Opinion
BOARD Nos. 17612290, 00655493
Filed: June 27, 1997
REVIEWING BOARD DECISION
(Judges Wilson, Fischel, and Levine)
APPEARANCES
James J. Collins, Esq., for the employee.
Patricia G. Noone, Esq., for the self-insurer.
The employee appeals from a decision in which the administrative judge denied his claim for workers' compensation benefits by finding that the subject injury did not arise out of his employment as a tax examiner with the Massachusetts Department of Revenue. The employee slipped and fell during a fifteen minute break, while walking back to his office through a courtyard/mezzanine controlled by the Commonwealth. The employee argues that the judge construed the premises of his employer too narrowly, claiming that the injury must be found work-related where the employer's courtyard/mezzanine was contiguous to his place of employment. We agree and reverse the decision.
This outdoor area is referred to by the judge as both a courtyard and a mezzanine.
The employee worked for the Commonwealth as a tax examiner for the Department of Revenue in the Saltonstall Building. (Dec. 3, 5-6.) On March 15, 1993, the employee slipped and fell on ice and snow on the steps of the courtyard/mezzanine between the Saltonstall Building and the McCormack Building. (Dec. 6.) The employee was on his break and was returning to work after checking the bulletin board at the McCormack Building for job postings, a common practice for him. (Dec. 5, 6.) When walking to and from the McCormack Building, the employee would normally use the back doors of the Saltonstall Building and go across the courtyard/mezzanine. (Tr. 18.)
The self-insurer did not dispute that the courtyard/mezzanine where the accident occurred is property under the control of the Commonwealth. (Dec. 5; Self-insurer's brief 3-4.) The self-insurer's defenses to the employee's claim were that the courtyard/mezzanine, albeit contiguous to the Saltonstall Building where the employee worked, was not property under the control of the Department of Revenue, and that the employee was not performing any job function at the time he was injured. (Self-insurer's brief 2-4.)
The judge shared the self-insurer's view of the evidence, and denied the claim, concluding:
1. The employee's place of employment on the date of 3/15/93 was in the Saltonstall Building on the premises of the Department of Revenue.
2. Based on his testimony, I find that the employee slipped and fell on the stairs on the mezzanine between the Saltonstall and McCormack building during his work break and off the premises of the Department of Revenue.
3. I find that the employee's activity while on break was not incidental to his employment duties but was committed to enhance the possibility of his personal gain.
4. I find that the Department of Revenue is the claimant's employer since it is the agency to which the employee owes the benefits of his labor and to which he reported his injury as part of what the agency reasonably expected of him. Further, to interpret c. 152's definition of employer as being the Commonwealth and not the Department of Revenue would, for the purposes of this Act, broaden the definitions of employer, premises, and going and coming, to the point of meaninglessness from a too literalistic interpretation of the Act.
(Dec. 9-10.)
In our review of the thorny question this case presents regarding the applicability of the "going and coming" rule, we must determine whether the facts of the case "require the conclusion that the . . . [slip and fall on the courtyard/mezzanine during a break] arose from any risk with which the claimant's employment brought [him] 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). While recognizing the conclusiveness of the judge's fact-finding, we determine on those facts that the employee's injury did arise from the conditions and incidents of his employment with the employer/self-insurer, the Commonwealth of Massachusetts. We therefore reverse the decision.
The judge correctly focused on the dispositive issue in his analysis: whether the employee was on the "premises" of the employer when his accident occurred. But our review of the case law indicates that the locus of the accident — the courtyard/mezzanine that is contiguous to the employee's place of employment in the Saltonstall Building — should be considered a part of the employer's premises. This determination compels a finding of liability for the injury under the Act.
As a threshold matter, the case law establishes the availability of workers' compensation coverage for injuries that occur when an employee is on break and on the premises of the employer. In Sundine's Case, 218 Mass. 1, 4 (1914), the court stated:
The first contention, that [the employee] was not in the employ of [the employer] while she was going out to lunch, cannot be sustained. Her employment was by the week. It would be too narrow a construction of the contract to say that it was suspended when she went out for this merely temporary purpose and was revived only upon her return to the workroom. It was an incident of her employment to go out for this purpose. [citations omitted] The decisions upon similar questions under the English act are to the same effect. Blovelt v. Sawyer . . ., which went on the ground that the dinner hour, though not paid for, was yet included in the time of employment.
The employee in Sundine's Case fell while on common area stairs, which provided the only means available for going to and from the place of employment. The court concluded:
It was a necessary incident of the employee's employment to use these stairs. We are of the opinion that according to the plain and natural meaning of the words an injury that occurred to her while she was so using them arose "out of and in the course of" her employment.
Id. at 5.
For the purposes of analysis of injuries while on break, there is no difference between a lunch or coffee or other break. In Kubera's Case, 320 Mass. 419 (1946), the employee was injured while taking a smoke break on the front stairs of the building in which he worked. The court ruled the injury compensable because "[t]here was a causal connection between the employment and the injury if the employment exposed the employee to the risk which caused the injury." Id. at 420. In White v. E.T. Slattery Co., 236 Mass. 28, 34 (1920), the court held that an employee on a personal errand was within the coverage of the Act, reasoning:
Numerous of our cases illustrate the principle that the sphere of employment exists and affords its shield to the employee while within the premises of the employer on the way to or on the return from actual performance of the specific duties of the employment. [citations omitted.]
The plaintiff was leaving the store of her employer with the purpose of doing an errand on her own account having no relation to her employment. The fact is of no consequence under these circumstances. She was doing it on her own time and not on her employer's time. She was in this particular in the same condition as she would have been if leaving the store at the end of her labor for the day. She had a right under the terms of her employment to go out at the lunch hour on her own affairs. She was as much within the scope of her employment as were any of the employees in the cases cited where they have been held within the protection of the act.
Id. at 34 (emphasis added). The pertinent "circumstances" to which the court referred in White were that the employee was in the store where she worked, leaving by the ordinary means of exit and, as such, was on the premises of the employer. Id. at 34 (emphasis added). "[I]t is enough if [the employee] is upon his employer's premises occupying himself consistently with his contract of hire in some manner pertaining to or incidental to his employment." Bradford's Case, 319 Mass. 621, 622 (1946); seeBaran's Case, 336 Mass. 342, 344 (1957), and cases cited. Where an employee "slipped and fell to the tile floor in the public lobby of the bank [in which she worked] after she had returned from a personal errand[,]" the court held that the injury was compensable. Harlow's Case, 345 Mass. 765 (1962) (rescript op.). Just as in Harlow, Mr. Palluccio was returning to his work duties after completing a personal errand — checking the bulletin board — when he fell. To the extent that the employee here was on the employer's premises at the time of his slip and fall, the Act provides coverage for such an accident. The narrower and more difficult question now confronts us: What constitutes "premises" for the purposes of determining the geographic range of the Act's coverage while an employee is on break?
Compare Ware's Case, 361 Mass. 846 (1972) (compensation denied for a lunch break injury that indisputably occurred off the employers premises in a shopping center) and Bedore's Case, 339 Mass. 639, 642 (1959) (compensation denied for an injury during coffee break while on the employer's premises, based on the finding that no personal injury actually occurred at that time).
Professor Larson encapsulates the general meaning of "premises" in the following passage of his treatise, and then goes on to elaborate, with relevance to the present case:
It is implicit in most of the decisions . . . that the term "premises" includes the entire area devoted by the employer to the industry with which the employee is associated. . . . If the employee works for a college, the premises has been held to be [the] entire campus . . . . (footnotes omitted.) [Warren's Case, 326 Mass. 718 (1951).]
When the place of employment is a building, it is not necessary that the employer own or lease the place where the injury occurred. It is sufficient if he has some right of passage, as in the case of common stairs [Sundine's Case, supra], elevators, lobbies, vestibules, concourses, hallways, walkways, footbridges, driveways, or passage ways through which the employer has something equivalent to an easement. (footnotes omitted). [Mannering's Case, 290 Mass. 517 (1935).]
1 A. Larson, The Law of Workmen's Compensation, §§ 15.41, 15.43, (1996) (footnotes omitted). See also L. Locke, Workmen's Compensation, 263 (2d ed. 1981)("What has emerged is a general policy that, unless other circumstances prevail, the place of employment is limited to premises owned or tenanted by the employer or those over which he and his employees have a right of passage.") We think that the commentators' appraisal of "premises" in the context of the going and coming rule is instructive as to the present set of facts. It is apparent that "premises" is a concept of some elasticity. With that in mind, and having reviewed and applied the varied case law, we reach the conclusion that the present injury is compensable.
Warren's Case, 326 Mass. 718 (1951), is particularly apposite to the present case. There, the employee suffered an injury while on the campus of the employer, Springfield College, as he proceeded to an administrative office to sign tax forms on his first day of work. The opinion makes clear that the employee was not in the vicinity of the athletic field house where he was to perform his work duties. Warrens Case, id. at 718-719. Nonetheless, the court held that the employee's injury was compensable, as he was in the course of his employment on the grounds of the employer when the accident occurred. Id. at 721. Thus, after review of a number of Massachusetts premises cases, the necessary implication is that the employee was within the scope of his work when he was on the campus that was under the control of the employer college and not merely in the particular area where the employee was to work. As there is no dispute in the present case regarding either the Commonwealth's control over the courtyard/mezzanine where the accident occurred or its contiguousness to the Saltonstall Building where the employee worked, it is an apt analogy to consider that the accident occurred on part of the Commonwealth's governmental complex containing the Saltonstall and McCormack buildings. Hence, the courtyard/mezzanine was part of the employer's "premises."
We also conclude that Warren's Case is dispositive of the Commonwealth's argument that the employee failed to prove the courtyard was in the control of the employer, the Department of Revenue, rather than the Commonwealth. In the same way that the employer in Warren's Case was Springfield College, not just the athletic department where the employee worked, the employee here was employed by the Commonwealth to work for one of its agencies. See Sherman's Case, 352 Mass. 769, 770 (1967) (Dept. of Public Works employee injured on job gave timely notice of injury to a foreman at the department, which court deemed to be actual notice to the Commonwealth, the self-insurer, indicating no distinction between state and its agencies); accordCollins's Case, 342 Mass. 389, 390-391 (1961) (employee who worked in the forestry department of the City of Quincy considered to be a laborer for the city under G.L.c. 152, § 69); see generally G.L.c. 152, § 69 (extending workers' compensation coverage to employees of governmental units, including the Commonwealth, that elect to accept c. 152) and § 74 (referring to all employees of the Commonwealth, and not to its various departments and agencies).
we hasten to add that we do not imply that an accident on any Commonwealth property anywhere in the state would be considered "premises" for a state worker. Clearly the employee must reasonably be within "the entire area devoted by the employer to the industry with which the employee is associated." 1 A. Larson, supra, 15.41. We simply determine that, like Warren, the entire contiguous area in the control of the Commonwealth that included the employee's specific place of employment was the "premises" of the employer.
Mannering's Case, 290 Mass. at 517-518, has application here as well. The employee there used a side entrance to the employer's building where she worked, 14 Beacon Street, which had its egress onto Park Street through a passageway owned by a private party other than the employer. The employer had a right in the nature of an easement for its employees to use the passage way to pass through that property in order to reach its premises. The employee was killed by falling ice and snow while leaving work and passing through the passageway in her customary fashion. Id. at 518-519. The court ruled the death to be compensable under the Act, stating:
It is plain that the employer had a right to use the passageway on which the deceased was injured and that she used it as a means of reaching and leaving her work constantly with the consent and approval, if not by the direction, of her employer. . . .
There is no hard and fast rule to determine when employment begins and ends. It has been held that, for purposes of compensation, the employee is within the scope of his employment while making his exit from the employer's premises at the end of his period of work, either on land of the employer or by stairs over which he has a right of passage. Stacy's Case, 225 Mass. 174. O'Brien's Case, 228 Mass. 380. Sundine's Case, 218 Mass. 1. Hallet's Case, 232 Mass. 49. White v. E.T. Slattery Co., 236 Mass. 28, 34.
Id. at 519 (emphasis added). As in Mannering's Case, the evidence in the present case was that the employee walked through the courtyard on his breaks as a "common practice." (Dec. 6.) We see no distinction between the present employee's returning to work at the time of his accident, and Mannering's Case, where the unfortunate charwoman was killed while leaving work. If passage through the contiguous property of a third party can be deemed to be within the premises of the employer, for the purposes of determining compensability under the Act, the logical conclusion is that passage over contiguous property under the control of the employer itself must be considered within the meaning of premises.
The result we reach finds further support in the reasoning of the court in Mahan's Case, 350 Mass. 777 (1966), where the employee worked at a newsstand in the Ashmont Station:
The contract between the MTA and the employer gave free admittance to such employees to the "rapid transit premises where they have duties to perform." The reviewing board's findings that the parking area where the claimant left the bus [and was run over by another] was contiguous to the area where her news booth stood and that she was proceeding directly to the booth were permitted and support the conclusion that the injury arose out of her employment.
Id. (emphasis added). See also Stacy's Case, 225 Mass. 174, 176 (1916) (employee at ice house located on pond, which was under its "control," was still within premises of employer when he fell through the ice on his customary and usual way home directly across the pond); Roger's Case, 318 Mass. 308, 309 (1945) andHoran's Case, 346 Mass. 128, 129 (1963) (accidents in parking lots owned or furnished by employers ruled compensable).
The case law as a whole requires the conclusion that this employee's slip and fall on the employer's property contiguous to the building in which he worked, while returning to work in his customary manner from his afternoon break, resulted in a personal injury within the meaning of the Act.
The decision is reversed and the case remanded for further proceedings 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: June 27, 1997