This appeal arises under the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On December 16, 1996, a contested case hearing (CCH) was held. With respect to the issues before him, the hearing officer determined that respondent (claimant) sustained a compensable injury while pursuing an activity of personal comfort incidental to her employment and that claimant sustained a certain period of disability.
Appellant (carrier) appeals, citing a number of court cases and Appeals Panel decisions, contending that the personal comfort doctrine does not apply to off-premises activities or “must be limited in scope when the injury is off premises.” Carrier requests that we reverse the hearing officer’s decision and render a decision in its favor. The file does not contain a response from the claimant.
DECISION
Under the limited circumstances of this case, we affirm the hearing officer’s decision and order.
As carrier noted at the CCH, the legally necessary facts are not in dispute. Claimant was employed as a seamstress (or alterations tailor) at a clothing store, the employer. Employer, with at least six other businesses, leased space in a strip shopping center. Included in the shopping center was a parking lot which was owned, managed and controlled by the owner of the real estate (the landlord). It is undisputed that claimant was entitled to two 10-minute breaks (one at 10:00 a.m. and the other at 4:00 p.m.) a day. On ______, at claimant’s 10:00 a.m. break, claimant went out of the front door to stretch her legs and walk in the parking lot immediately in front of the stores (including employer’s store). The pavement was wet, claimant slipped and fell, and sustained a serious injury to her left knee. Claimant testified that she customarily would stretch and walk, sometimes with one or two coworkers. The medical evidence established that claimant sustained a comminuted fracture of the left patella, which was treated by surgery in the nature of a partial patellectomy.
At the CCH, there was some testimony that claimant may have said that she was going to the bank across the street. This is denied by the claimant and the hearing officer found, as fact, that claimant was merely walking “adjacent to and in front of the [e]mployer’s store to stretch her legs.” Carrier also refers to the employer’s “cafeteria” on premises; however, it was claimant’s uncontroverted testimony that the employer had only a small break room with space only for a table and four chairs. Claimant further testified that one of her supervisors, Mr. A, told her (and coworkers) that they “have to go outside” for their 10-minute break “to walk or move around.”
The hearing officer determined that claimant “was in an activity of personal comfort incidental to her employment when she sustained her injury . . . and she would not have been at the location of her injury but for her employment with the Employer.” The hearing officer, in his discussion, notes that it was carrier’s contention that the personal comfort doctrine “is only applicable when an injured worker is on the Employer’s premises. . . .” The hearing officer was of the opinion that “the personal comfort doctrine has been applied to acts that are on or immediately adjacent to Employer’s premises,” citing Texas Workers’ Compensation Commission Appeal No. 950057, decided February 24, 1995. Carrier seeks to distinguish Appeal No. 950057 by citing language used by the author judge. We note, however, that Appeal No. 950057 is not a personal comfort doctrine case[1] but rather a deviation from the course and scope of employment. In that decision Judge Sanders clearly stated “[a]lthough not a part . . . of [the hearing officer’s] decision . . . we feel it appropriate to comment on the personal comfort and convenience doctrine and express our disagreement with its application under the facts of this case.” Judge Sanders then remarked that the personal comfort doctrine “is a narrowly drawn exception”; cited a driving to lunch case and Larson’s treatise on “Workmen’s Compensation Law.” Judge Sanders also talked about leaving the premises for lunch; cited Texas Workers’ Compensation Commission Appeal No. 94079, decided February 28, 1994, and Texas Workers’ Compensation Commission Appeal No. 94559, decided June 10, 1994; and specifically concluded in Appeal No. 950057, supra, that the personal comfort doctrine did not apply and “would be an unwarranted extension of the doctrine.” Language regarding “special or exceptional circumstances” were in reference to Larson’s discussion “needed to bring an off premises lunch period injury within course and scope.” The facts and discussion in Appeal No. 950057 are clearly distinguishable from the case at hand.
We believe Appeal No. 94079, supra, although distinguishable, to be more applicable. In that case, a city employee working in one building left the building and crossed the street to another building also owned by the city (the employer) on a 15-minute break. The second “off-premises” building had a restaurant and automatic teller machine. While at the second building on a break, the employee fell and was injured. The hearing officer determined the injury compensable under the personal comfort doctrine. After discussing several state appellate court cases, the Appeals Panel found that the “application of the personal comfort doctrine was not error,” citing Texas Employers Insurance Association v. Villasana, 558 S.W.2d 917 (Tex. Civ. App.-Amarillo 1977, no writ) in which a worker, who fell from a chair while on break, was awarded benefits based on the personal comfort doctrine. Appeal No. 94079, supra, also cited the Mapp v. Maryland Casualty Company cases (730 S.W.2d 658 (Tex. 1987) and 725 S.W.2d 516 Tex. App.-Beaumont 1987), rev’d per curiam 730 S.W.2d 658 (Tex. 1987)), which dealt with a worker who sustained an injury going less than one block away to a cafeteria for lunch. In those cases, the employee was working out of town away from her regular work site and there was no eating facility provided at the work site. The Supreme Court reversed the appellate court decision which had affirmed a summary judgment against the claimant and stated a fact question had been raised by the evidence. After discussing Mapp, the Appeals Panel in Appeal No. 94079, supra (the city employee case), affirmed the hearing officer, stating:
We similarly believe that a fact question had been raised in the case on appeal. See Texas Workers’ Compensation Commission Appeal No. 92009, decided January 21, 1992. With the limited time away from her work, the fact that she was being paid and was not violating any restriction on her break, the proximity of her fall to her work, the fact that the fall occurred in a building owned by the same employer (which may indicate that maintenance practices were comparable), and with appellant raising no question that the claimant was not at her work site or immediately adjacent to it, we must judge the determination of the hearing officer on the basis of whether it was against the great weight and preponderance of the evidence. See In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
That being said, we distinguish the instant case from lunch break cases off the premises.
Carrier also cites Texas Workers’ Compensation Commission Appeal No. 960846, decided June 14, 1996, where the employee, while on a break in the parking lot, fell (and eventually died) while helping a coworker jump-start his car. We distinguish that case from the instant case on the basis that Appeal No. 960846 was decided on the fact that the employee was in the parking lot on a personal mission unassociated with relaxing or any relationship to personal comfort. Appeal No. 960846 cited, and followed the reasoning of, Roberts v. Texas Employers Insurance Association, 461 S.W.2d 429 (Tex. Civ. App.-Waco 1971, writ ref’d), a case where an employee was injured on the employer’s premises during working hours while taking a cardboard box out to her car. (Carrier also cites this case.) The court in Roberts held that the employee was “on a purely personal mission, and the injury was not compensable.” Both Roberts and Appeal No. 960846 were decided on the basis that the injured employee in those cases was on a personal mission.
We also distinguish, and find not applicable, off-premises lunch cases and deviation from the course and scope of employment cases cited by carrier. Neither party raised, nor litigated, the access doctrine at the CCH and, therefore, we omit comment on that line of cases. However, we do somewhat agree with carrier that the personal comfort doctrine is a fairly narrowly drawn exception, is perhaps even more limited when it occurs off premises, and should require some “special or exceptional circumstances” for it to apply. In the instant case, some of those “special or exceptional circumstances” the hearing officer could have considered were the proximity of the parking lot to the employer’s (leased) premises, whereby an argument could be made that the lease of the store also gave the employer a right to use the parking lot and, consequently, the parking lot was a part of the premises, the fact that claimant was a seamstress working at a sewing machine desiring to stretch her legs, claimant’s testimony that the employer’s “cafeteria” (break room) had only room for a table and four chairs, claimant’s testimony that Mr. A told her that she would have to go outside to exercise or stretch her legs and the apparent lack of a space inside the store where employees could take a stretch break. The hearing officer apparently considered these factors when he stated in his discussion:
The Claimant was on her break and one of the few places available to her to walk was the parking lot in front of the store. She was taking a recreational stretching of her legs in an area immediately adjacent to the Employer’s premises. She would not have been in that parking lot “but for” her employment with the Employer. Her injury arose out of, was incident to, and was in the course and scope of her employment.
We do not find the hearing officer’s conclusion to be incorrect as a matter of law and find it supported by the evidence. See King, supra. Accordingly, the hearing officer’s decision and order are affirmed.
Thomas A. Knapp – Appeals Judge
CONCUR:
Philip F. O’Neill – Appeals Judge
Judy L. Stephens – Appeals Judge
- In that case, the claimant was an employee of an automobile dealership, who, after taking a customer home, deviated from his employment by stopping at a convenience store for “lunch” and coffee and was involved in a motor vehicle accident going to the convenience store. ↑