Opinion
No. 12–P–1110.
2013-09-25
Troy CARBONE'S CASE.
Scaltreto v. Foreign Auto Parts, 9 Mass. Workers' Comp. Rep. 484, 487 (1995). 3
By the Court (GRAINGER, BROWN & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Troy Carbone, the employee, appeals from a decision of the reviewing board of the Department of Industrial Accidents (department) affirming an administrative judge's determination that the employee is not entitled to workers' compensation because he was not injured in an industrial accident. Because the employer benefitted from the employee's authorized use of a company vehicle at the time of the automobile accident that caused the employee's injuries, we vacate the decision of the reviewing board and remand for further proceedings.
1. Background. The administrative judge found the following facts. The employee managed a freight terminal as a salaried employee of Apex Express. Although the employer expected the employee to be available via cell phone twenty-four hours per day, seven days per week, the administrative judge found that the employee was not on call or expected to be working during his commute to work.
The employee regularly commuted to work in a pickup truck provided by his employer. The employer preferred that the vehicle be kept in use throughout the year so it would be in good condition when needed to plow snow in the winter. The administrative judge credited the employee's testimony that the employer told him he could use the vehicle to commute to work and avoid putting “wear and tear on my vehicle.”
The employee challenges this finding, but it was adequately supported.
In addition, the employee testified that he sometimes used the employer-provided vehicle to follow the company's drivers so that he could monitor their performance. The administrative judge's findings did not address this testimony.
On the night of the accident, the employee was driving the company truck to work the night shift. A deer entered the roadway, and the employee swerved to avoid it. While he did not strike the animal, he did collide with a guardrail on the side of the road. His injuries in this accident formed the basis for his workers' compensation claim.
The administrative judge applied the “going and coming rule,” which states that employees injured while going to or coming from work are in most cases not eligible for workers' compensation, to hold that the employee's accident was not a compensable industrial accident. See Haslam's Case, 451 Mass. 101, 101–102 (2008). The employee appealed this decision to the reviewing board, which summarily affirmed the administrative judge's decision, and the employee timely appealed to this court.
2. Analysis. An employee is entitled to workers' compensation for injuries “arising out of and in the course of his employment, or arising out of an ordinary risk of the street while actually engaged, with his employer's authorization, in the business affairs or undertakings of his employer.” G.L. c. 152, § 26. Our review of a decision of the reviewing board is narrow, but we may overturn a decision based on an error of law. Dalbec's Case, 69 Mass.App.Ct. 306, 312–313 & n.8 (2007).
The decision in this case was based on such a legal error. Before concluding that the accident did not arise in the course of employment, the administrative judge stated that “[t]he Employer and the Employee both received benefits from the Employee's use of the company truck for the commute” and determined that “the fact of his use of a company vehicle on that day is therefore not material to the issue before me.”
But an employee's injuries from a risk of the street are compensable, rather than barred by the going and coming rule, when the employee's authorized activity at the time of his injury benefited the employer. G.L. c. 152, § 26. When an employee's trip furthers a purpose of the employer beyond simply going to or from the place of employment, an employee is regarded as actually engaged in the employer's business. Caron's Case, 351 Mass. 406, 410 (1966). Papanastassiou's Case, 362 Mass. 91, 93–94 (1972). In a virtually identical case in which the employee's custody of the employer's vehicle, rather than the employee's trip itself, is what furthered the employer's interest, the department properly articulated the controlling principles in finding injuries compensable:
“Although each case must be decided on its own facts, the common thread throughout the categories of exceptions [to the going and coming rule] is the employer's authorization of an activity that furthers its business interest thereby exposing an employee to a street risk. Kelly v. Middlesex Corp., 35 Mass.App.Ct. 30, 32 (1993), citing Caron's Case, supra; Wormstead v. Town Manager of Saugus, 366 Mass. 659, 666 (1975); Swasey's Case, 8 Mass.App.Ct. 489, 493–494 (1979). Where an injury is sustained under one or more of the exceptions, the rule has no application.
“An accident is in the ‘scope of employment, if the employee's ... activity is driven, at least in part, by a purpose to serve the employer.’ Kelly v. Middlesex Corp., supra at 32, citing Restatement (Second) of Agency § 228 (1958). (Emphasis added). Conversely, where an ‘employee's acts are for purely personal purposes, unconnected in any way with the employer's interests, then the employee is ordinarily acting outside the scope of his employment.’ Id., citing Prosser & Keeton, Torts 506 (5th Ed.1984) (emphasis added). Furthermore, if an employee is injured while ‘on call,’ or while engaged in authorized activities consistent with and helpful to the accomplishment of the employer's functions, an injury maybe compensable even though the employee is not actually working ‘on the clock’ or being paid at the time. See Wormstead v. Town Manager of Saugus, 366 Mass. at 664–665;Rupp's Case, 352 Mass. 658, 659–660 (1967).”
Scaltreto v. Foreign Auto Parts, 9 Mass. Workers' Comp. Rep. 484, 487 (1995).
In that case, the employee was hurt in an accident while driving his employer's truck to commute to his place of work. Id. at 485. In remanding the matter for additional findings, the reviewing board observed that if the judge credited testimony that the employer benefited from the employee's custody of the truck preventing vandalism, “the employee would have sufficiently demonstrated that he was engaged in the employer's business affairs with its authorization” such that his injuries would be compensable. Id. at 488. The fact that the employee derived some benefit from his use of the vehicle was irrelevant. Ibid.
The administrative judge departed from these principles in error. He found that the employee was authorized to drive the employer's truck to work and that the employer benefited from this use in that it helped ensure the truck would remain in good working order. As a result, the injuries the employee sustained are compensable.
3. Conclusion. The decision of the reviewing board is vacated, and the matter is remanded for further proceedings consistent with this opinion.
The employee requested attorney's fees and expenses in his brief. Because he has prevailed on appeal, he is entitled to reasonable attorney's fees and other necessary expenses. G.L. c. 152, § 12A. The employee shall file an application for fees and costs, accompanied by an affidavit and supporting documentation, within fourteen days. See Fabre v. Walton, 441 Mass. 9, 10–11 (2004). The appellee shall have fourteen days thereafter to respond.
So ordered.