No workers’ comp for employee injured on way to job

A worker who was injured while commuting from his home to a construction site was not entitled to workers’ compensation even though the job required him to travel to a different location every day, a reviewing board of the Massachusetts Department of Industrial Accidents has ruled.

The employee argued that because he had no fixed work hours or place of employment, his injuries fell within the coverage of “traveling employees” under the state’s workers’ comp statute.

But the board disagreed.

“The test for compensability [as a traveling employee] is whether the employment has impelled the employee to make the trip, in the sense that the employee’s job duties require the travel and he is actively engaged in the employer’s business when injured,” Administrative Judge Bernard W. Fabricant wrote for the board, affirming a decision at the hearing level.

“This employee’s travel was in the nature of a commute from his home to that day’s assigned jobsite, and at the time and place of the motor vehicle accident, the employee faced no greater risk of the street than another commuter,” Fabricant continued. “As such, the employee failed to prove that his injury arose out of and in the course of his employment.”

The 18-page decision is In Re: Rose, Justin.

Closing the umbrella?

Paul S. Danahy of Braintree, Mass., who represented the employee, said the decision goes against the intent of the workers’ comp statute, which is to bring as many people under its umbrella as possible.

“Appellate courts have routinely said [that is the purpose of the statute],” Danahy said. “And while available benefits were cut back in the 1991 revision of the statute, it didn’t change the beneficent design of the law. But the review board seems to be trying to bring fewer people under the umbrella based on this decision.”

The employee plans to appeal the decision, Danahy added.

“The decisions of the reviewing boards at the DIA have been all over the place, so this is a good opportunity for the [Massachusetts] Appeals Court to give some guidance,” he said.

Bruce S. Lipsey of Epstein, Lipsey & Clifford in Hanover, Mass., represents employees in workers’ comp disputes. He called it a “stretch” for the reviewing board to find that while there were no fixed hours or place of employment — either of which would have barred the claim under the “going and coming” rule — the claim was not compensable.

Citing Administrative Judge Mark D. Horan’s dissent, Lipsey stated that one rationale of the going and coming rule is to prevent an insurer from being at risk when the employee chooses a dangerous locale in which to live, voluntarily exposing himself to a higher street risk.

“But if the employee is compelled to go to different locations all the time, which was the evidence here, the employee is [involuntarily] exposed to a higher degree of street risk,” he said. “Then, as the dissent points out, the burden should shift to the insurer and coverage should be afforded.”

Paul M. Moretti represents both employees and insurers in his practice at Curtin, Murphy & O’Reilly in Boston. He said the decision is consistent with existing law surrounding the going and coming rule.

“Though the employee here did not have a fixed place of employment like many of us do, where we go to the same office or factory every day, he did travel to a discrete place every day and stayed there to the end of the workday,” said Moretti, who was not involved in the case.

That is no different than in the majority of occupations, Moretti said, distinguishing the employee in Rose from salespeople, appraisers and visiting nurses, whose duties require them to be out and about during the course of their workday.

Moretti also questioned a statement in Horan’s dissent that blue-collar workers deserve as much protection as white-collar workers.

“I would agree, but that’s not the issue here,” he said. “We have white-collar workers who go to a fixed place of employment every day who are not covered. And we have blue-collar workers that travel every day, like people delivering newspapers and appliance repair technicians, who would be covered. So I see no distinction based on whether you’re a laborer or not. It’s the job itself you have to look at.”

Neither Lori J. Harling of Long & Leahy in Boston, who represented the insurer at the hearing level, nor her colleague Erin M. Mullin, who represented the insurer on appeal, could be reached for comment prior to deadline.

Traffic accident

On Oct. 30, 2006, Justin Rose started work at a concrete and cement fabrication company.

On his drive home from that day’s job site, the employee’s vehicle had a flat tire. Another tire was worn, so he decided against using the car before purchasing new tires.

The next day, co-worker Jason Cardoza picked up the employee at his mother’s house in Falmouth, Mass. to bring him to a new job site in Lexington, Mass. The employee drove because Cardoza was tired.

Minutes after their departure, another vehicle crossed the median and struck them head on. The employee suffered two bone fractures, a left-hand tendon injury and a lacerated spleen.

In December 2006, the employee filed a claim for workers’ comp benefits. The insurer, Granite State Insurance Co., denied the claim, maintaining that the injury did not occur in the scope of his employment.

The dispute proceeded to the DIA, where an evidentiary hearing was held in January and April 2008.

Administrative Judge Maureen McManus found that because the employee did not have a fixed place of employment, the going and coming rule did not, on its own, bar recovery. But she also found that the employee’s injury occurred during the normal course of his commute, not on a special call by the employer or in furtherance of the employer’s business.

Additionally, the judge noted, the employee was not paid for his traveling time.

Accordingly, McManus ruled that the injury was not compensable. The employee appealed.

Outside the scope

The reviewing board rejected the employee’s argument that because he reported to a different work site every day, he should be considered a “traveling employee” covered by the workers’ comp statute.

In doing so, it distinguished several cases in which other workers had been awarded compensation as traveling employees.

“In those cases, the work performed by those employees entailed traveling to and between numerous work-related destinations within a single work day,” Fabricant said. “Mr. Rose, on the other hand, traveled to only one destination on [Oct.] 30, 2006, and was traveling to only one destination, the Lexington job site, on the day of the motor vehicle accident.”

Instead, the board likened the case to the situation in Smith’s Case, decided by the Massachusetts Supreme Judicial Court in 1950.

In that case, the SJC found that a city welfare department employee who performed housework at a different home every day was not a “traveling employee” whose employer exposed her to an unusual risk of the street.

“The present case is indistinguishable,” Fabricant said. “Moreover, the lack of payment for travel time or for the travel itself, as found by the judge, while not dispositive, is also a factor mitigating against compensability.”

Ultimately, Rose faced no greater risk of harm than any other commuter, the board found. Thus, it concluded his injury was outside the scope of employment and not compensable.

In his dissenting opinion, Horan stated that based on the hearing judge’s findings, Rose — in the absence of fixed hours or a fixed place of employment — was clearly a “traveling employee.”

“There was nothing ordinary about the employee’s commute,” he said. “Because his employer ordered him to travel to a different destination each day (causing him to depart from home at different times, the employee was exposed to a different ‘street risk’ every day.”

Horan also suggested that the majority’s analysis in the case would unfairly impact laborers as opposed to white-collar workers who, despite having fixed places of employment, tend to enjoy compensation coverage from “portal to portal” for all risks of out-of-office business travel.

Finally, Horan said, denying coverage to workers like Rose could increase the commonwealth’s public assistance burden while exposing such workers to tort liability for injured co-workers in the same car pool.