Summary
going and coming rule applied to bar recovery where employee was injured while in effect going home from fixed place of employment
Summary of this case from Fedders v. Federated Systems, NoOpinion
BOARD No. 05096795
Filed: July 15, 1997
REVIEWING BOARD DECISION
(Judges McCarthy, Smith and Maze-Rothstein)
APPEARANCES
William H. Troupe, Esq., for the employee.
Timothy M. Dunlavey, Esq., for the insurer.
The insurer appeals from a decision on the employee's initial liability claim. The judge found that the employee was acting within the scope of his employment when he slipped on ice, fracturing his right leg. The injury occurred after business hours in a motel parking lot. The employee had decided to stay overnight at the motel due to an impending snow storm so he could arrive at work on time the next day. Because the facts presented require a conclusion that the injury was not compensable due to the going and coming rule, we reverse the decision and deny the claim.
Peterson drove a truck making deliveries and pick ups at various locations in southern New Hampshire. His designation was that of a "city driver" based at the employer's freight terminal in Billerica, Massachusetts, some 54 miles from his home in Pembroke, New Hampshire. Peterson was paid by the hour, with his shift starting upon his arrival at 9:00 a.m. (Dec. 4.)
Peterson had been reprimanded by his employer several times that year for absences from work and tardiness. On Wednesday, November 29, 1995, the day before his injury, despite heavy snow, he had been instructed to report for work. His commute that day took two and a half hours, an unusually long time. On the day of his injury, Thursday November 30, 1995, he again arrived slightly late for work. (Dec. 4-5.)
While making his deliveries, Peterson learned that an approaching snow storm was forecast to hit the area the next morning. He called his dispatcher in Billerica to see if he could make a reservation at the Howard Johnson's Motel in Chelmsford, a short distance from the terminal. The employer had an arrangement with that motel for a special rate for its long haul "road drivers." (Dec. 5.)
After completing his deliveries, Peterson returned the employer's truck to the terminal and took his own pick up truck. He then made purchases of extra clothing and beer, and proceeded to the Howard Johnson's. He checked into the motel, paying with his own credit card, and fell on some ice in the parking lot while walking back to his pick up truck. Peterson suffered a broken right fibula. (Dec. 5.) The parties stipulated to the injury, the extent of incapacity, the employer/employee relationship on the day of the injury, average weekly wage and that the medical treatment was reasonable and necessary. The only issue in dispute at the hearing was liability — whether the injury was within the scope of the employment. (Dec. 3.)
In the course of determining that it was, the judge made the following relevant subsidiary findings of fact: Peterson had no motivation in staying at the motel other than being near his workplace and on time the next day. Peterson was engaged in no personal activities or business at the motel. (Dec. 6.) Peterson arranged for his room through the company dispatcher, which gave the employer effective notice of the business-related reason for staying. The employer would benefit from the arrangement by being assured that Peterson would be on time the next day. (Dec. 7.) The judge concluded that the reason for Peterson's staying at the motel, therefore, must be attributed to the "nature, conditions, obligations or incidents of the employment; in other words, the employment looked at in any of its aspects." Caswell's Case, 305 Mass. 500, 502 (1940). The judge determined that the injury arose out of and in the course of the employee's work as a truck driver. (Dec. 8.) The insurer appeals to the reviewing board.
The insurer argues that the employee's injury should not have been deemed compensable due to the "going and coming rule": that injuries occurring while an employee is travelling to or from a fixed place of employment are generally not compensable.Chernick's Case, 286 Mass. 168, 172 (1934). The insurer contends that the employee was, in essence, in the process of commuting when he fell in the parking lot — that he chose as a matter of his own convenience to avoid his normal long commute, and to pay for accommodations close to the terminal, in view of the expected heavy snow the next morning. The insurer is correct.
In this case, there is nothing to distinguish the employee's presence at the motel where he fell and was injured, from his presence on the roadway commuting to his fixed place of employment. An injury occurring in the latter case undeniably would be barred from compensability. See Gwaltney's Case, 355 Mass. 333, 335 (1969); Chernick's Case, supra; G.L.c. 152, § 26 (injuries compensable which arise out of and in the course of employment, "or arising out of an ordinary risk of the street while [employee is] actually engaged, with his employer's authorization, in the business affairs or undertakings of his employer"). The employee's commendable effort to assure, under the circumstances, his punctuality at work the next day cannot transform this injury into one which has occurred in furtherance of a business interest of the employer.
The employer in this case did not "impel" the employee to stay at the motel. Cf. Caron's Case, 351 Mass. 406, 409 (1966) ("[W]here 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."). The employee was not a long haul "road driver" and his employment did not require him to stay at the Howard Johnson's that night; he normally commuted home at the end of his shift. The employer did not pay for the room, nor was there any special rate at the motel for "city drivers" like the employee. Clearly there is always a "benefit" to the employer to have employees show up for work on time. Nevertheless, how an employee accomplishes that punctuality is not the concern of the employer, unless, perhaps, it takes on that role in some way, e.g. reimbursing travel costs or paying a travel stipend. Cf.Swasey's Case, 8 Mass. App. Ct. 489, 494 (1979) (per diem payment for living or travel expenses). A dispatcher's single telephone call to reserve a room, made at the employee's request — if that did occur — does not amount to the employer's assumption of that role.
The insurer correctly argues that the judge's finding on the dispatcher's actions was without evidentiary basis because the insurer's hearsay objections were sustained as to that testimony from the employee. (Tr. 19-20.) The judge's evidentiary ruling was not challenged on appeal; thus we do not address whether it was erroneous.
We see the employee's choice to stay at the motel as analogous to that of choosing between different modes of transportation for a commute or between two different routes to work. Because one might reduce commuting time by driving as opposed to taking public transportation, or by taking a shortcut over a secondary road rather than travelling over a safer divided highway, the faster option does not make the trip into an "incident of the employment" because the employer gets the "benefit" of the employee's being on time. See Hicks v. M.B.T.A., 5 Mass. Workers' Comp. Rep. 401, 403 (1991). Where, as here, the circumstances of the commute are extreme, and an employee takes extraordinary measures to assure his punctuality, the result is the same. Peterson was no more within the scope of his employment when he fell in the motel parking lot than he would have been if he had fallen going to his pick up truck in a convenience store parking lot on his way home that night. The result might have been different if the employer paid for the employee's stay at the motel. It certainly would have been different if the employer had required the employee to stay at the motel that night. SeeMaguire's Case, 16 Mass. App. Ct. 337, 341 (1983) (employer's responsibility in placing the employee in the situation of risk is key in determining compensability); Souza's Case, 316 Mass. 332, 334 (1944) (question is whether the employment brought the employee in contact with the risk). But that is not the case here.
On the facts in this record, we must reverse the decision and deny the claim. This injury did not "arise out of and in the course of the employment," and the judge's conclusion that it did was contrary to law. Cf. Grant v. Spectaguard. Inc., 9 Mass. Workers' Comp. Rep. 763, 768 (1995) (injury arose out of employment as a matter of law; denial of compensation reversed).
The decision is reversed; the claim is denied and dismissed.
So ordered.
_____________________________ Suzanne E. K. Smith Administrative Law Judge
_____________________________ William A. McCarthy Administrative Law Judge
_____________________________ Susan Maze-Rothstein Administrative Law Judge
Filed: July 15, 1997