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Barbarise v. Overlook Hospital Association

Decided: June 25, 1965.

JO ANN A. BARBARISE, PETITIONER-RESPONDENT,
v.
OVERLOOK HOSPITAL ASSOCIATION, RESPONDENT-APPELLANT



On appeal from Division of Workmen's Compensation.

Weidenburner, J.c.c.

Weidenburner

This workmen's compensation appeal presents the single question of whether a practical nurse, residing by personal choice in a residence provided by the hospital-employer but not required to do so, is entitled to compensation for injuries sustained in a fall on a stairway in the residence at a time when she was not on duty or on call. Petitioner received an award in the Division of Workmen's Compensation and the hospital-employer appeals.

Petitioner is a practical nurse, who received her technical training in the hospital of respondent. Following her graduation she was employed as a practical nurse for a brief period by respondent. She thereafter obtained other employment but returned to the employ of respondent in May 1963, approximately two weeks before the fall here involved. When she returned she requested and received permission to occupy residence quarters maintained by respondent for the use of some of its employees.

The residence quarters were located in a building on the hospital grounds used in the instruction of student nurses and as living quarters for the students and some other employees. Residents were provided with maid service by the hospital, and space and equipment were provided for light cooking and laundry and for certain recreational and social

activities. Petitioner was charged the nominal sum of $15 per month for her living quarters, maid service and the privilege of using all of the facilities and equipment in the residence.

On May 30, 1963 petitioner worked from 7 A.M. to 3:30 P.M. and then returned to the residence quarters. After changing her clothes, she visited and chatted for a short time with other girls who were sunbathing on the roof. At approximately 4 P.M. petitioner "decided to come down and have supper." As she descended the stairs between the third and second floor en route to her room, she fell on the last four steps of the stairway and sustained the injuries for which compensation is sought.

Petitioner testified that she was on call "for additional duties or other hours," as she phrased it, "in the sense they would ask you readily if they needed you." On cross-examination, however, she stated that she "worked two shifts straight once," but "[i]t wasn't within the two-week period that I just went back." Petitioner admitted that she was free "to go any place" she desired after her daily tour of duty, and that she had no restrictions "as far as your curfew."

The judge of compensation found that "[w]hile the petitioner was not required to live at the hospital," she and others did so and "they were obviously at the service of the hospital, if required, although they were not on 24 hour duty." He found that petitioner "put herself in the position of being available for service when required, having lived at the hospital, and while she could go out at will, she didn't have to return, she could live home if she wished. This is what she was doing at the time the accident happened." He concluded that there was "an employee-employer relationship; that she did meet with a compensable accident arising out of and in the course of her employment on the date alleged.

Respondent contends that petitioner did not sustain her injuries in an accident "arising out of and in the course of employment"; that she was not performing any of the duties of her employment at the time of the accident or doing anything

incidental to it, and that the accident was a personal-type occurrence, disassociated from the employment, as would be likely to occur anywhere and any place that the employee ...


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