MILLER_V_IBM.92-636; 161 Vt. 213; 637 A.2d 1072

[Filed 10-Dec-1993]


                                 No. 92-636


 David Miller                                 Supreme Court

                                              On Appeal from
      v.                                      Commissioner of Labor &
                                              Industry

 International Business Machines Corp.
 & Liberty Mutual Ins. Co.                    October Term, 1993


 Dana J. Cole-Levesque, Commissioner

 Beth DeBernardi and Roger E. Kohn of Kohn & Rath, Hinesburg, for
   plaintiff-appellee

 Keith J. Kasper of McCormick, Fitzpatrick & Mertz, P.C., Burlington, for
   defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      ALLEN, C.J.   The question certified in this appeal from a decision of
 the Commissioner of Labor and Industry is whether a workers' compensation
 claimant's injury arose out of and in the course of employment when it
 occurred as a result of an automobile accident on a private road, owned by
 the employer and providing access to its facilities, while the claimant was
 leaving the employer's premises during a lunch break.  The commissioner
 held that it did, and we affirm.
      The parties stipulated to certain facts in addition to those set forth
 in the certified question.  Plaintiff David Miller, the claimant, was
 injured on a road owned by defendant International Business Machines, Inc.
        
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 (IBM), the employer, which provides access to the facilities where plaintiff
 worked.  IBM reserved the right to deny public access to the road, but
 opened the road to the public during working hours.  Plaintiff was not
 running an errand for his employer when the accident occurred.
      The prerequisites for a personal injury compensation claim are laid out
 in 21 V.S.A. { 618, which provides compensation to a worker injured by
 accident "arising out of and in the course of . . . employment by an
 employer subject to [workers' compensation laws]."  Thus, to have a
 compensable injury a claimant must prove both that the accident (1) arose
 out of the employment, and (2) occurred in the course of the employment.
      Until recently, the "arising out of" requirement demanded proof of a
 causal connection between the employment and the accident -- effectively, a
 showing of tort-type proximate causation.  See Rothfarb v. Camp Awanee,
 Inc., 116 Vt. 172, 176, 71 A.2d 569, 572 (1950).  But in Shaw v. Dutton
 Berry Farm, 4 Vt. L.W. 216, 217 (1993), we reexamined the proximate
 causation requirement in light of the broad, remedial purposes of workers'
 compensation law, and rejected Rothfarb's narrow, unduly restrictive
 construction of "arising out of employment" in favor of the more liberal
 positional-risk doctrine.  Under positional-risk analysis, an employee's
 injury arises out of employment "'if it would not have occurred but for the
 fact that the conditions and obligations of the employment placed claimant
 in the position where [claimant] was injured.'"  Id. (quoting 1 A. Larson,
 The Law of Workmen's Compensation { 6.50 (1990)).
      In Shaw, we held that the plaintiff, a migrant farm laborer stabbed by
 a fellow worker in an after-hours dispute, sustained injury "arising out
 of" his employment.  Id.  The altercation occurred in a bunkhouse owned by

 <Page 3>

 the plaintiff's employer and provided to workers in a mutually beneficial
 arrangement as part of the employment.  The commissioner found that the
 injury occurred in the course of employment, because the plaintiff was on
 duty at a place where he could reasonably be expected to be while fulfilling
 the duties of employment.  Using the "but for" test of the positional risk
 doctrine, we held that the plaintiff's injury arose out of his employment.
 Id.  We noted that "[o]rdinarily, if an injury occurs during the 'course of
 employment,' it also 'arises out of it,' unless the circumstances are so
 attenuated from the condition of employment that the cause of injury cannot
 reasonably be related to the employment."  Id.  In this case, then, we must
 first determine whether plaintiff was injured in the course of his
 employment, and then consider whether the injury arose out of the conditions
 of employment.
      We have never specifically addressed the question of whether aspects of
 commuting may be considered to be in the course of employment, but prior
 case law does provide guidance.  In Marsigli Estate v. Granite City Auto
 Sales, Inc., we held that as a matter of law claimant was injured in the
 course of his employment when he slipped and fell on an icy surface on the
 employer's premises.  124 Vt. 95, 98-99, 197 A.2d 799, 802 (1964).  Marsigli
 attached "substantial significance" to the fact that the claimant was on the
 premises when injured.  The fact that the claimant might have been leaving
 the grounds of the employer to go for coffee, an act not directly related to
 his job, did not detract from this conclusion.  Id. at 98, 197 A.2d at 802.
      Marsigli formulated a general rule that injury arises in the course of
 employment "when it occurs within the period of time when the employee was
 on duty at a place where the employee may reasonably be expected to be while

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 fulfilling the duties of [the] employment contract."  Id.  But the
 definition of "duty" cannot be so strictly construed as to permit
 compensation only if an employee was actually engaged in a job-related
 activity.  An employer's duty to indemnify for harm "attend[s] the
 [employee] for incidental trips across the premises, to and from [the]
 working place, for purposes not strictly connected with the [employer's]
 business."  Id. (emphasis added).  Even before the enactment of workers'
 compensation statutes, "under principles of common law, the law afforded the
 worker some latitude in releasing the servant from the confines of his work
 bench."  Id.  As noted in Shaw, a broad view of what constitutes
 "employment" best furthers the remedial purposes of workers' compensation
 legislation.  4 Vt. L.W. at 216-17.
      With this in mind, we adopt the following standard:  "As to employees
 having fixed hours and place of work, injuries occurring on the premises
 while they are going to and from work before or after working hours or at
 lunchtime are compensable . . . ."  1 Larson, supra, { 15.00.  This rule
 promotes the broad policy of remediation, because it covers workers for
 part of the necessary job-related activity of commuting to and from work.
 It clearly delineates the employer's liability for injuries to commuting
 employees as coextensive with the employer's premises.  By limiting
 liability to areas within the employer's control, this test incorporates a
 fair compromise in allocating the cost of worker injuries.  Finally, we note
 that this "premises rule" is the law in a majority of jurisdictions.  See
 id. { 15.11 (listing jurisdictions).
      Therefore, despite the fact that plaintiff was on an uncompensated
 lunch break when the accident occurred, he was on the premises at the time

 <Page 5>

 of the accident.  Under the premises rule, he sustained injury "in the
 course of employment."  Moreover, the circumstances of this case did not
 make the accident so attenuated from the condition of employment that the
 cause of injury was not reasonably related to the employment.  Thus,
 plaintiff satisfies the "arising out of" requirement as well.  See Shaw, 4
 Vt. L.W. at 217.  Having satisfied both criteria of 21 V.S.A. { 618,
 plaintiff's injuries are compensable.
      The certified question is answered in the affirmative.

                                    FOR THE COURT:



                                    _____________________________
                                    Chief Justice