Opinion
Board No. 72222-91
Filed: January 19, 1996
REVIEWING BOARD DECISION
(Judges Fischel, McCarthy and Wilson)
APPEARANCES
Armand Fernandes, Jr., for the employee at hearing
Diane Cole Laine, for the insurer at hearing
Kevin Finnerty, for the employee on review
Ann P. Hagearty, for the insurer on review
The question presented by this appeal is whether the employee's death was attributable to an "ordinary risk of the street" within the meaning of G.L.c. 152, § 26. The employee in this claim was killed in a motor vehicle accident while travelling home from work. In his October 6, 1993 decision the administrative judge denied and dismissed the claim on the part of the employee's wife for survivor's benefits, concluding that the subject accident did not fall within the scope of the Act due to the application of the going and coming rule, and that the claimant was precluded from recovery under c. 152 because she had collected proceeds of motor vehicle policies. We reverse the judge's conclusion as to the claimant's receipt of collateral insurance settlements, since it is erroneous as a matter of law. We recommit the case for further findings as we cannot discern from the judge's decision how he reached the conclusion that the going and coming rule bars recovery.
General Laws c. 152, § 26 provides, in pertinent part:
If an employee who has not given notice of his claim of common law rights of action under section twenty-four, or who has given such notice and has waived the same, receives a personal injury 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 employee's authorization, in the business affairs or undertakings of his employer, and whether within or without the commonwealth, he shall be paid compensation by the insurer or self-insurer, as hereinafter provided; . . . (Emphasis added.)
The judge made subsidiary findings of fact as follows:
On May 1, 1991, the employee was killed in a single motor vehicle accident while a passenger in a truck driven by a fellow employee. The accident occurred on Route 495, while the two men were travelling from Westford, MA to Taunton, MA. They were on their way home from a construction site in Westford, where they had completed a regular day of work at their regular hours. The employee lived in Fairhaven, MA, and had left his car in a public lot in Taunton, where the fellow employee lived. The employee was a mason foreman for the employer, for which he had worked as a mason or mason foreman on various occasions for the previous five years. The driver was a labor foreman for the same company. (Dec. 3-4.)
The employee travelled regularly to many different job sites throughout the state in the course of his employment with the employer. The employee always travelled directly to the job site, without reporting to the employer's headquarters in Malden MA. On the day of the accident, and during the duration of the Westford project, the employer paid the employee a travel allowance, which amounted to $16.00 per day for his travel from Fairhaven to Westford. The driver also received a travel allowance during his employment at the Westford site. (Dec. 4-5.)
The employer paid a travel allowance to some foremen, which amounts were determined by the project manager, subject to the approval of the corporate office. The travel allowance was not a union requirement. The travel allowance was based on a rough formula of $.27 per mile, and was nontaxable. There was always a twenty mile deductible. The travel allowance was paid by special check, separate from the employee's regular paycheck. (Dec. 4-7.)
The remainder of the judge's "subsidiary findings" underlying the issue of the application of the going and coming rule are recitations of testimony. The judge stated:
The controller [of the employer] testified that some, but not all the [employer's] foreman and subforeman (sic) received a "travel allowance." She testified that at times none was given and that it was at all times discretionary on the part of the company.
. . .
[The employer's president] testified that the [employer] considered that the allowance was a small sum intended as a fringe benefit and was gratuitous in nature. It is the contention of the [employer] that the sum paid as a "travel allowance" were (sic) paid only to foremen and subforemen, and then, not in every instance.
(Dec. 6-7; emphasis added) The judge also stated, "Such payment allegedly benefited the employer by permitting it to retain qualified men on these distant job sites notwithstanding the amount of travel required." (Dec. 4; emphasis added.)
Regarding the matter of the claimant's receipt of payments from motor vehicle insurers, the judge made the following subsidiary findings:
[It] was not contested and it is undisputed that [the claimant], as administratrix of the estate of [the employee], received $20,000.00 from [the driver's] automobile insurer for the death of her husband. This was the policy limit. She also received the maximum P I P payment in the amount of $8000.00 as well as $30,000.00 in underinsurance proceeds from [their] own insurer.
(Dec. 7.)
The employee's widow filed the instant claim for benefits under §§ 31, 33 and 30 after she found stubs of the travel allowance checks with the employee's records. The claim was denied at conference, and went to hearing on the claimant's appeal. At hearing the claimant and the fellow employee/driver testified for the claimant, and the comptroller and president of the employer testified for the employer, along with a representative of the driver's motor vehicle liability insurer. (Dec. 2-3, 7.)
The judge concluded that the claimant had failed to prove that the employee's activities at the time of his death fell within any exception to the "going and coming" rule, which the judge cited in accordance withMaguire's Case, 16 Mass. App. Ct. 337, 339 (1983): "Ordinarily, injuries occurring while the employee is going to and from a fixed place are not compensable." The judge further concluded that "the payment of the 'travel allowance' was not sufficient to require a finding that this particular fact situation falls without the general 'going and coming rule'." The judge therefore denied and dismissed the claim. (Dec. 9-11) The judge further concluded that, in the event that the "going and coming" rule were inapplicable in this case, "the claimant would be precluded from recovery by the fact that she collected the appropriate proceeds of the motor vehicle policies that were available to her at the time of the employee's death." Finally, the judge determined that G.L.c. 152, § 7A was inapplicable to the case, and that he did not need to address the insurer's defense of late claim under G.L.c. 152, § 41.
General Laws c. 152, § 7A (St. 1991, c. 398, § 21) states,
In any claim for compensation where the employee has been killed or found dead at his place of employment or, in the absence of death, is physically or mentally unable to testify, and such testimonial incapacity is causally related to the injury, it shall be prima facie evidence that the employee was performing his regular duties on the day of injury or death and that the claim comes within the provisions of this chapter. That sufficient notice of the injury has been given and that the injury or death was not occasioned by the willful intention of the employee to injure or kill himself or another.
This amended version of § 7A is applicable to the instant case, even though its effective date was December 23, 1991, and the date of injury was May 1, 1991, as the legislature deemed the amendment procedural in character, and therefore retroactive. St. 1991, c. 398, § 107.
General Laws c. 152, § 41 (St. 1985, c. 572, § 50) provides, in pertinent part:
No proceedings for compensation payable under this chapter shall be maintained unless a notice thereof shall have been given to the insurer or insured as soon as practicable after the happening thereof, and unless any claim for compensation due with respect to such injury is filed within four years from the date the employee first became aware of the causal relationship between his disability and his employment. In the event of death, no claim shall be made later than four years after the death. Where an action against a third person, as provided by section fifteen, is discontinued, no claim for compensation shall be made later than sixty days after such discontinuance.
The claimant on appeal argues that the going and coming rule does not apply to this case, and that her recovery of proceeds from other sources of insurance does not bar her from recovery. She contends that the judge's decision to the contrary is arbitrary, capricious, and contrary to law. Because we cannot determine whether the judge applied correct rules of law regarding the going and coming rule, due to the inadequacy of the subsidiary findings addressing that issue, we must recommit this case.
General Laws c. 152, § 26 provides that an employee may receive workers' compensation benefits for "a personal injury 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 the employer. . . ." An injury arises out of the employment if it emerges from "the nature, conditions, obligations or incidents of the employment." Papanastassiou's Case, 362 Mass. 91, 93 (1972). As the judge found below, the general rule is that injuries occurring while the employee is going to or from a fixed place of work are not compensable, i.e. they do not arise out of the "nature, conditions, obligations or incidents of the employment." See Maguire's Case, supra; Chernick's Case, 286 Mass. 168, 172 (1934). However, "where it appears that it was the employment which impelled the employee to make the trip, the risk of the trip is a hazard of the employment." Caron's Case, 351 Mass. 406, 409 (1966). Other cases have addressed this issue of what takes a particular act of travel out of the "going and coming rule" by focusing on whether the subject travel furthers the interests of the employer, and, if so, to what extent. See Scaltreto v. Foreign Auto Parts, 9 Mass. Workers' Comp. Rep. ___ (August 23, 1995); Swasey's Case, 8 Mass. App. Ct. 489, 494 (1979); Wormstead v. Town Manager of Saugus, 366 Mass. 659, 666 (1974). "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'." Scaltreto, supra, citing Kelly v.Middlesex Corp., 35 Mass. App. Ct. 30, 32 (1993).
We must recommit this case because the judge recited testimony regarding the crucial facts to be weighed in the § 26 analysis here, and did not adopt any one part of the evidence that he recounted. See Antoine v.Pyrotector, 7 Mass. Workers' Comp. Rep. 337, 341-42 (1993) (unresolved inconsistencies in recitation of medical testimony required recommittal). On one hand, the judge recites that the employer "considered" its payment of the travel allowance to be a gratuitous fringe benefit. On the other hand, the judge recites that the travel allowance "allegedly" benefited the employer permitting it to retain qualified men to work at distant job sites. If these two pieces of evidence were proper subsidiary findings, each would support a different conclusion as to whether the subject travel was "incident to the employment" within the meaning of § 26. Cf. Leveille v. AT T Communications, 9 Mass. Workers' Comp. Rep. ___ (August 31, 1995) (no error where judge was clear in his adoption of recited testimony). In Messersmith's Case, 340 Mass. 117 (1959) the court stated, "[T]here should be 'such specific and definite findings upon the evidence reported as will enable this court to determine with reasonable certainty whether correct rules of law have been applied.'" Id. at 120, citing Judkin's Case, 315 Mass. 226, 227 (1943). Where a decision fails to contain such specific and definite findings, "the natural disposition of the case [is] to remand it . . . for the finding of subsidiary facts." Roney's Case, 316 Mass. 732, 739 (1944).
The judge's conclusion that the claimant was barred from recovery because of the going and coming rule would appear to indicate that the judge found that the payment of the travel expense here to be a gratuitous fringe benefit, and therefore not an incident to the employment under § 26. See Isokungos v. Seppela Aho Construction, 2 Mass. Workers' Comp. Rep. 154, 155-156 (1988); Andrade v. M.B.T.A., 3 Mass. Workers' Comp. Rep. 232, 233-234 (1989). However, our review of the record reveals an evidentiary basis — introduced solely by representatives of the employer — for the judge's recitation that the payment of a travel allowance "allegedly" benefited the employer by permitting it to retain qualified men on distant jobs: There was uncontroverted evidence that the payment of the travel allowance was to keep "important" employees working for the employer. (Tr. 101-102.) The project manager would determine whether and how much particular foremen would receive in travel allowances for a particular project, based on a determination of a "critical need" to keep those good employees on the project. (Tr. 110.) The evidence was also uncontroverted that the employee was such a preferred employee, and that the "travel allowance" was a recognition of that fact. (Tr. 109-110.) It was uncontroverted that the employee was, in fact, travelling a substantial distance daily from his home in Fairhaven to the jobsite in Westford, and that the $16.00 travel allowance was paid in consideration of that fact. (Tr. 93.) The judge made no findings on this uncontradicted evidence, which, if credited, would require that the subject travel be considered to be driven in part by a purpose to serve the employer. As such, this claim would be within the bounds of liability under § 26. SeeScaltreto, supra.
The judge cited both of these cases in his general findings applying the going and going rule. (Dec. 9-10.)
While necessarily leaving it to the judge to determine, the judge on recommittal should apply the Appeals Court's most recent analysis of how the employer's payment of travel expenses can be a factor in excepting a case from the realm of the going and coming rule. This analysis is set out in Swasey's Case, 8 Mass. App. Ct. 489 (1979), further appellate review denied, 379 Mass. 927 (1980). In Swasey, the employee was an engineer who was hired by a firm which assigned and dispatched engineers to client companies in need of engineering services. The employee was to work on a project for IBM in Poughkeepsie, NY, 200 miles from the employee's home in Arlington, MA. The employee demanded more money than the employer offered, for travel and lodging expenses associated with his staying there from Monday to Friday, and commuting home for the weekends. The employer gave the employee a per diem compensation of $1.25 per hour up to $50.00 per week, and the employee accepted the IBM project on that basis. The employee was injured in a motor vehicle accident on his way home one Friday night. Id. at 490-491.
The court reasoned that the "very nature of [the employer's] business [was to] assign and dispatch [the employee] to distant areas . . . to work on a specific project until completion or reassignment." As such, the court concluded:
It was to the benefit of [the employer's] business interests that its employees travel. . . . This is obvious from [the employer's] payment of a per diem amount for purposes of living or travel expenses, whichever the employee might choose. . . . Although [the employee] was not injured during the hours he worked at Poughkeepsie, he was injured while engaged in an activity which constituted a critical and substantial incident of his employment for which he received compensation. Therefore, [the employee's] accident could properly be found to be within the "risk of the street while actually engaged . . . in the . . . undertaking of his employer," that is, travelling from [the] worksite.
Swasey at 494, citing Papanastassiou's Case, 362 Mass. at 93-94. (emphasis added.) In the instant case, there was uncontroverted evidence of benefit to the employer's business interests deriving from the employee's travel to various distant jobsites. Therefore, the payment of the travel allowance in this case could be seen as analogous to the per diem compensation inSwasey. The undisputed evidence indicated that this travel allowance was paid to the employee in order to keep him working for the employer, since he was an "important" employee, a mason foreman. The extent of travel in the instant case — 160-170 miles per day — was greater than in Swasey, where the employee was travelling 400 miles per week. (Tr. 93.) The amount paid for the travel allowance was likewise not insubstantial, at the rate of $16.00 per day, nontaxable. Moreover, the employment in Swasey entailed jobsites that were constantly changing in the same manner as in the instant case: they were "fixed" only for a limited duration of months. See Swasey at 491; Frassa v. Caufield, 22 Mass. App. Ct. 105,109-110 (1986) (citing Swasey, court stated that the going and coming rule "has no application to employees who have no fixed place of employment.") (Tr. 117-18, 203-205.) As such, "[a]lthough Swasy's [and this employee's] employment did not require continuous mobility, it did impel travel, and 'where it appears that it was the employment which impelled the employee to make the trip, the risk of the trip is a hazard of the employment.'"Swasey, supra, citing Caron's Case, 351 Mass. at 409. On recommittal, "[t]he 'going and coming' rule [could be found to have] no application to this case if when [this employee's] employment is viewed in its entirety, his travel was of such a nature that it brings him within 'that class of "travelling workers" not barred from receiving compensation.'" Swasey, supra, citing Wormstead v. Town Manager of Saugus, 366 Mass. at 666. We, of course, leave it to the judge to make specific and definite findings of fact addressing these issues.
We also find instructive language in the concurrence in Dow v.Intercity Homemaker Service, 3 Mass. Workers' Comp. Rep. 136 (1989). In that case the employee, a nurse whose employment was to make home visits to elderly and disabled people, was injured on her way to her first job. The employer paid her a weekly stipend for travel. She also similarly travelled directly to the homes she visited, without going to the main office of the employer. Id., at 137-138. The majority found that her accident fell within the second prong of § 26, and was compensable. The concurrence elaborated:
[B]y paying the travel allowance, the employer acknowledged that travel was an integral part of the employee's work exposing her to the risks of the street contemplated by § 26 of the Act. . . . Simply stated, the employee's work placed her at greater risk than that faced by the average commuter and the employer recognized that risk by paying her a travel allowance. . . . I believe this peripatetic employee should be included in that class of "travelling workers" not barred by the "going and coming" rule from receiving compensation to which she is otherwise entitled.
Id. at 141. (Emphasis added.)
The judge's general finding, that the claimant is precluded from recovery under the Act by her receipt of funds from motor vehicle liability insurance policies, does not have any basis in the law. The claimant acted prudently in pursuing her rights against the motor vehicle insurer for the responsible party, the co-worker who was driving the truck. Her action in so doing cannot be held against her simply because she subsequently discovered the requisite evidence to bring her claim before the Board, namely the employee's records of travel expense payments. Receipt of proceeds from that third party insurer does not eradicate, ab initio, any rights under c. 152 that the claimant might have, notwithstanding the common law immunity against the fellow employee tortfeasor. The insurer may seek its offset under the provisions of G.L.c. 152, § 15, pursuant to the policy against double recovery.
We note, on the other hand, that the claimant's $30,000.00 recovery of underinsurance proceeds should not be set off against any prospective recovery under c. 152, under the rule of law announced inWincek v. Town of West Springfield, 399 Mass. 700 (1987). The same presumably will hold true for the $8,000.00 received by the claimant in PIP coverage.
The insurer renews the issue of proper notice in its defense of this appeal. The judge did not reach this issue in his decision. The insurer contends that the instant claim was time-barred, citing § 41, that "[w]here an action against a third party, as provided by section fifteen, is discontinued, no claim for compensation shall be made later than sixty days after such discontinuance." On the undisputed facts of this case, it is apparent that this defense cannot succeed.
Here, the claimant did not discontinue the action in the sense of abandoning it. Rather she settled her claim against the motor vehicle insurer for the co-employee/driver as of October 2, 1991. (Dec. 2.) In addition, even though the instant claim was not filed until April 1992, over sixty days after that settlement, there is no bar, because the claimant "first became aware of the causal relationship between [the employee's] disability [his death] and his employment" when she found the records of travel expense payments in April 1992. G.L.c. 152, § 41. (Dec. 7.) The claimant moved immediately to file her claim at that time, which was filed well within sixty days of her discovery of that causal relationship. The insurer's § 41 defense cannot prevail as a matter of law.
Finally, the judge determined that the testimonial presumption of § 7A was not warranted on the facts of this case, as well as on the fact that it was not claimed. The claimant's failure to put § 7A at issue is no bar to its applicability. § 7A is self-operative, and the judge must address it whenever its applicability becomes an issue. Bechtold v. Compo Industries, 2 Mass. Workers' Comp. Rep. 269, 272 (1988). When the employee cannot testify due to his death, § 7A is automatically at issue and must be applied. We have construed the language of the 1991 amended version of § 7A to have affected no change in application of the statute's presumption in favor of deceased employees. Wyman v. Courier Citizen Co., 9 Mass. Workers' Comp. Rep. 333, 340-341 (1995) ("Where the employee is deceased § 7A operates as it had in the past, as prima facie evidence that the employee was performing his or her regular duties on the date of death.") On recommittal, the judge must apply § 7A. The insurer will then have the burden of producing evidence sufficient to meet the prima facie evidence that "the claim comes within the provisions of this chapter. . . ." G.L.c. 152, § 7A. See Anderson's Case, 373 Mass. 813, 817 (1977) ("even in the presence of contradictory evidence, prima facie evidence is sufficient to sustain the proposition to which it is applicable").
We recommit the case for the judge to make further findings consistent with this opinion. The judge may reopen the record and conduct whatever proceedings that he deems necessary to assist him in disposing of the issues before him.
______________________________ Carolynn N. Fischel Administrative Law Judge
______________________________ William A. McCarthy Administrative Law Judge
______________________________ Sara Holmes Wilson Administrative Law Judge
Filed: January 19, 1996