RICHARD A. MCNAMARA V. TOWN OF HAMDEN ET AL.
Supreme Court of Connecticut
February 6, 1979
Reargued October 3, 1978
176 Conn. 547
COTTER, C. J., LOISELLE, BOGDANSKI, LONGO and SPEZIALE, JS.
Argued December 14, 1977—decision released April 25, 1978—substitute decision released February 6, 1979
Bruce W. Thompson, for the appellee (defendant).
Clifford Davis filed a brief as amicus curiae.
SPEZIALE, J. This appeal presents a question under the Workmen‘s Compensation Act,
The compensation commissioner‘s finding and award discloses the following facts: On April 15, 1975, the plaintiff was employed by the public works department of the defendant town of Hamden. The work day was from 8 a.m. to 4:30 p.m. Some of the work force of about eighty employees were in the habit of assembling in the department‘s garage about a half hour before 8 a.m. They drank coffee, talked and generally passed the time until they went “on the clock” at 8 a.m. and received the day‘s assignments from their supervisors. A few months prior to April 15, about ten or twelve of the “early-birds” obtained permission from the “director or the assistant director” of the department to purchase a ping-pong table and accessories at their own expense and to install the table near their lockers located in a corner of the garage.
The playing space was about twenty-five feet by twenty-five feet. The employer limited the playing
On April 15, 1975, at 7:55 a.m., the plaintiff tripped and fell while playing ping-pong, severely injuring his right ankle. As a consequence he lost time from work and incurred medical and hospital expenses for which he claimed workmen‘s compensation benefits.
From these subordinate facts the commissioner concluded that no benefit accrued to the employer from the employees’ playing ping-pong; that the table was for the exclusive use and benefit of the players; and that, therefore, ping-pong was not an incident of the plaintiff‘s employment or connected with it in any manner so as to require the employer to pay compensation. The commissioner dismissed the plaintiff‘s claim and an appeal was taken to the Court of Common Pleas, where the trial court found that the plaintiff had failed to meet his burden of proof and dismissed the appeal. In denying compensation both the commissioner and the trial court seized upon the lack of benefit to the employer. The plaintiff has appealed to this court from the judgment rendered.
The issue before us is whether the commissioner properly concluded that the plaintiff‘s injury was one not “arising out of and in the course of his employment” within the meaning of
On the record before us, it appears that the parties, the commissioner, and the court have implicitly treated the injury sustained as one “arising out of” the employment, and their focus on this appeal has been on the “in the course of” employment aspect of the test. Thus, we will confine our discussion and review to that element in deciding this case.
In order to come within the course of the employment, an injury must occur (a) within the period
First, the plaintiff was clearly at a place he could reasonably be, on the premises just before he “clocked in.” And he was, according to the definition developed in workmen‘s compensation law, within the period of employment, regardless of the fact that it was five minutes prior to the commencement of the official work day. The exact time is not significant, so long as the employee is on the premises reasonably close to the start or finish of the work day. Mascika v. Connecticut Tool & Engineering Co., 109 Conn. 473, 480, 147 A. 11 (1929); see Hughes v. American Brass Co., 141 Conn. 231, 234, 104 A.2d 896 (1954); Johnson v. Wiese, 125 Conn. 238, 239, 5 A.2d 19 (1939). Moreover, even when an employee is still in the process of coming to or going from work, once he or she is on the premises, whether arriving a little early, or leaving a little late, this court has found the employee to be within the period of the employment. Davis, “Workmen‘s Compensation in Connecticut—The Necessary Work Connection,” 7 Conn. L. Rev. 199, 215-16 (1973-1974), and cases cited therein. Therefore, a distinction based on an activity‘s occurring five minutes before work, as opposed to at lunch or during the last half hour of the work day, would be unwarranted especially because both the early
The crux of this case rests, therefore, on the proper application of the second portion of part (c) of the course of employment test: whether the injury sustained occurred when the employee was doing something “incidental to the employment.” It is this inquiry that has been most subject to distortion from one type of case to another. The “going and coming” cases, in which the employee is injured traveling to or from work; Taylor v. M.A. Gammino Construction Co., 127 Conn. 528, 532, 18 A.2d 400 (1941); and cases cited therein; “personal comfort” cases, in which the employee is attending to some personal need when injured; Puffin v. General Electric Co., 132 Conn. 279, 43 A.2d 746 (1945); Lovallo v. American Brass Co., 112 Conn. 635, 153 A. 783 (1931); and “horseplay” cases, in which an employee is injured while wrestling; Shedlock v. Cudahy Packing Co., 134 Conn. 672, 60 A.2d 514 (1948); Philippe v. Balco, Inc., 12 Conn. Comp. Dec. 35 (1942); have become special categories in the law. See Davis, “Workmen‘s Compensation,” supra, discussing cases by category. In the process special tests have evolved for each factual variation.
For example, in the going and coming cases, it is necessary for the commissioner to find a benefit to the employer before compensation will be awarded. McKiernan v. New Haven, 151 Conn. 496, 499, 199 A.2d 695 (1964). As a result, in going and coming cases that have also involved recreational or social aspects, as when an employee is on the way to a union-sponsored picnic, the benefit test has been
When an employee is on the premises and is within the period of employment, however, it should not be necessary to satisfy the additional test of employer benefit. Rather, the basic test should be remembered and applied: Is this activity incidental to the employment? The meaning of the term “incidental” need not be defined as compulsion by or benefit to the employer in all cases. For example, other activities such as those typical of the personal comfort and horseplay cases fulfill the requirements of place and time, without being of benefit to the employer; and yet compensation may be awarded
This case clearly illustrates the need for a consistent approach to the question of whether certain types of injuries are work related. Experts in the field of workmen‘s compensation law have pointed out the inconsistency of using the employer benefit test in situations such as recreation, personal comfort, and horseplay cases where an employer-sanctioned activity regularly occurs1 on the prem-
The ping-pong game was found by the commissioner not to be of benefit to the employer, a finding we cannot and need not disturb. True v. Longchamps, Inc., 171 Conn. 476, 478, 370 A.2d 1018 (1976); Glenn v. Stop & Shop, Inc., 168 Conn. 413, 416, 362 A.2d 512 (1975); Wheat v. Red Star Express Lines, 156 Conn. 245, 248-49, 240 A.2d 859 (1968). The commissioner did, however, find employer permission and regularity of activity. The employer sanctioned the games by regulating the permitted playing times, by allowing the equipment on the premises, and by setting aside actual work hours in the afternoon for the activity. The games occurred regularly on the premises of the employer. Those facts constitute a sufficient basis on which to conclude that the games were an incident of the employment under the test we now adopt.
We now go a step further and hold that when determining whether the activity is incidental to the employment, the following rule should be applied: If the activity is regularly engaged in on the employer‘s premises within the period of the employment, with the employer‘s approval or acquiescence, an injury occurring under those conditions shall be found to be compensable.
There is error, the judgment is set aside and the case is remanded to the Superior Court with direction to sustain the appeal and to remand the cause to the workmen‘s compensation commissioner to render an award in favor of the plaintiff.
In this opinion COTTER, C. J., LOISELLE and BOGDANSKI, Js., concurred.
LONGO, J. (dissenting). The opinion announced by the majority today correctly focuses on the general issue before us: whether the commissioner properly concluded that the plaintiff‘s injury was one not “arising out of and in the course of his employment” within the meaning of the Workmen‘s Compensation Act. In holding that the commissioner erred in reaching this conclusion, the majority has formulated a “new and expanded test for
As the majority points out, the crucial question is whether the plaintiff was doing something “incidental to his employment” when the accident happened, since the plaintiff concedes, as he must, that he was not injured in the performance of his duties. In considering whether an activity is incidental to employment, we said in Smith v. Seamless Rubber Co., 111 Conn. 365, 368-69, 150 A. 110 (1930): “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.” The commissioner was correct in determining as a matter of fact that no benefit accrued to the employer from the ping-pong playing. The commissioner found, and the plaintiff does not contest, that playing ping-pong had no effect on work habits or work regulations. Especially in light of those find-
The fundamental issue in any case of this nature is whether there is a sufficient connection between the employment and the recreational activity for the activity to be regarded as an incident of the employment. In searching for a work relation, compensation commissioners and courts in this and other states have paid increasing attention to two related factors in addition to benefit to the employer. The first of these is the extent of employer involvement in the activity; the second is the extent to which the activity in question is customarily engaged in by the employee. See Davis, “Workmen‘s Compensation in Connecticut — The Necessary Work Connection,” 7 Conn. L. Rev. 199, 212-13 (1973-1974); 1A Larson, Workmen‘s Compensation Law §§ 22.20-22.24 (1978). I do not believe, however, that either of these factors are present sufficiently in this case to establish a connection between the employment and the ping-pong playing which could make that activity “incidental to the employment.”
The spectrum of employer involvement in employees’ recreational and social activities can range from compulsion, to sponsorship and encourage-
Neither can I agree that the customary nature of the recreational activity on the employer‘s premises prior to and during the work day should be
Numerous on-the-premises recreational injury cases are reviewed in 1A Larson, supra § 22.10; with the possible exceptions of Nichols v. Workmen‘s Compensation Appeals Board, 269 Cal. App. 2d 598, 75 Cal. Rptr. 226 (1969); Mack Trucks, Inc. v. Miller, 23 Md. App. 271, 326 A.2d 186 (1974); and City of Oklahoma City v. Alvarado, 507 P.2d 535 (Okla. 1973), in no case was the mere customary nature of the activity found sufficient, without more, to justify awarding compensation. See Winter v. Industrial Accident Commission, 129 Cal. App. 2d 174, 276 P.2d 689 (1954) (caddy injured on day off while playing golf on employer‘s course); Conklin v. Kansas City Public Service Co., 226 Mo. App. 309, 41 S.W.2d 608 (1931) (baseball encouraged by employer); Geary v. Anaconda Copper Mining Co., 120 Mont. 485, 188 P.2d 185 (1947) (handball injury; employees on call during lunch hour); Uzendoski v. City of Fullerton, 177 Neb. 779, 131 N.W.2d 193 (1964) (lifeguard injured diving into employer‘s pool while on duty); Tocci v. Tessler & Weiss, Inc., 28 N.J. 582, 147 A.2d 783 (1959) (employer supplied
Moreover, I am not convinced, as the majority seems to be, that the “custom” test is but a logical extension of the rationale supporting compensation in the “personal comfort” and “horseplay” cases. While analogous, those cases are not controlling. In the personal comfort cases we have held that employee attention to personal needs during the work day is incidental to employment. See Puffin v. General Electric Co., 132 Conn. 279, 43 A.2d 746 (1945), and Lovallo v. American Brass Co., 112 Conn. 635, 153 A. 783 (1931) (employees compensated for injuries received while taking a permitted smoking break). The rationale for the rule is that routine acts of comfort and convenience, such as taking a drink of water, are reasonably necessary for the health and comfort of an employee, are indirectly conducive to the purpose of the employment, and generally do not interrupt the course of employment. Lovallo v. American Brass Co., supra, 639; see Davis, “Workmen‘s Compensation,” supra.
In the horseplay cases, we have said that employees may be entitled to compensation for injuries sustained in a customary form of horseplay during working hours that was tolerated by the employer. Shedlock v. Cudahy Packing Co., 134 Conn. 672, 676-77, 60 A.2d 514 (1948); Stulginski v. Waterbury Rolling Mills Co., 124 Conn. 355, 360-61, 199 A. 653 (1938). As explained by Cardozo, J., in the leading case of Leonbruno v. Champlain Silk Mills, 229 N.Y. 470, 472, 128 N.E. 711 (1920), the underlying principle is that it is a natural human tendency to indulge in occasional skylarking with one‘s fellow workers. The risks of such physical associations and conditions are risks of the employment. I do not consider playing ping-pong to be in the same category of inevitable horseplay as a shove, a trip, or a punch on the arm.
The majority is of the view that it is anomalous that employee injuries in the personal comfort and horseplay cases may be the subject of compensation, but not the same injuries arising from the planned recreational activities of the employee, and concludes that “[t]he obvious difficulty in drawing such distinctions or weighing such intangibles [employer benefits] is sufficient reason to adopt a new rule which will avoid arbitrary and unjust results.” I cannot agree that the denial of compensation in this case is arbitrary and unjust. The commissioner‘s finding and memorandum of opinion indicate that he found the lack of employer benefit and involvement fatal to the plaintiff‘s claim, notwithstanding the customary nature of ping-pong playing
I would find no error.