
(Judges Wilson, Fischel and Levine)
APPEARANCES
Thomas M. Grady, Esq., for the employee.
Richard E. McCue, Esq., for the insurer.
The employee appeals from the decision of the administrative judge, who denied and dismissed her claim for workers' compensation benefits upon finding that her injury did not arise out of and in the course of her employment. The employee argues, in essence, that the judge construed the meaning of "arising out of and in the course of the employment" too narrowly. We agree and reverse the decision.
The employee, twenty-four years old at the time of the hearing, is a high school graduate and a licensed manicurist. She began working for this employer in November 1990 as a nail manicurist. While employed there, she also trained as a skin care and beauty products consultant. She received certification as a beauty advisor in 1991. (Dec. 4, 5.)
On August 17, 1993, the employee attended a vendor-sponsored beauty care seminar in Bedford, some distance from her usual workplace in Framingham. (Dec. 4, 6, 9.) After eating lunch during a forty-five minute break, the employee and her employer walked out of the hotel door near the seminar room for a cigarette. The employee slipped and fell down a flight of stairs, injuring her right wrist, arm and shoulder. (Dec. 6.)
The employee filed a claim for benefits that was resisted by the insurer. The employee appealed the § 10A conference denial of her claim, giving rise to a hearing de novo at which the insurer maintained that the employee's injury did not arise out of and in the course of her employment. (Dec. 1, 2.) After hearing testimony of the employee, a co-employee and the employer, the judge made the following findings of fact. The employee trained in beauty and skin care products under the direction and supervision of the employer. She also worked on the beauty and skin care products sales floor at the request of the employer, earning an hourly salary and sales commission in addition to her regular pay as a nail technician. After receiving her beauty advisor certification, the employee began training other employees at the direction of the employer. The seminar at which the employee was injured was for beauty advisors and managers, and was held at a hotel in Bedford, some distance from the employee's regular work location in Framingham. The employee was encouraged but not required to attend the seminar, was not paid for the day and was not reimbursed for expenses incurred by her attendance. She drove to the seminar with a co-employee and the employer. (Dec. 4-6.) As to the accident itself, it occurred after lunch was served, on a stairway outside a hotel door about thirty feet from the seminar room. The stairway in question was the same she used to enter the hotel upon arrival. (Dec. 9.)
The following additional findings are of particular note. The employer encouraged the employee's attendance at the seminar because it would enhance the employee's abilities as a beauty advisor, thereby allowing the employee to earn more commissions and bring in increased revenues for the employer. (Dec. 6-7.) The employer would have been charged a cancellation fee had the employee declined to attend. (Dec. 10.) The subject matter of the seminar was clearly within the parameters of the employee's work. Thus, there existed mutual benefit. (Dec. 7.)
In denying the employee's claim, the judge concluded:
Here, the injury did not occur while the employee was pursuing the employer's business. The employer had no control over the employee's activities while the 45 minute lunch break was occurring. . . .
The legal effect of the mutual benefit to the employee and employer by attendance at the beauty seminar does not ipso facto render the relationship one whereby the actual `working premises' are that of the employer only now located at Bedford, Mass., the locus of the seminar. The employer had no control over the seminar, or how it was conducted, when and if breaks were given, when the lunch was to be served or where. The employees were not instructed to sign in and out for breaks and lunch. . . .
The alleged injury occurred away from the employee's [sic] premises in Framingham and I do not consider the locus in Bedford a part of the premises owned or controlled by the employer, Donaher-Sarasin, Inc. . . .
[T]he employee left the seminar room and the adjoining lunch area as well as an area where smoking was permitted and ventured away independently for a smoke outside. I find employee's activity not within the zone of employer responsibility. . . .
I find the employee was not benefiting her employer but chose to independently pursue her own personal activity by smoking outside. I find the injury to the employee is `beyond the risk that the employer is required to bear.' [citation omitted] I note also that the room adjacent to the lunch area apparently permitted smoking so there was no reason to leave the seminar area.
(Dec. 9-12.)
Claimants are entitled to workers' compensation benefits for incapacity causally related to personal injuries that arise out of and in the course of employment. G.L.c. 152, § 26. See Frassa v. Caulfield, 22 Mass. App. Ct. 105, 109 (1986). The applicability of the "going and coming" rule, which bars recovery for injuries sustained while travelling to and from the place of employment, rests on a determination of whether the facts of the case "require the conclusion that the . . . [slip and fall on the stairs at the Bedford seminar during a break] arose from any risk with which the claimant's employment brought [her] in contact . . . or from any aspect of the job — `the nature, conditions, obligations or incidents of the employment.'" Ware's Case, 361 Mass. 885, 886 (1972), quoting Caswell's Case, 305 Mass. 500, 502 (1940); seePallucio v. Department of Revenue, 11 Mass. Workers' Comp. Rep. 325, 327 (1997). The court inWare's Case, supra, succinctly summarized the inquiry as "whether the claimant's employment brought her in contact with the risk which actually caused her injuries."
We examined the "going and coming" cases in the context of a premises issue in Pallucio v. Department of Revenue, supra. We need not repeat that entire analysis here. We focus on two Supreme Judicial Court decisions that, read together, provide direction in deciding the case before us. In Kubera's Case, 320 Mass. 419 (1946), the court observed that benefits are not necessarily barred for an injury that occurred during an unpaid break. The court found that being injured "while on his employer's premises before or after his regular hours of labor had begun or ended or during a regular intermission in the day's work, and while he was not actually engaged in the performance of the duties for which he was hired, does not preclude him from an award of compensation if at the moment of his injury he was occupying himself in some manner incidental to his employment." Id. at 421. The court went on to say that rest and relaxation during a break period could be found to be incidental to employment. Id.; see also,Bradford's Case, 319 Mass. 621, 623 (1946) (employee not precluded from compensation where injured while smoking on work premises).
Benefits were awarded to the family of a worker who was fatally injured while returning from a business meeting held at a hotel.Caron's Case, 351 Mass. 406 (1966). The court concluded that, while each case must be decided on its facts, the fact that the injury occurred somewhere other than the usual work location and outside the normal work hours did not preclude compensability where it appeared that "it was the employment which impelled the employee to make the trip." Id. at 409 (citations omitted).
In our view, the facts found by the administrative judge lead inexorably to a conclusion that the employee's employment impelled her to attend the seminar, and that the smoking break on the seminar premises was incidental to her employment. Accordingly, this employee's fall on the stairway during a break, while attending an off-site seminar which benefitted the employer and which the employer encouraged the employee to attend, resulted in a personal injury within the meaning of the Act.
The decision is reversed. The case is recommitted to the administrative judge for findings on the employee's claims for weekly incapacity and medical benefits.
So ordered.
________________________ Sara Holmes Wilson Administrative Law Judge
________________________ Carolynn N. Fischel Administrative Law Judge
________________________ Frederick E. Levine Administrative Law Judge
Filed: December 24, 1997