The Compensation Review Board (CRB) in DeForest v. Yale-New Haven Hospital, 6075 CRB-3-16-2 (April 6, 2017) issued a ruling that has continued the erosion of the off-premises lunch defense. In the late 1990s, injuries that occurred during an off-premises lunch break were typically not compensable based on the ground that such activity did not occur in the course and scope of employment. See Kaplan v. State of Connecticut/Department of Health Services, 2012 CRB-1-94-4 (September 11, 1995). The continued erosion of the off-premises lunch defense has limited its application to cases where the factual basis for the claim clearly shows there is no mutual benefit between the employee and the employer or the employer has not acquiesced to the activity engaged in by the employee.
In DeForest, after the employee had completed her lunch hour, she slipped and fell on ice when crossing a public street walking toward her car that was parked in a nearby garage so that she could get money to buy coffee later in the day. The employee paid a biweekly fee to the employer, who issued an electronic access card to access the garage. The record was absent as to whether the employer owned the garage. The employer further testified that that she was not working through her lunch hour, had not informed her employer that she would be going to her car over lunch break, and was not carrying out any duties of employment at the time of the accident.
While there was no evidence of the ownership of the garage, the CRB agreed with the trial commissioner’s determination that the garage was an extension of the employer’s premises and was provided for the mutual convenience of the employer and employee. The CRB further reasoned that since the employer “obtained parking for the [employee] at the location where she parked” it was “self-evident that the [employer] knew that the claimant would traverse public roads and sidewalks between where she parked and where she work[ed],” and therefore, the employer had “acquiesced to her presence” where the accident occurred.
Similarly, the CRB rejected the employer’s argument that the claimant, by walking to her car to obtain money to buy a coffee, was not engaging in an activity incidental to her employment on the ground—going to a parked car would be something an employee would regularly engage in and, as such, the employer would have consented to such activity. Therefore, such activity would be considered incidental to the employment despite the fact that the record showed she was not carrying out any specific duties of her employment. The CRB did highlight two CRB decisions upholding a Commissioner’s determination that activities were not incidental to employment in Spatafore v. Yale University, 239 Conn. 408 (1996) (going to a union meeting) and Cunningham v. Saint Raphael Healthcare System, 5809 CRB-3-12-12 (December 31, 2013), appeal dismissed, AC36453 (September 16, 2014) (claimant’s narrative of activity found not credible by the trial commissioner).
The CRB in DeForest emphasized that litigating an off-premises lunch defense is a heavily fact-driven exercise and in our experience such a defense is viable only in situations where the factual basis for the claim clearly shows there is no mutual benefit between the employee the employer, or the employer has not acquiesced to such activity, or the employee is not credible.