BROWN v. UTC/PRATT WHITNEY, NO. 5145 CRB-8-06-10 (10-23-2007)

SHARON BROWN, CLAIMANT-APPELLEE v. UTC/PRATT WHITNEY, EMPLOYER, AND. AIG CLAIMS SERVICES, INC., INSURER, RESPONDENTS-APPELLANTS

CASE NO. 5145 CRB-8-06-10 CLAIM NO. 800148610CONNECTICUT COMPENSATION REVIEW BOARD CONNECTICUT WORKERS’ COMPENSATION COMMISSION
OCTOBER 23, 2007

This Petition for Review from the September 26, 2006 Finding and Award of the Commissioner acting for the Eighth District was heard April 27, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.

The claimant was represented by Mark Merrow, Esq., 760 Saybrook Road, Middletown, CT 06457.

The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton Stabnick, 95 Glastonbury Boulevard, CT 06033.

Page 2

OPINION
JOHN A. MASTROPIETRO, CHAIRMAN.

The present appeal concerns a lunchtime injury suffered by the claimant while walking on her employer’s premises. The trial commissioner concluded this injury was a compensable injury within the scope of Chapter 568. The respondents have appealed. We conclude that the trial commissioner improperly found that this injury was incidental to the claimant’s employment. Therefore, we uphold the appeal and vacate the trial commissioner’s Finding and Award.

The trial commissioner found the following facts. The claimant has been employed at Pratt Whitney since 1978 and works as a clerk in the shipping department. She does not take a standard lunch break. When she takes a lunch break she customarily takes a walk when the weather permits around the grounds of the employer’s campus. On July 8, 2005 the claimant was walking on a road on the grounds of Pratt Whitney when she tripped while avoiding an oncoming car and fell on some gravel injuring her right shoulder. She testified that she pursues walking for the betterment of her health and no special permission from her supervisors is required for her to walk. She reported her July 8, 2005 injury to her supervisor.

The critical issue for the trial commissioner was whether the claimant was doing something “incidental” to her employment at the time she was injured. The respondents cited Mazzone v. Connecticut Transit, 240 Conn. 788 (1997) for the proposition walking during a lunch hour was not “incidental” to her employment; the trial commissioner however disagreed on that point and also concluded other factors made this injury a compensable injury. He found that the employer was aware and acquiesced to the

Page 3

practice of employees walking on the campus during lunch hour. He also found that the practice of physical activity on unpaid breaks enhanced the health of Pratt Whitney employees. Finally, he concluded the claimant’s activity on July 8, 2005 while walking on her lunch break did not qualify for the “social-recreational exception” under § 31-275(16)(B)(i) C.G.S.

The respondents filed a Motion to Correct, which was denied. They also sought to introduce additional evidence, the “Connecticut Statewide Comprehensive Outdoor Recreation Plan” issued by the state Department of Environmental Protection. That effort was denied as well.[1] The respondents have appealed.

We focus our attention on whether the trial commissioner appropriately determined that this injury was “incidental” to the claimant’s employment. Both parties have taken the position that Mazzone, supra, is the foremost authority on the issue of injuries sustained during a lunch break. We believe that the facts of this case are greatly divergent fromMazzone and as a result reach a different conclusion as to compensability. In Mazzone the claimant was injured during an unpaid lunch break while eating lunch on the employer’s premises. The Supreme Court held, “[w]e conclude, accordingly, that the claimant has established that the activity of eating lunch, out of which his injuries reasonably arose, was incidental to his employment.” Id., 795. In this present case it is undisputed the claimant was not eating lunch when she was injured.

The trial commissioner concluded the facts of this case established that the injury was incidental to her employment. Since we must extend “every reasonable presumption”

Page 4

in favor of the trier’s findings Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007) we must review the subordinate findings of fact to ascertain whether this conclusion is reasonable. We do not believe the subordinate facts found by the trial commissioner support the trial commissioner’s findings that the claimant’s injuries were incidental to employment. The trial commissioner specifically found the claimant had been released from employment for lunch prior to her injury. Findings, ¶ 4. He also found that the claimant pursues walking for the betterment of her health. Findings, ¶ 9.

While such activity may well be beneficial, the trial commissioner did not reach any subordinate finding of fact that the claimant’s purpose in undertaking her physical fitness regimen was intended to benefit her employer. The record herein indicates that while Pratt Whitney acquiesced to employees walking during their lunch hour, there is no evidence on the record they promoted this activity or encouraged employees to participate. Therefore, we conclude the record is undisputed in that the respondent established the claimant’s decision to walk was voluntary. We therefore look to the evidence before the trial commissioner as to the claimant’s motivation for engaging in voluntary walking during her free time at the Pratt Whitney complex. The claimant’s own testimony was that she decided to “walk for my health.” May 15, 2006 Transcript, p. 5. The record does not indicate that the claimant intended to benefit her employer by walking on their grounds during her lunch break nor does it indicate that the employer was aware it was receiving any benefit from the claimant’s unilateral and voluntary decision to engage in a regimen of walking for her health during a period where she was “off the clock.”[2]

Page 5

We recently have determined that walking to a parking facility or traveling to an authorized medical appointment can create a “mutual benefit” for both employer and employee, see Meeker v. Knights ofColumbus, 5115 CRB-3-06-7 (July 3, 2007) or Houlihan v. City ofWaterbury-Police Department, 5141 CRB 5-06-10 (September 26, 2007). The evidence before the trial commissioner provides no basis to conclude the claimant’s activities fall within these parameters. The factual evidence herein indicates the claimant undertook this activity exclusively for her own purposes. The precedent in Smith supra, makes clear that such injuries are not incidental to employment and are hence, not compensable.[3]

Where an employer merely permits an employee to perform a particular act, without direction or compulsion of any kind, the purpose and nature of the act becomes of great, often controlling significance in determining whether an injury suffered while performing it is compensable. If the act is one for the benefit of the employer or for the mutual benefit of both an injury arising out of it will usually be compensable; on the other hand, if the act being performed is for the exclusive benefit of the employee so that it is a personal privilege or is one which the employer permits the employee to undertake for the benefit of some other person or for some cause apart from his own interests, an injury arising out of it will not be compensable. Id., 368-369.

We also note the claimant had exclusive control as to where she chose to walk. The incident in question, while on the respondents’ property, occurred on a road utilized

Page 6

for vehicular access. We find the circumstances herein far more akin toSpatafore v. Yale University, 239 Conn. 408 (1996) thanMazzone, supra. The sole difference herein is the claimant inSpatafore was injured on a public street.[4] We believe this road was comparable in its purpose, and similar to the claimant inSpatafore, the claimant’s activities, while acquiesced to by the respondents, did not benefit them based on evidence in the record. To the contrary, there is long precedent that eating lunch constitutes a mutual benefit to employer and employee; Mann v. Glastonbury KnittingCo., 90 Conn. 116, 120 (1916); Vitas v. Grace Hospital Society, 107 Conn. 512, 516 (1928).

Since the subordinate facts and evidence in the record do not support a finding that the claimant’s injury was incidental to her employment, we cannot find a “mutual benefit” accrued to both parties from the claimant’s activities. In addition, we must determine that the trial commissioner’s Finding ¶ c. “The health of Pratt Whitney workers was surely enhanced by any type of reasonable physical activity pursued on company grounds during unpaid breaks by its employees” must be discounted as being inconsistent with the evidence on the record. This finding is unsupported by any probative evidence on the record.[5] SeeSullivan v. Town of Madison-Police Department, 4893 CRB-3-04-12 (June 9, 2006) “the trial commissioner simply had insufficient evidence as a matter of law to justify his Finding and Award.”[6]

Page 7

The respondent further argues that Public Act 93-228 § 1(16)(B)(i) renders the injury in this case noncompensable as a matter of statute. They cite a number of cases where injuries sustained by employees who engage in recreational activities on their own initiative were found noncompensable, i.e. Hardt v. Watertown, 95 Conn. App. 52 (2006);Brown v. Department of Correction, 89 Conn. App. 47 (2005) andSendra v. Plainville Board of Education, 3961 CRB-06-9901 (January 20, 2000). Since we determine the claimant in this case did not present a prima facia case that her injury was incidental to her employment, it is not necessary to determine whether the injury falls within the statutory “social/recreational exception” from coverage under Chapter 568.

Therefore we uphold the respondents appeal and vacate the Finding and Award of September 26, 2006. Commissioners Amado J. Vargas and Scott A. Barton concur in this opinion.

[1] We uphold the trial commissioner on the issue of admitting additional evidence. We do not believe this document was of sufficient relevance to the probative issues at hand to warrant its admission. In addition, it was sought to be admitted after the filing of briefs and was untimely as per Pantanella v. Enfield Ford, 65 Conn. App. 46, 57-58
(2001).

[2] The recent case of Blakeslee v. Platt Brothers, Co., 279 Conn. 239
(2006) points out acquiescence can be implied by virtue of the employer having received a benefit. Id., 250. In the absence of evidence of a benefit to an employer, we believe the precedent in Smith v. SeamlessRubber Co., 111 Conn. 365 (1930) weighs against finding an act is incident to employment when the claimant is injured outside his or her hours of employment.

[3] While we note that the trial commissioner found a number of Pratt Whitney employees walked around the premises on their lunch breaks (Findings, ¶ 5), we are not persuaded based on the facts that this meets the test in McNamara v. Hamden, 176 Conn. 547 (1979) for compensability. We note in McNamara the employer affirmatively permitted the employees to bring a ping-pong table to work; in the present circumstance the claimant was injured during a walk when she avoided a motor vehicle traveling on the same road (Finding, ¶ 6). We can infer that the primary purpose of the thoroughfare which was the locus of this injury was to provide vehicular access to the Pratt Whitney facility, and not a walking path or trail maintained for the benefit of employees. We also note the Supreme Court has stated “[we] recognize that the enactment of § 31-275(16)(B)(i) raises questions about the continued viability of theMcNamara decision with respect to the facts of that case.” Herman v.Sherwood Industries, 244 Conn. 502 (1998) n5. We also can distinguish the facts in Herman, establishing activity “incidental to employment” (terminated employee injured while picking up tools) from the situation herein.

[4] We believe our precedent establishes that when a pedestrian travels off the customary paths for walking that this creates “an extraordinary peril quite outside of any risk connected with his employment.” Mason v. Alexandre, 96 Conn. 343, 345 (1921).

[5] Compare with Smith, supra, (firm offered employees vaccinations to prevent epidemic, but benefit to employer could not be inferred).

[6] We believe this finding is analogous to the claimant’s arguments regarding “mutual benefit” struck down in Spatafore, supra, “[w]hile these provisions may be laudatory, they are insufficient to establish the requisite mutual benefit.” While physical exercise may be beneficial in a general sense, we believe evidence on the record would be relevant to a finding a specific employer received a benefit. Id., 426.

Page 1