Opinion
CASE NO. 3066 CRB-2-95-5
NOVEMBER 13, 1996
The claimant was represented by Amy M. Stone, Esq., O'Brien, Shafner, Stuart, Kelly Morris, P.C.
The employer was represented by Michael J. Belzer, Esq., Assistant Attorney General.
This Petition for Review from the May 18, 1995 Finding and Award of the Commissioner acting for the Second District was heard May 10, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George Waldron and Robin L. Wilson.
OPINION
The employer has petitioned for review from the May 18, 1995 Finding and Award of the Commissioner acting for the Second District. In that decision, the trial commissioner concluded that the claimant's injury, which occurred at the end of her work day when she reached for her pocketbook, arose out of and in the course of her employment. In support of its appeal, the employer contends that the injury did not arise out of and in the course of the claimant's employment as it occurred during the act of reaching for her pocketbook, a personal belonging, which was not incidental to her job duties.
The commissioner made the following relevant findings of fact. The claimant worked as a registration examiner for the employer. On September 19, 1990, at approximately 4:30 P.M., the claimant "suffered an injury to her low back while reaching for her pocketbook after concluding her work duties at the Department of Motor Vehicles." (Finding B). Based upon common experience, "most female employees utilize a purse to carry their personal belongings while at work." (Finding No. 13). Furthermore, the trial commissioner found that "(k)eeping a purse containing one's personal belongings near or at the employee's assigned work station is incidental to the Claimant's employment and for the mutual advantage of employee and employer." (Finding F). Because the employer has not filed a motion to correct, 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).
Whether the trier erred in finding that the claimant's injury arose out of and in the course of her 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, 540 (1988). This board has recently stated the following:
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, 1792 CRB-1-93-8 (decided 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, 297-298, 2012 CRB-1-94-4 (Sept. 11, 1995).
In the instant case, the employer does not dispute that the claimant's injury occurred during the period of her employment. The employer specifically states in its brief that whether the claimant "was injured a minute before, or a minute after her official end of the work day is not relevant to deciding the issue before this body." (Employer's Brief at p. 6). Nor does the employer dispute that the injury occurred at a place where the claimant "may reasonably be." Rather, the employer contends on appeal that the claimant's injury occurred while she was performing a purely personal task which was not related to her job duties and was not incidental to her employment. We agree with the employer's argument.
"First of all, the state does not question (and has not questioned) that the claimed injury occurred within her period of employment as contemplated in McNamara [McNamara v. Hamden, 176 Conn. 547 (1979)]." (Employer's Brief at p. 5).
Section 31-275(1) defines "arising out of and in the course of his employment" to mean "an accidental injury happening to an employee or an occupational disease of an employee originating while he has been engaged in the line of his duty in the business or affairs of an employer upon the employer's premises, or while engaged elsewhere upon the employer's business or affairs by the direction, express or implied, of the employer . . . ." Furthermore, Our Supreme Court has stated that in order for an injury to be compensable, "(t)here must be some reasonable connection between the injury suffered and the employment or the conditions under which it is pursued." Jacquemin v. Turner Seymour Mfg. Co., 92 Conn. 382, 387 (1918).
In the instant case, it cannot be reasonably inferred from the facts as found by the trial commissioner that the claimant's act of reaching for her pocketbook, a personal belonging, was an act which occurred while the claimant was "engaged in the line of (her) duty in the business or affairs of an employer" as required by § 31-275(1). The facts as found by the trial commissioner do not support a conclusion that the claimant's injury occurred while she was performing an act which was incidental to her employment. See Renckowski v. Yale University, 11 Conn. Workers' Comp. Rev. Op. 48, 1292 CRD-3-91-9 (March 18, 1993) (injury held not compensable which occurred during paid coffee break at adjacent restaurant, even though activity regularly practiced by employees and acquiesced to by employer); see also Mazzone v. Connecticut Transit, 2246 CRB-3-94-12 (decided Aug. 6, 1996) (injury held not compensable where claimant was not doing anything in furtherance of the employer's business or incidental to it when injury occurred during lunch break).
The trial commissioner's decision is reversed.
Commissioner Robin L. Wilson concurs.
I respectfully disagree with the majority opinion. In the instant case, the trial commissioner concluded that the claimant's act of retrieving her purse from its resting place near her desk was an act incidental to her employment. The trial commissioner's decision should be upheld as it was not made without evidence, contrary to law or based on unreasonable or impermissible factual inferences.
Whether an injury arose out of and in the course of the claimant's employment is a factual determination for the trial commissioner. Fair, supra, at 541. In determining whether a particular injury arose out of and in the course of employment, the trial commissioner "must necessarily draw an inference from what he has found to be the basic facts." Fair, supra, at 539. Therefore, the "scope of judicial review of that inference is sharply limited . . . ." Id.
The employer contends that the injury did not arise out of the claimant's employment because it involved a personal act. However, the Supreme Court has stated:
[I]t has been many times held that a momentary or brief turning from the specific duty of the employee to other matters necessary or convenient in the ordinary course of things to enable the employee to continue in the performance of his duties, does not interrupt the continuity of employment. Such departures are very properly held to be acts naturally incident to the employment itself. Ryerson v. Bounty Co., 107 Conn. 370, 375 (1928).
This board has acknowledged that "acts relating to the personal comfort of an employee come within the scope of employment."Renckowski v. Yale University, 11 Conn. Workers' Comp. Rev. Op. 48, 50, 1292 CRD-3-91-9 (March 18, 1993); see also Ryerson, supra (injury which occurred while tying shoe lace compensable); Puffin v. General Electric Co., 132 Conn. 279 (1945) (injury which occurred while smoking during a break compensable). Moreover, the Connecticut Supreme Court has stated:
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 Workers' 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. Renckowski, supra, at 50 (citing Lovallo v. American Brass Co., 112 Conn. 635, 639 (1931)).
In the instant case, the trial commissioner specifically found that the claimant's keeping of her personal belongings in a pocketbook near her work station was incidental to her employment and was for the mutual advantage of the employee and employer. It is certainly a reasonable inference to conclude that the claimant needed to keep her pocketbook in a safe place during work hours. Accordingly, the trial commissioner's decision should not be disturbed. See Fair, supra, at 539.
For the above reasons, I would affirm the trial commissioner's decision.