77 Hawai'i 100, Tate v. GTE Hawaiian Telephone Co.

• Court: Hawaii Supreme Court
• Writing for the Court: Before MOON; LEVINSON
• Citation: 77 Hawai'i 100, Tate v. GTE Hawaiian Telephone Co., 881 P.2d 1246, 77 Hawaii 100 (Haw. 1994)
• Decision Date: 10 October 1994
• Docket Number: No. 17529,17529
• Parties: 77 Hawai'i 100 Elsie M. TATE, Claimant-Appellant, v. GTE HAWAIIAN TELEPHONE CO. and Argonaut Insurance Co., Employer/Insurance Carrier-Appellees.

Page 1246

881 P.2d 1246

77 Hawai'i 100

Elsie M. TATE, Claimant-Appellant, v. GTE HAWAIIAN TELEPHONE CO. and Argonaut Insurance Co. Employer/Insurance Carrier-Appellees.

No. 17529.

Supreme Court of Hawai'i.

Oct. 10, 1994.

Herbert R. Takahashi, Danny J. Vasconcellos and Rebecca L. Covert of Takahashi, Masui and Vasconcellos, on the briefs, Honolulu, for claimant-appellant Elsie M. Tate.

Clyde Umebayashi and Muriel M. Taira of Kessner, Duca, Umebayashi, Bain & Matsunaga, on the briefs, Honolulu, for employer/ins. carrier-appellees GTE Hawaiian Tele. Co. and Argonaut Ins. Co.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

LEVINSON, Justice.

This case presents us with the opportunity to clarify the nature and scope of coverage under the Hawai'i workers' compensation law, Hawai'i Revised Statutes (HRS) ch. 386 (1985 & Supp.1992). The claimant-appellant Elsie Tate appeals from the decision of the Labor and Industrial Relations Appeals Board (Board) denying her claim for workers' compensation. ¹ On appeal, Tate contends that the Board erred in: (1) refusing to consider whether the activities giving rise to Tate's injury were a normal incident of her employment; (2) applying a restrictive "work connection" test that ignored evidence of custom and practice, acquiescence by the employer, and benefit to the employer; and (3) failing properly to consider or apply the statutory presumption of compensability to Tate's injury.

We disagree with all three of Tate's points of error. Accordingly, because we hold that Tate's injury falls outside the scope of workers' compensation coverage under applicable Hawai'i law, we affirm the Board's decision denying Tate's claim.

I. BACKGROUND

For over twenty years, Tate had been continuously employed by GTE Hawaiian Telephone Co. (Haw Tel) as a switchboard operator. Sometime in 1989, Tate notified her supervisor, Jim Danley, that she planned to retire upon reaching her sixty-fifth birthday, which fell on July 13, 1990. By agreement, Tate and Danley arranged for Tate to take a period of pre-retirement vacation, which would allow her to expend accrued vacation time. The period was to commence on July 16, 1990, and end on August 28, 1990. On August 29, 1990, following her last day of vacation, Tate was to retire.

Tate's last day of actual work was Friday, July 13, 1990. On that day, Tate's co-workers gave a retirement party for her, organized exclusively by them and held in the employees' lounge situated on Haw Tel's premises. Haw Tel typically allowed such retirement parties to be given on its premises during work hours, although the parties were uniformly financed by co-workers without any direct support from Haw Tel. ² At her party, Tate received gifts from her co-workers, her union, and Haw Tel.

On Monday, July 16, 1990, Tate began her pre-retirement vacation period. On August 3, 1990, approximately half-way through her six week vacation, Tate visited Haw Tel's premises in order to take a cake to her co-workers as a gesture of appreciation for the retirement party. Haw Tel had not requested that Tate return to the premises that day for any reason.

While such gestures of appreciation were customary on the part of Haw Tel's retired employees, the decision whether to conform to the custom was solely within the discretion of the retiring employee. Gestures of appreciation were neither required nor expected by Haw Tel, and Haw Tel had no policy either encouraging or prohibiting such gestures. When asked whether anyone requested that she bring a cake to her co-workers, Tate testified, "No. I wanted to do it on my own because I appreciate them."

After obtaining permission from the manager of directory assistance, Coonrod, to share the cake with her former co-workers, Tate delivered the cake. Afterward, Tate spoke with Dana Morey, a co-worker and union shop steward. Morey, who holds no management capacity at Haw Tel, suggested that, while in the area, Tate should see Kathryn Rowe, the benefits administrator, regarding her pension.

Although she had no previously arranged appointment to see Rowe, Tate proceeded to Rowe's office, which was located one block from the Haw Tel building. Pursuant to standard operating procedure, once an employee notified Haw Tel of his or her intent to retire, the office of the benefits administrator would prepare retirement benefit calculations, which would be mailed to the retiree; only then would an appointment for retirement counseling customarily be scheduled. Because Tate had not abided by this procedure, the calculations for her benefits had not been completed. Thus, Rowe advised Tate to schedule an appointment after receiving her retirement papers.

Following her meeting with Rowe, Tate returned to the Haw Tel building to retrieve a piece of cake she had left in the refrigerator of the employees' lounge, intending to take it home with her. Tate rode the elevator to the fifth floor, where the lounge and refrigerator were located. While exiting the elevator, she slipped, fell, and sustained a fracture to her left knee.

On February 11, 1991, Tate filed a timely claim for workers' compensation benefits for her fractured knee. On December 4, 1991, the Director of the Disability Compensation Division of the Department of Labor and Industrial Relations (Director) denied Tate's claim, finding that the injury was not work-related. On December 5, 1991, Tate appealed the Director's decision to the Board.

On June 2, 1992, the Board conducted a hearing on the appeal. On October 13, 1993, the Board rendered a decision and order affirming the Director's decision. The Board concluded that Tate's injury did not arise out of and in the course of employment, finding that although Tate's injury had occurred on Haw Tel's premises, that fact alone did not establish compensability. Relying on its finding that Tate's reasons for being present on Haw Tel's premises at the time of the accident were strictly personal, the Board denied her claim.

Tate filed a timely notice of appeal on October 20, 1993.

II. STANDARD OF REVIEW

Being governed by the Hawai'i Administrative Procedure Act, HRS ch. 91 (1985 & Supp.1992), appeals taken from findings set forth in decisions of the Board are reviewed under the "clearly erroneous" standard. Chung v. Animal Clinic, Inc., 63 Haw. 642, 651, 636 P.2d 721, 727 (1981). Thus, this court considers whether such a finding is "[c]learly erroneous in view of the reliable, probative, and substantial evidence on the whole record[.]" ³ Id. The clearly erroneous standard requires this court to sustain the Board's findings unless the court is "left with a firm and definite conviction that a mistake has been made." Id. at 652, 636 P.2d at 727 (internal quotation marks and citation omitted); see also State v. Furutani, 76 Hawai'i 172, 179, 873 P.2d 51, 58 (Sup.1994).

A conclusion of law (COL) "is not binding on an appellate court and is freely reviewable for its correctness." Furutani, 76 Hawai'i at 180, 873 P.2d at 59 (internal quotation marks and citation omitted). Thus, this court reviews COL de novo, under the right/wrong standard. Id. (citation omitted).

III. DISCUSSION

A. The Board Did Not Err In Concluding That Tate's Injury Did Not Arise Out Of And In The Course Of Employment.

For an injury to be compensable under a workers' compensation statute, there must be a requisite nexus between the employment and the injury. The nexus requirement is articulated in Hawai'i, as in the majority of jurisdictions, on the basis that, to be compensable, an injury must arise out of and in the course of employment. ⁴ This court has employed two different approaches in determining whether injuries meet this criterion.

The traditional view, under which early workers' compensation cases were decided, required that a claimant show that her injury arose both "out of" and "in the course of" employment. See Chung, 63 Haw. at 647-48, 636 P.2d at 725 (citations omitted) (discussing early approach). The traditional test thus consisted of two steps, in which the elements of "arising out of" and "in the course of" were separately established. Id. at 648, 636 P.2d at 725 (citation omitted).

More recently, the court has adopted a "unitary" test that considers whether there is a sufficient work connection to bring the accident within the scope of the statute. First articulated in Royal State National Insurance Co. v. Labor and Industrial Relations Appeal Board, 53 Haw. 32, 487 P.2d 278 (1971), the work connection approach simply requires the finding of a causal connection between the injury and any incidents or conditions of employment. Chung, 63 Haw. at 648, 636 P.2d at 725 (citations omitted). The unitary work connection test was formally adopted as the correct means of interpreting and applying HRS § 386-3 in Chung. Id. at 649, 636 P.2d at 726. ⁵

1. Tate's injury was not causally connected to an incident or condition of employment.

"An injury is said to arise in the course of the employment when it takes place within the period of employment, at a place where the employee reasonably may be, and while he [or she] is fulfilling his [or her] duties or engaged in doing something incidental thereto." 1 A. Larson, The Law of Workmen's Compensation § 14.00 (1993) [hereinafter Larson].

Activities, such as seeking personal comfort, "going and coming," and engaging in recreation have no inherent status as part of the employment. 1A Larson § 21.81. As distinguished from actual performance of the direct duties of the job, these activities must be established as incidents of the work itself. Id. In explaining the method by which an activity shall be characterized as "incidental" to work, Larson writes: "[T]he word 'incident' contains an element of the usual and reasonable, both as to the needs to be satisfied and as to the means used to satisfy them." Id.

Tate sustained her injury when she returned to the Haw Tel building to retrieve a piece of...