Herman v. Sherwood Industries, Inc.

The claimant was represented by Daniel Silver, Esq., Silver, Webb, Sweeney & Griffe n, 114 West Main St., New Britain, CT 06051.

The respondents were represented by Joseph Skelly, Jr., Esq., Edward M. Henfey & Associates, 55 Farmington Ave., Suite 500, Hartford, CT 06105.

This Petition for Review from the December 5, 1995 Finding of Jurisdiction of the Commissioner acting for the Sixth District was heard October 11, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Robin L. Wilson and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the December 5, 1995 Finding of Jurisdiction of the Commissioner acting for the Sixth District. The parties have stipulated that the claimant had been employed with Sherwood Industries for nine years as of July 8, 1994, when he was terminated for personnel reasons. As some of the tools that the claimant used were his, a company foreman packed them in the claimant’s personal toolbox and placed it on the loading dock, which is four to five feet off the ground, and located on the employer’s premises. After his exit interview, the claimant was escorted to the loading dock to pick up his toolbox. The claimant alleges that he sustained a lumbar spine injury while lifting his toolbox off the loading dock.

The commissioner found that the claimant was in a place where he could reasonably be while picking up his toolbox, and that he had not yet left the business premises. He concluded that this act was within the course of the claimant’s job, and that he at least had alleged a compensable injury. The respondents have appealed that decision to this board, arguing that the claimant was no longer an employee of the company when he picked up his toolbox after being fired.

In order for the Workers’ Compensation Act to apply, a claimant’s injury must arise out of and in the course of his employment. Fulco v. Norwich Roman Catholic Diocesan Corporation, 27 Conn. App. 800, 807 (1992), appeal dismissed, 226 Conn. 404 (1993); Senatro v. Royal Insurance Co., 14 Conn. Workers’ Comp. Rev. Op. 44, 46, 1890 CRB-8-93-11 (May 4, 1995); § 31-284 C.G.S. Section 31-275(1) C.G.S. defines “arising out of and in the course of employment” to include accidental injuries “originating while [the employee] has been engaged in the line of his duty in the business or affairs of the employer upon the employer’s premises . . . .” Thus, in order to come within the course of 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, 551 (1979). In order to arise out of the employment, the injury must occur in the course of the employment and be the result of a risk incident to the employment or the conditions under which it is performed. Tovish v. Gerber Electronics, 32 Conn. App. 595, 607 (1993), appeal dismissed, 229 Conn. 587 (1994); see also Crochiere v. Board of Education, 227 Conn. 333, 349 (1993).

The respondents’ position in this case hinges on the fact that the claimant was terminated prior to being injured, and that he was thus no longer working “under any contract of service” with Sherwood Industries, as required by the statutory definition of “employee” in the Act. See § 31-275(9)(A)(i). They cite Fulco, supra, in support of their position. There, our Appellate Court reversed a trial court’s decision to preclude a claimant from suing his former employer for negligent infliction of emotional distress based on the exclusivity provision of the Act. The court held that the claimant’s emotional distress arose out of his discharge, not his employment, and that it would “unduly strain the language of the statute for us to conclude that termination of employment creates a job related injury.” Id., 808. The court noted that the process of being fired is not a duty of employment, and is not conduct regularly engaged in as an incident to employment. Id., 808-809. This board followed Fulco in Senatro v. Royal Insurance Co., 14 Conn. Workers’ Comp. Rev. Op. 44, 1890 CRB-8-93-11 (May 4, 1995), where we dismissed a claim for a compensable psychiatric condition because the claimant’s emotional distress was related to her reaction to her impending discharge rather than to any employment-related duties.

Despite the claimant’s argument to the contrary, we believe that the decision in Fulco and our decision in Senatro guide our decision here. In Fulco, the court relied on the fact that the claimant’s injury could not have occurred during his employment because his employment had been terminated before the injury arose. Id., 808. Although the injury in this case is a physical injury rather than an emotional injury, it still occurred after the employment contract had been terminated. As noted in Senatro, supra, a recent legislative amendment excluded mental and emotional impairments caused by personnel actions from the definition of “personal injury.” Section 31-275(16)(B)(iii) C.G.S. This case may not be directly controlled by that statute, but the legislative policy favoring a narrower construction of the scope of the employment period is evident from that amendment. Moreover, this construction does not favor the employer only. Once a case is removed from the scope of the Workers’ Compensation Act, an employee is free to bring suit against his employer for negligently causing his injury. The removal of the workers’ compensation remedy has advantages and drawbacks for both sides.

The trial commissioner’s decision is reversed.

Commissioner Robin L. Wilson concurs.

COMMISSIONER AMADO J. VARGAS, DISSENTING. I am not persuaded that the instant case is similarly governed by Fulco. In both Fulco and Senatro, the claimants alleged emotional distress that was caused by the circumstances surrounding their respective terminations from employment. In fact, our legislature amended the definition of “personal injury” in 1993 to exclude “[a] mental or emotional impairment which results from a personnel action, including, but not limited to, a transfer, promotion, demotion or termination.” § 31-275(16)(B)(iii) C.G.S. The case at bar is not about a mental or emotional impairment, however. Instead, it concerns a physical injury that, although preceded by termination, was not a mere reaction to the claimant’s firing. It was simply a physical injury suffered while picking up a toolbox.

Our courts have stated that “[w]hen an employee is on the premises and is within the period of employment, . . . the basic test should be remembered and applied: Is this activity incidental to the employment?” McNamara v. Hamden, 176 Conn. 547, 553 (1979). Even when an employee is in the process of arriving at or leaving work, once he or she is on the premises, our Supreme Court has found the employee to be within the period of employment. Id., 551, citing Davis, “Workmen’s Compensation in Connecticut—The Necessary Work Connection,” 7 Conn. L. Rev. 199, 215-16 (1973-74), and cases cited therein.

Moreover, Larson’s treatise states that compensation coverage “is not automatically and instantaneously terminated by the firing or quitting of the employee. He is deemed to be within the course of employment for a reasonable period while he winds up his affairs and leaves the premises.” 1A Larson, Workmen’s Compensation Law § 26.10, p. 5-312 (1996); see, e.g., Leonhardt Enter. v. Houseman, 562 P.2d 515 (Okla. 1977) (worker who quit and then injured his back when he fell leaving the premises suffered a compensable injury). Larson goes on to state that the normal rule is that an employee is still acting in the course of employment while collecting pay; § 26.30, p. 5-330; and while collecting one’s personal effects such as clothes and tools while leaving employment; § 26.40, p. 5-340 to 5-343; “since both are necessary incidents of an orderly termination of the employment relation.” Id., 5-340; see Mitchell v. Hizer, 140 Cal. Rptr. 780 (1977) (applicant was retrieving tools from logging site when a tree fell on him; civil negligence action dismissed, as collection of personal effects was a necessary incident of termination of employment); see also Nails v. Market Tire Co., Inc., 347 A.2d 564 (1975).

Here, the trial commissioner found that the claimant was in a place he could reasonably be on the employer’s premises when he picked up his toolbox on his way out. The act of going home from work is not automatically excluded from the employment period, and I do not think the case here should be different because the claimant was fired that day. He still needed to exit the premises, and his employer created the risk in this case when another employee loaded up his toolbox and placed it on the loading dock, where the claimant had to reach up to get it. Although I recognize the concerns regarding credibility that one would have in a case where a claimant reports an injury immediately after being fired, that issue is one for the trial commissioner to determine when he considers the merits of the case. As to the allegation of a compensable injury, I would hold that the commissioner properly found jurisdiction in this case.