Kish v. Nursing & Home Care, Inc., (SC 15907)

• Decision Date: 06 April 1999
• Docket Number: (SC 15907)
• Citation: 248 Conn. 379,727 A.2d 1253
• Court: Connecticut Supreme Court
• Parties: ROSEMARY KISH v. NURSING AND HOME CARE, INC., ET AL.

248 Conn. 379

727 A.2d 1253

ROSEMARY KISH v. NURSING AND HOME CARE, INC., ET AL.

(SC 15907)

Supreme Court of Connecticut.

Argued December 1, 1998.

Officially released April 6, 1999.

Berdon, Norcott, Palmer, McDonald and Peters, JS. Neil J. Ambrose, with whom, on the brief, was Andrew A. Cohen, for the appellants (defendants).

Reid J. Parrington, with whom, on the brief, was Frank Bonito, for the appellee (plaintiff).

Opinion

BERDON, J.

The principal issue in this appeal is whether an employee may recover workers' compensation for an injury that she suffered while performing her job in a manner that did not comply with the letter of her employer's policy. The workers' compensation commissioner (commissioner), the compensation review board (board), and the Appellate Court all determined that the employee was entitled to workers' compensation. We affirm.

The facts are not in dispute, and were well summarized by the Appellate Court. "The plaintiff, Rosemary Kish, is a registered nurse who was a salaried employee of the [defendant].¹ Her responsibilities [consisted of] visiting patients in their homes and overseeing their care. She made decisions concerning patient care and referred her patients to physicians and other specialists. On a normal workday, the plaintiff used her own car to visit patients and began her day by reporting to her employer's main office at 8:30 a.m. She visited an average of five patients a day, worked out of her car, and took lunch when and where she could find the time. She also set her own work schedule and was reimbursed for her mileage. Her workday ended at approximately 4:30 p.m. and she did not return to the main office at the end of each day.

"One of the plaintiffs patients was an elderly woman for whom she had reserved a commode at a New Canaan supply house because the commode the woman was using appeared unsafe. The plaintiffs supervisor told her not to deliver the commode herself, but to have the patient's caretaker pick it up. While visiting that patient on April 26, 1994, the plaintiff noted that her physical condition had worsened and thought that her makeshift commode was unsafe and needed to be replaced as soon as possible. The plaintiff, therefore, decided to drive to the supply house to pick up the commode. While driving to the supply house, the plaintiff saw a postal truck parked on the opposite side of the street. Recalling that she had a greeting card to mail to a friend, the plaintiff stopped and parked her car. The plaintiff exited her car, crossed the street and handed the card to the mail carrier. While crossing back to her car, the plaintiff was struck by an automobile.

"Although there was an unwritten agency policy that visiting nurses were not supposed to pick up or deliver items for patients, such activities were not prohibited by the agency's policy manual. The plaintiff admitted that she knew of this policy. Furthermore, her supervisor stated that the plaintiff had no specific authorization to mail a personal letter while in the course of her employment. The supervisor agreed, however, that the patient's commode was unsafe and needed to be replaced.

"The commissioner concluded that the plaintiffs decision to pick up the commode was reasonable under the circumstances and that the plaintiff was acting in the course of her employment while doing so. She also found that the plaintiffs brief stop to mail a greeting card was so inconsequential, relative to her job duties, that it did not remove her from the course and scope of her employment. The commissioner concluded that the plaintiff's conduct was not wilful and wanton so as to preclude a workers' compensation claim and, therefore, the plaintiffs injuries, sustained on April 26, 1994, were compensable." Kish v. Nursing & Home Care, Inc., 47 Conn. App. 620, 621-23, 706 A.2d 1372 (1998). The board and the Appellate Court both affirmed this conclusion. The defendants requested permission to appeal from the latter ruling, and we granted certification.²

"It is an axiom of [workers'] compensation law that awards are determined by a two-part test. The [claimant] has the burden of proving that the injury claimed arose out of the employment and occurred in the course of the employment. There must be a conjunction of [these] two requirements ... to permit compensation.... The former requirement relates to the origin and cause of the accident, while the latter requirement relates to the time, place and [circumstance] of the accident." (Citation omitted; emphasis in original; internal quotation marks omitted.) Mazzone v. Connecticut Transit Co., 240 Conn. 788, 792-93, 694 A.2d 1230 (1997).

The certified question³ in the present appeal is limited to the latter Mazzone requirement. It is well settled that we parse this requirement by reference to three factors that we set forth over eighty years ago in Larke v. Hancock Mutual Life Ins. Co., 90 Conn. 303, 308, 97 A. 320 (1916): "In order to establish that [the] injury occurred in the course of employment, the claimant has the burden of proving that the accident giving rise to the injury took place (a) within the period of the employment; (b) at a place [the employee] may reasonably [have been]; and (c) while [the employee was] reasonably fulfilling the duties of the employment or doing something incidental to it." (Emphasis added; internal quotation marks omitted.) Mazzone v. Connecticut Transit Co., supra, 240 Conn. 793.

Because the first prong of the Larke inquiry is neither contested by the defendants nor addressed by the certified question,⁴ we limit our discussion to the remaining two prongs. For present purposes, it therefore suffices to state that—in order to be compensable—the plaintiffs injury must have occurred (1) at a place where she reasonably may have been and (2) while she was reasonably fulfilling the duties of her employment or doing something incidental to it. Id.; accord Spatafore v. Yale University, 239 Conn. 408, 418, 684 A.2d 1155 (1996); McNamara v. Hamden, 176 Conn. 547, 550-51, 398 A.2d 1161 (1979); Larke v. Hancock Mutual Life Ins. Co., supra, 90 Conn. 308. The defendants claim that the commissioner could not reasonably have found that the plaintiff satisfied either prong of this test. We are not persuaded on either count. We insulate the work of the commissioner by affording it a substantial quantum of deference. "[T]he power and duty of determining the facts rests on the commissioner, the trier of facts.... [T]he conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.... Moreover, the fact that the inference may involve an application of a broad statutory term or phrase to a specific set of facts does not result in any greater scope of judicial review." (Citation omitted; internal quotation marks omitted.) Crochiere v. Board of Education, 227 Conn. 333, 347, 630 A.2d 1027 (1993); accord Mazzone v. Connecticut Transit Co., supra, 240 Conn. 792; Spatafore v. Yale University, supra, 239 Conn. 418 ("[t]he determination of whether an injury arose out of and in the course of employment is a question of fact for the commissioner"); Fair v. People's Savings Bank, 207 Conn. 535, 539-40, 542 A.2d 1118 (1988); Herbst v. Hat Corp. of America, 130 Conn. 1, 4, 31 A.2d 329 (1943).

In the present appeal, the plaintiff (1) was at a place where she was reasonably entitled to be because (2) it was necessary to be where she was in order to fulfill the duties of her employment. The facts in support of this conclusion may be stated briefly. The defendant had authorized the plaintiff to drive in the vicinity where she was injured;⁵ in fact, the defendant required her to do so in the performance of her duties, and compensated her both for her mileage and for the time that she spent on the road between patients. At the time of her injury, the plaintiff—a professional nurse—was attempting to obtain a medical necessity for a patient who desperately needed it. For these reasons, the commissioner was correct to award compensation, and both the board and the Appellate Court were correct to affirm that award.

The defendants' argument that the commissioner abused his discretion focuses upon two details, neither of which is material. First, the defendants emphasize that the defendant did not acquiesce to the manner in which the plaintiff sought to benefit her patient. This emphasis does not avail the defendants.⁶ "[W]hen misconduct involves a violation ... relating to the method of accomplishing [the] ultimate work [to be done by the claimant], the act remains within the course of employment." (Emphasis in original.) 2 A. Larson & L. Larson, Workers' Compensation Law (1998) § 31.00, p. 6-10. The plaintiffs "ultimate work" consisted of bringing medical care to the homes of patients; this is precisely what she was doing when she was injured. On the day of the accident, the plaintiff observed that her elderly patient's condition had deteriorated: she could neither get out of bed nor walk without assistance. The commissioner explained that the plaintiff determined, "based on her twenty-two years of experience as a nurse, and based on the condition of her patient ... that it was imperative that a proper[ly] functioning commode be obtained for [her patient] as expeditiously as possible." The plaintiffs supervisor concurred with the plaintiffs diagnosis, which was the sole motivation for the trip to New Canaan.

In short, the plaintiff was injured in the midst of her effort to procure a medical necessity⁷ for her patient's home. It could not be plainer that the trip taken to accomplish this goal constituted the very work for which the defendant employed the plaintiff, even if the method did not comport with the employer's wishes. The contrary result would "reduc[e] the distinction [between `ultimate...