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Massachusetts Review Board Upholds Compensation Award to Injured Employee, Rejects Insurer’s Argument That “Going and Coming” Rule Applied

In a recent case before the Massachusetts Department of Industrial Accidents, Review Board, the issue was whether the “going and coming” rule applied, such that an injured employee was barred from receiving compensation.  In this case, the Board turned to precedent to determine liability. The issue was whether the employee was due compensation for her injuries sustained while traveling by vehicle to her permanent home.

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The employee in this case was a nurse, 71 years old at the time of the hearing regarding her claim for compensation.  At the time of her injury, the employee had been working as a psychiatric nurse for her employer, who assigned her to work at a mental health facility in Vermont.  The employee worked a night shift and traveled from her home in Danvers to her job in Vermont at the beginning of the week, returning home after five days.

The employee believed that she received per diem expenses for lodging, meals, and incidentals, but she had never calculated the amount. She also testified that she did not ask for travel reimbursement because the employment policy was not “too clear” to her. According to the employer, their program placed nurses and professionals in patient care assignments throughout the nation.

While finishing her final shift of a five-day workweek, the employee had been driving home when she was involved in a car accident.  She suffered injuries requiring a number of surgeries.  Weeks after the incident, she awoke in a rehabilitation facility and did not remember the accident.

A § 10A conference took place, and the judge ordered that the insurer pay the employee § 34 benefits, as well as §§ 13 and 30 benefits.  After the insurer appealed, the only issue before the judge was liability, and whether the employee was barred from compensation by the “going and coming” rule.

The judge considered witness testimony and the employment contract and found there was no clear evidence concerning the agreement between the parties.  The judge found the facts similar to a case in which employment was viewed in its entirety, such that traveling workers must not be barred from receiving compensation. Here, the judge had found that the employee’s travel brought her within that group of traveling workers who should not be barred from securing compensation.

According to the Board, the “going and coming” rule prevents an employee from recovering for those injuries sustained while traveling to and from work.  In this case, the workers’ compensation insurer argued that since the employee had a fixed place of business, and the parties had agreed she would remain there until the assignment was completed, she was merely commuting. Turning to precedent, the Board stated that in other cases with factually similar situations, the employees suffered compensable injuries.

The employer argued that they did not know the employee traveled home on weekends, and the per diem was only to be paid for days she remained in her temporary home near work.  The judge stated she could not ascertain the terms of the agreement between the employer and the employee regarding payment of the per diem.  Regardless of the difference in rationale for payment, the per diem was offered so that the employee could work at a distance from her permanent home.  Here, since employment required travel, the risk posed in the trip was a hazard of employment.

The court rejected the argument that the employee was required to notify the employer that she was traveling. Additionally, the court stated that even if the employee was required to notify the employer but failed to do so, this would not bar her entitlement to compensation for her injuries.  The employee had not engaged in willful misconduct or intentionally violated a clearly communicated rule, which would be a bar to compensation.

The Massachusetts attorneys at Pulgini & Norton offer dedicated legal representation to individuals pursuing workers’ compensation benefits for injuries suffered at work.  To schedule a free consultation with a skilled attorney, call our office at (781) 843-2200 or contact us online.  We are here to help you assert your rights according to the law.

More Blog Posts:

Massachusetts Court Holds Workers’ Compensation Law Provides for Interest from Filing Date of Claim Ultimately Resulting in Award of Benefits, Massachusetts Workers’ Compensation Lawyer Blog, May 11, 2017

Massachusetts Reviewing Board Holds that Judge Had Not Based Finding on Specific Facts Regarding Employee’s Repetitive Lifting and Weight, Massachusetts Workers’ Compensation Lawyer Blog, February 9, 2017

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