Opinion
Board No. 75837-89
Filed: August 23, 1995
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, Kirby and Smith)
APPEARANCES
James R. Burke, Esq., for the employee.
Paul Moretti, Esq., for the insurer.
The employee sustained injuries while traveling from home to his place of employment. His claim for compensation was denied, when the administrative judge precluded it by operation of the "going and coming" rule. The employee appealed. Finding error, we vacate and remand for further findings.
The employee, Mr. Scaltreto, worked as a parts driver and counter person for Foreign Auto Parts, Inc. The vehicular catastrophe occurred on November 18, 1989, at approximately 7:20 A.M. while en route from his home in Marlboro, Massachusetts to his fixed place of employment in Framingham, Massachusetts. On that date, the employer's truck while operated by the employee, skidded out of control on ice. Mr. Scaltreto sustained serious injuries including a transected descending aorta, fractured facial and pelvic bones, right pulmonary contusion, a right clavicular fracture, subclavian artery disruption, as well as brain injuries. (Dec. 4, 5.)
The insurer did not accept Mr. Scaltreto's claim for compensation. Following a § 10A conference, an administrative judge ordered § 34 temporary total benefits at a weekly rate of $258.67 from November 18, 1989 and continuing plus § 30 medical benefits.
The insurer appealed. After a full evidentiary hearing, the judge issued a decision on February 21, 1992 in which the insurer's proposed findings were adopted verbatim. The judge found that use of the employer's truck was an "attractive perk," insufficient to remove the case from the purview of the "going and coming" rule. (Dec. 8.) As such, the judge ruled that the employee's incapacity did not arise out of or in the course of employment. Id. The judge who had adopted the opinion of the insurer's expert, Dr. Arthur Safran, found that as of June 26, 1990, Mr. Scaltreto could perform full-time sedentary work that did not require driving a truck or lifting over 25 pounds. (Dec. 8, 9.)
Dr. Safran examined the employee for the insurer on June 26, 1990 and January 2, 1991, submitted three reports, and gave depositional testimony. The judge recited Dr. Safran's opinion that the accident of November 18, 1989 caused objective neurologic deficits leaving the employee with certain restrictions, namely that he was unsteady, fatigued easily, had difficulty in abstractions, some slurring and dysarthic speech, concrete proverb interpretation, central ataxia and impairment in finger to nose testing. (Dec. 6-8; Safran Dep. 14-15, 18-19, 24; Ex. 4; see Safran Dep. 23-24, 28 and Exs. 2, 3 (causally relating disability to November, 1989 motor vehicle accident.))
The judge credited the opinion of the employer's store manager, Michael Travers, who testified that the employee was not scheduled to make any deliveries before arriving at the store on Saturday, November 18, 1989 as pick-ups were assigned on Fridays, but that he was expected to open the store on that date. (Dec. 3-4.) The judge purportedly "found" that the employee's primary duties on Saturdays were to open and close the building, answer telephones, take orders, and on rare occasions, about two or three times yearly, the employee was required to pick up auto parts at other stores before assuming his duties at the part shop. (Dec. 4.) The judge further "found" that the employee "occasionally" made deliveries to other Foreign Auto Body locations and that the employer permitted Scaltreto to use the company vehicle as an "attractive perk" for work and personal use. (Dec. 3, 4, 8.) See supra, n. 2.
See discussion, infra regarding lack of evidentiary support for certain of these findings.
The employee appeals from this decision. He argues that 1) use of the employer's truck was not merely an "attractive perk" but a requirement of the employment and that claim exclusion under the going and coming rule was misapplied, 2) that crucial findings of fact, taken word for word from the insurer's proposed decision, had no support in the evidence and 3) that adoption of Dr. Safran's opinion that the employee could perform full-time sedentary work was error. We find merit in these arguments. Therefore, we remand for the reasons set forth below.
Under § 26 of the Act, there is a two prong test for compensability. Section 26 provides that an employee may receive benefits for "[1] personal injur[ies] 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. . . ." (Emphasis added.) G.L.c. 152, § 26; seeSwasey's Case, 8 Mass. App. Ct. 489, 492-493 (1979); Hamel's Case, 333 Mass. 628, 629 (1956). The fundamental question in this case is whether the administrative judge erred as a matter of law in failing to find that the employee's injuries arose out of and in the course of his employment under the second prong of § 26. That is, did the injuries sustained result from a street risk while engaged with the employer's authorization in its business affairs?
An injury arises out of the employment if it emerges from the nature, conditions, obligations or incidents of the employment, in other words the employment looked at in any of its aspects. Papanastassiou's Case, 362 Mass. 91, 93 (1972), quoting Caswell's Case, 305 Mass. 500, 502 (1940). Usually, injuries occurring while an employee is traveling to or from a fixed place of employment are not compensable under the Act. Chernick's Case, 286 Mass. 168, 172 (1934). This general rule, commonly referred to as the "going and coming" rule, has multiple exceptions. See Chernick's Case, 286 Mass. 168 (1934) (traveling salesman, "employer mission");Souza's Case, 316 Mass. 332 (1943) ("on call" employee); Papanastassiou's Case, supra ("employment risk", where researcher required to assure successful experimental outcome had after-hours fatal auto accident en route from lab to home).
Although each case must be decided on its own facts, the common thread throughout the categories of exceptions 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 may be compensable even though the employee is not actually working "on the clock" or being paid at the time. SeeWormstead v. Town Manager of Saugus, 366 Mass. at 664-665; Rupp's Case, 352 Mass. 658, 659-660 (1967).
As this was a verbatim adoption of the insurer's proposed draft decision, we examine the record very closely. See Cormier v. Carty, 381 Mass. 234, 236 (1980) (for court treatment of verbatim adopted draft decisions).
In his general findings on the liability issue the judge stated:
"I find that the employer provided truck to the Employee for his personal use was an attractive perk, not a requirement of employment and not sufficient to take the case out of the scope of the `going and coming' rule."
This general finding on liability casts doubt on whether the judge appreciated that an employment requirement may partake of a perk as well. As stated above, the benefit need not be exclusively for the employer before the resulting street risk injury comes under the terms of § 26. Moreover, we find uncontroverted testimony by insurer's witness, the store manager. The employee had been authorized to use the company truck for his personal travel to and from work, as a "perk", but also as 1) a "benefit" to Foreign Auto Parts in that "the truck would be sort of looked after after store hours. If not, it would be left behind [at] the store. . . . [and] [t]here has always been a concern from the main office that the trucks being left overnight [would be] vandalized." (Tr. 38-39.) The store manager also testified that it was 2) a "benefit" to the employer, ". . . if we . . . needed [a] part in the Worcester store or another store [the employee] would leave his house in the morning." (Tr. 38.) And when asked if this pre-work day availability also saved time for the company, the manager responded, "[e]xactly." Id.
The judge made no findings on the pivotal and uncontradicted evidence from the mouth of the employer witness, which described the nature of the benefit the employer derived from the employee's use and nightly storage of the company vehicle. Should the judge credit said testimony, then the employee would have sufficiently demonstrated that he was engaged in the employer's business affairs with its authorization, when he received injuries arising from a street risk. G.L.c. 152, § 26. Although personal use of the truck may have been a perk of the job, the employer "benefited" by Mr. Scaltreto's protection of the truck from the feared night time vandalism and also by having the employee "on call" to pick up parts on his way to work if necessary, notwithstanding the fact that on the date in question there was no such need. See Wormstead, 366 Mass. at 660-662 ("on call" police officer sustained compensable injury in motor vehicle accident upon return from break despite absence of such call on injury date). It was enough that the travel between Scaltreto's residence and the street arose "in part" from the approved furtherance of and was incidental to the employer's business. See Kelly, 35 Mass. App. Ct. at 32; compare Froment v. Karten's' Jeweler's, 5 Mass. Workers' Comp. Rep. 268, 270 (1991) (coming and going rule bars compensation when fixed place of employment, job requires no travel and employer's payment towards parking charges was merely a "perk"). Both of the aforementioned employer-sanctioned benefits were "helpful" to and "consistent" with the employment and could thereby bring the employee's claim within c. 152's purview. See Wormstead, supra at 664-665.
See infra n. 4.
Accordingly, we vacate the ruling of noncompensability and remand the case for a redetermination of that issue.
The employee next argues that crucial findings in the decision have no basis in the evidence. We agree. Findings numbered 3, 6, 14 and 16 erroneously state that Mr. Scaltreto was an "assistant manager/counter person", that he "occasionally" made deliveries to other Foreign Auto branch locations; that on Saturdays he worked "primarily" in opening the store, answering telephones, and taking orders; and that on "rare" occasions, "approximately two to three times per year", he was required to pick up auto parts at other stores on Saturdays before assuming his duties as "assistant manager/counter person". (Dec. 3-4.)
The uncontroverted testimony was that Mr. Scaltreto was employed as a parts driver/counter person and not an assistant manager. He worked 80% as a driver and 20% as a counter person from Monday to Friday and on Saturday, he worked 50% as a driver and 50% as a counter person. There was no evidence as to how often Scaltreto had to pick up parts on the way to work on Saturdays. See (Tr. 36-38.)
Findings without evidentiary support may not form the basis of the reasoned decision a judge must afford to litigants. Scheffler's Case, 419 Mass. 251, 258 (1994). As such, we strike those portions of the findings enumerated above that are wholly unsupported by the evidence.
Finally, we also remand to the administrative judge for a determination on the extent of incapacity. While Dr. Safran opined that the motor vehicle accident was causally related to the employee's many residual impairments (see supra n. 1), the doctor also opined that the employee could perform full-time sedentary work within restrictions. See (Dec. 6-8; Safran Dep. 14-15, 18-19, 23-24, 28; Ex. 2, 3.) However, on cross-examination the doctor clearly stated that he did not know what kind of work the employee could do because he was not a vocational specialist. (Dep. 26-27, 29.)
Certainly the qualified doctor, whose opinion the judge adopted, possessed expertise on the employee's medical restrictions. But the doctor's lay opinion about what the employee could or could not do within those limits was not dispositive of earning capacity issues. Although said lay opinion on the employee's sedentary capacity for work was evidence that could be weighed, consideration must be given to the employee's vocational profile before passing judgment on his earning capacity.
The determination of an earning capacity involves more than a medical evaluation of the employee's physical impairment. Scheffler's Case, 419 Mass. 251, 256 (1994). Physical impairments have a different impact on earning capacity in different individuals. Id. As the court recently stated in Scheffler's Case:
Education, training, age, and experience affect the ability to cope with the physical affect of injury. The nature of the job, seniority status, the attitudes of personnel managers and insurance companies, the business prospects of the employer, and the strength or weakness of the economy also influence an injured employee's ability to hold a job or obtain a new position. The goal of disability adjudication is to make a realistic appraisal of the medical effect of a physical injury on the individual claimant and award compensation for the resulting impairment of earning capacity, discounting the affect of all other factors. . . ."
Id. at 256, quoting from L. Locke, Workmens' Compensation § 321, at 375-376 (2d ed. 1981).
Thus, "a realistic appraisal" must be made of the effect a work injury has on an employee's capacity to make earnings of a substantial and not trifling nature based on his age, education, training, work experience, physical capabilities, and ability to obtain and hold a new position.Scheffler's Case, supra, at 256; Frennier's Case, 318 Mass. 635 (1945). To reach the earning capacity determination, first, those impairments that are work-related must be identified in the findings. Next, it must be resolved how said impairments contribute to the compensable incapacity.
Here a finding was made adopting Dr. Safran's opinion that as of June 26, 1990, the employee could perform "full time sedentary work . . . having in mind his educational background, intelligence, and transferrable skills." (Dec. 8-9.) (Emphasis added). This earning capacity finding combines the doctor's lay opinion on the employee's sedentary work ability with mention of certain vocational elements, yet it does not appear to conform with the earlier finding, based on the same doctor's views, that the motor vehicle accident left the employee "with certain restrictions, namely that he was fatigued, clumsy, unsteady, had difficulty in abstraction, and had some slurring of speech." (Dec. 7.) These facts as found — which reflect a diminution of prior skills and abilities — do not discernibly provide an adequate foundation for the seeming conclusion that the employee's pre-injury educational background, intelligence and skills survived the work injury and were transferable to another occupation. While the fact of industrially affected physical and cognitive changes is not necessarily exclusive of a vocational reliance on prior education, intellect and transferrable skills, conclusions in a decision lack meaning unless adequately supported by subsidiary findings based soundly in the evidence. See Altshuler v. Colonial Hotel, 7 Mass. Worker's Comp. Rep. 62, 64-65 (1993). The questionable earning capacity analysis in a decision adopted verbatim from the advocacy of the insurer makes this case appropriate for remand. G.L.c. 152, § 11C; see also Bellomo v. Osco Drug, 9 Mass. Workers' Comp. Rep. ___, ___ (June 30, 1995) (decisions which fail to evince a "badge of personal analysis" are more likely, in a close case, to be remanded for further findings).
On remand if the judge finds favorably on the liability issue, then he is to make clear findings on how the residual neurological and other related medical limitations, in conjunction with the vocational factors, affect the employee's capacity to earn. Scheffler's Case, supra;Frennier's Case, supra. If the judge determines Mr. Scaltreto has shown only partial medical limitations in the absence of direct vocational testimony on the matter he is entitled to use his own judgment and knowledge in determining the extent of the employee's earning capacity.Mulcahey's Case, 26 Mass. App. Ct. 1, 3 (1988).
See supra n. 1.
In conclusion, we find material factual errors, a potential legal error and a questionable earning capacity assignment. As such, we vacate the decision and deem this case appropriate for remand. G.L.c. 152, § 11C. We strike those aspects of Findings 3, 6, 14, and 16 as set out above. On remand, the judge is to assess liability consistent with the law set out in this opinion. Further, should liability attach, then the issue of extent of incapacity should also be revisited. As to incapacity, given the passage of time, further evidence may be adduced as necessary.
So ordered.
_________________________ Susan Maze-Rothstein Administrative Law Judge
_________________________ Edward P. Kirby Administrative Law Judge
_________________________ Suzanne E. K. Smith Administrative Law Judge
Filed: August 23, 1995