Summary
showering in employer's facilities
Summary of this case from Kennecott Corp. v. Industrial Com'n of UtahOpinion
No. 19,145.
Decided October 19, 1959. Rehearing denied November 9, 1959.
From denial of his claim for workmen's compensation, the claimant brings error.
Reversed.
1. WORKMEN'S COMPENSATION — Accident — Incidental to Employment — Shower Bath. Injuries incurred by the claimant while taking a shower bath following relief from his shift at open hearth furnace, where shower facilities are furnished by the employer and the nature of the employment makes bathing reasonably necessary, were incidental to his employment.
2. Nature of Employment — Bathing Facilities — Use — Evidence. That the employer has furnished shower bath facilities and substantially all of the employees find it necessary to use them, constitutes persuasive evidence that such facilities are something more than a contribution to the convenience of the employees, serves the interest of the employer and is a reasonably necessary preparation for an employee leaving the company premises.
Error to the District Court of the City and County of Denver, Hon. Henry E. Santo, Judge.
Messrs. GRAHAM SCHEUNEMANN, for plaintiff in error.
Mr. DUKE W. DUNBAR, Attorney General, Mr. FRANK E. HICKEY, Deputy, Mr. PETER L. DYE, Assistant, for defendant in error Industrial Commission of Colorado.
Messrs. TIPPIT, HASKELL WELBORN, Mr. ELMER P. COGBURN, for defendant in error Colorado Fuel and Iron Corporation.
PLAINTIFF in error filed a claim for workmen's compensation before the Industrial Commission. Hearing was had before a Commission referee who denied the claim. The findings of the referee were adopted by the Commission, and subsequently the district court entered judgment affirming the Commission. Claimant seeks review and reversal contending that the court erred in concluding that his injury did not arise "out of and in the course of the employment."
The facts are undisputed and show that claimant, who on July 24, 1957, was 53 years of age, was employed by The Colorado Fuel and Iron Corporation as a first helper on the open hearth furnace. On the day of the injury he was working the 3:00 P.M. to eleven shift, but by long established custom he arrived at the plant 50 minutes early and then punched in on the time clock. He then relieved the helper on the preceding shift about 30 minutes early. In turn, the next shift relieved him 30 minutes early. Claimant then proceeded to the showers on the premises, and while he was stepping into the shower slipped and fell and on the base of his spine suffering fractures and injuries.
The open hearth employees ordinarily go to the change room after they have been relieved, where they change out of their working clothes and either go to the shower room where they take a shower before changing into their street clothes, or to a wash room where there are basins for washing their hands and facts. Claimant testified that everybody in the open hearth takes a shower except a very few who simply wash their faces and hands. Claimant testified concerning the necessity for taking a shower as follows:
"Q. Is there anything about your work as a first helper that makes it necessary to take a shower? A. Well. I certainly think there is and the majority of them do, it is dense heat you work in, that open hearth furnace and if I recall that night, I finished tapping the heat just before I left and was all wet, that dolamite dust is very dangerous to your skin if it is left on and then, I consider a man's health, if a fellow went out into the weather wet and dusty he had a very good chance of catching pneumonia, I think it is very important that at fellow cleans up before he goes home, there is no sense in going down as dirty as you are without taking a shower. Q. Is the shower room on the company premises? A. Yes, sir. Q. How large a shower room is it? A. It is one of the best in the country, the last new one they built, I should say it is fourteen showers in all and there is twelve above for the laborers."
The single issue for determination is whether an employee who is injured while taking a shower bath following relief from his work but before the completion of his shift — before he has "punched out" — is entitled to compensation where it appears that he has worked in dense heat and dolamite dust and where it appears that the shower is provided by the employer on its premises but that taking a shower is optional. If it can be said that the employee was in law "performing services arising out of and in the course of his employment" the injury is compensable — otherwise it is not.
The Industrial Commission followed the Court's decision in Industrial Commission v. Rocky Mountain Fuel Co., 107 Colo. 226, 110 P.2d 654, which decision resulted in denial of compensation to a coal miner who was injured under similar circumstances. It there appeared that although the employer furnished the shower bath facilities, the employee paid a fee for their use; that the employee's shift had ended, and that he was free to go home — that he was under no compulsion to use either the washing or shower facilities.
Other Colorado cases have construed the clause "performing services arising out of and in the course of his employment," C.R.S. 1953, 81-13-2, less restrictively than the Rocky Mountain Fuel Co. case. Thus State Compensation Fund v. Industrial Commission, 98 Colo. 563, 58 P.2d 759, recognized the claim growing out of death of an employee while sleeping in a company bunk house. See also Employers Mutual v. Commission, 76 Colo. 84, 230 Pac. 394, which recognized the right where the employee was injured while attending a call of nature. An injury while eating lunch on the premises of the employer was held compensable in Industrial Commission v. Golden Cycle, 126 Colo. 68, 246 P.2d 902. It was there said:
"* * * It arises out of the employment if it is connected with the nature, conditions, operations or incidents of the employment. * * *"
See also Industrial Commission, et al. v. Hayden Coal Co., 113 Colo. 62, 155 P.2d 158, where the claimant was allowed to recover even though he was injured prior to going on duty. He stumbled and fell while leaving the washroom after he had changed his clothes and was at the time of the injury walking toward his station.
In University of Denver, et al. v. Nemeth, et al., 127 Colo. 385, 257 P.2d 423, the claimant, although injured while playing football, was held entitled to compensation. The Court recognized that the claimant was required to play football in order to hold his job. The Court commented on the question of proximity of the activity to the work which claimant had been employed to perform, and approved a test of "incident to the employment."
1 Larson's Workmen's Compensation Law, p. 313, Sec. 21.60, Preparatory Acts, declares:
"The course of employment, for employees having a fixed time and place of work, embraces a reasonable interval before and after official working hours while the employee is on the premises engaged in preparatory or incidental acts, such as washing or changing his clothes. The rule is not limited to activities that are absolutely necessary; it is sufficient if they can be said to be reasonably incidental to the work."
Larson also points out that injuries which occur while washing one's hands before going home has ordinarily been held to be incidental to the employment. He then discusses the cases which deal with bathing and criticizes the Rocky Mountain Fuel Co. case as follows: (Sec. 21.63)
"There has been a little reluctance, however, to extend this principle to shower baths. Several awards have been made, but in two or three cases courts have stopped short of shower-bath injuries, giving various reasons. In a Colorado case, for example, a miner, who was taking a shower in the bath house maintained by the employer before changing his clothes, slipped on a piece of soap. The court was quite prepared to concede that he would have been in the course of his employment while changing his clothes, but could not see that taking a shower was a reasonably necessary preparation for leaving for home. Of course, there are many variables in such a case; perhaps it was an extremely clean mine, or perhaps the court's ideas of personal hygiene were not very exacting; but it seems reasonable to suggest that if the need for showers was great enough to induce the employer to install them in the first place, the use of them by miners before changing their clothes might be thought reasonably incidental to the work. * * *"
It is urged by the claimant that the present case is distinguishable from the Rocky Mountain Fuel case in that the evidence here establishes the necessity for bathing after completion of a shift as a helper on an open hearth furnace in a steel mill, whereas evidence was lacking on this point in the Rocky Mountain Fuel case. Although there are superficial differences between the present case and the Rocky Mountain Fuel case, it appears to us that the two fact situations are substantially similar and that a holding allowing compensation here would not be fully reconcilable with the Rocky Mountain Fuel case. That decision is out of harmony with the present trend of cases construing the phrase "services performed out of and in the course of the employment," and insofar as that decision is in conflict with the present one it should be and it is hereby overruled. The nature of the employment in the case here presented makes bathing reasonably incidental to the employment itself. The fact that the employer has provided these showers and the fact that substantially all of the employees find it necessary to use them, constitutes persuasive evidence leading to the conclusion that the shower facilities provided are something more than a contribution to the convenience of the employees. The health of the employee is of interest to the employer and the inference that the employer was not providing for the comfort and pleasure of the employee when it installed these extensive shower facilities is a fair one. The employer's interest was actually here served. The evidence also established that the shower was part of a reasonably necessary preparation for the employee leaving the company premises for his home.
We conclude, therefore, that the accident here involved is within the class of cases which arise out of and in the course of the employment.
The judgment of the trial court is reversed and the cause is remanded with instructions to remand the case to the Commission with directions to enter an appropriate award consistent with the views expressed herein.
MR. JUSTICE HALL dissenting and MR. CHIEF JUSTICE KNAUSS not participating.