The “going-and-coming” rule did not apply to bar the workers’ compensation claim of a nurse who sustained serious injuries in an accident that occurred when she was driving home for the weekend during the course of a temporary job assignment in Vermont, a Massachusetts Department of Industrial Accidents Reviewing Board panel has found.
The rule generally bars compensation for injuries suffered in the course of an employee traveling to and from a fixed place of employment.
The insurer argued that the claimant, Valerie Hatch, had a fixed place of employment during the entirety of her three-month job assignment in Vermont. Accordingly, the insurer contended that the employee fell within the scope of the rule because she was merely commuting to her home in Massachusetts at the time of the accident.
But the three-member review panel found the case indistinguishable from the 1979 decision by the Appeals Court in Swasey’s Case, which addressed the “traveling employee” exception to the rule. Specifically, the panel credited the administrative judge’s reliance on Swasey to find that the claimant’s employment, when “viewed in its entirety,” brought her within the class of traveling workers not barred from receiving compensation.
“It was in the ‘nature of its business’ for the employer in Swasey and the employer here to ‘assign and dispatch [employees] to distant areas to work on a specific project until completion,’” Administrative Law Judge Carol Calliotte wrote for the panel. “And, as in Swasey, it was to the benefit of the employer’s business that its employees travel.”
Case on point
The claimant was represented by Michael K. Landman of Boston. Landman said his client’s case was an “identical match” to Swasey’s Case.
“It wasn’t like [my client] was going from her home to her office and back,” he said. “She was expected to travel as part of being an employee of this medical [staffing] outfit. She had no fixed place of employment.”
Calling Hatch an “excellent” decision applied to a unique set of facts, Taunton workers’ compensation attorney James K. Meehan said he did not see how the claimant could be categorized as anything but a “traveling” employee.
“Traditionally, the going-and-coming rule applies mostly to commuters, but traveling workers are covered [by workers’ compensation],” he said.
Deborah G. Kohl, chair of the Massachusetts Bar Association’s Workers’ Compensation Law Section, said she also saw Hatch as a traveling employee case, not a going-and-coming case.
“The coming-and-going rule is really for commuting purposes, and this woman really wasn’t commuting,” Kohl said. “She was assigned to a job in another state. When she went home, she was clearly a ‘traveler’ at that point, not a ‘commuter.’”
Worcester workers’ compensation attorney Jane Eden saw ambiguity in the language and application of the claimant’s employment contract as hindering the insurer’s attempt to have the going-and-coming rule applied in the case.
But Eden added that public policy considerations might weigh against giving effect to more explicit contractual restrictions on travel for someone employed in similar circumstances.
“You always need to keep in mind that the workers’ compensation law, because it is an exclusive remedy, is meant to compensate the employee in as many situations as it can,” she said.
Noting that the going-and-coming rule is one of the more fact-dependent doctrines, Alan S. Pierce of Salem said Hatch is a sound decision under existing case law.
“There are so many exceptions to the going-and-coming rule, and this [case] is yet another one,” Pierce said. “The wrinkle here is that it involved a three-month assignment out-of-state, so the going-and-coming rule butts up against the traveling employee rule.”
Boston attorney Michael T. Henry represented the insurer in the appeal before the board. He declined to comment.
The insurer argued that the claimant had a fixed place of employment during the entirety of her three-month job assignment in Vermont.
The claimant lived in Danvers, Massachusetts, at the time of her accident on June 24, 2013. A psychiatric nurse for Supplemental Health Care Services, a medical staffing agency, she was assigned to work at Brattleboro Retreat, a mental health facility in Vermont, from May 25 through Aug. 24, 2013.
During her time in Brattleboro, the claimant worked five days a week on the 11 p.m. to 7:30 a.m. shift. At the beginning of her work week, she would drive from her home in Danvers to Brattleboro.
According to the claimant, her understanding was that SHCS paid her food and lodging for only five days a week. Thus, she would book a hotel for five nights in Brattleboro and drive home to Danvers at the end of her work week to avoid having to pay expenses out of pocket.
The claimant acknowledged that she did not notify SHCS when she went home to Massachusetts on her days off, but also asserted that she did not believe she was required to do so.
The senior marketing manager for SHCS would later testify that the company employs local contractors who receive a straight hourly pay, and so-called “travelers” who qualify for a tax-free per diem for meals and lodging if they meet the criteria for a “traveler” under the IRS guidelines.
According to the marketing manager, contractors like the claimant were assumed to remain on location during the contract period and paid $123 per diem seven days a week for food and lodging. The marketing manager clarified that there were exceptions for those who notified SHCS that they were traveling home on their days off.
However, according to the marketing manager, because the claimant never indicated she was returning to her home in Danvers, she was paid her per diem for seven days each week.
On June 24, 2013, the claimant immediately left for home after working the last night shift of her work week. On the way home, she was involved in a serious car accident and suffered injuries that required a number of surgeries.
An administrative judge ordered the insurer to pay the claimant §34 total incapacity benefits from the date of the accident as well as §§13 and 30 medical benefits.
The insurer appealed only on the issue of liability, asserting the going-and-coming rule applied to bar the claimant from receiving compensation. An administrative judge denied the insurer’s appeal, finding the case controlled by Swasey.
Traveling employee exception
Swasey involved an engineering aide technician who was assigned by his Massachusetts employer to work on a project in Poughkeepsie, New York. Although paid a per diem for food and lodging, the employee returned to his home in Massachusetts every weekend, and was seriously injured while driving home at the end of his work week.
The Appeals Court in Swasey rejected the insurer’s argument that the going-and-coming rule precluded the employee from receiving benefits because he was injured in the course of traveling home for the sole purpose of being with his family.
The insurer in Hatch argued that the claimant did not qualify as a traveling employee within the meaning of Swasey because she had a fixed place of employment in Vermont pursuant to the terms of her employment.
In particular, the insurer argued that the claimant’s employment contract required her to provide notice when she was traveling home so the employer could cancel the $123 per diem payment for those days. In addition, the insurer pointed to an IRS requirement for the claimant to declare Brattleboro, Vermont, as her temporary residence in order to receive her per diem payments without deduction for taxes.
But Administrative Law Judge Calliotte recognized that the determination of whether an employee is a “traveler” under IRS guidelines does not control whether she is a “traveling employee” for purposes of workers’ compensation eligibility.
While Calliotte also acknowledged there was ambiguity as to the terms of the claimant’s employment contract relating to per diem payments, the judge found no reason to distinguish Swasey on that basis.
“[W]hether, as the employee understood, her per diem was limited to the five days a week she worked, or, as [the marketing manager] testified, it was based on the number of days she remained at her temporary residence, or it was simply paid for seven days per week, we do not see a meaningful difference in the rationale for payment,” Calliotte wrote. “As in Swasey, the per diem was paid to allow the employee to work at a distance from her permanent home, which was not only a clear benefit to the employer’s business, but a necessity to its operation.”
Further, Calliotte concluded that the claimant would not be barred from receiving compensation even accepting the insurer’s argument that her employment contract required her to provide notice before traveling home. The judge noted the general rule that the violation of an employer rule will not bar payment of benefits unless the violation is intentional and the rule has been clearly communicated and enforced by the employer.
“Here, the [administrative] judge credited the employee’s testimony that she believed she was not required to notify the employer, and that there were no conditions placed on her returning to her home in Massachusetts,” Calliotte wrote. “In addition, the judge permissibly found the contract itself unclear and the employer’s actions inconsistent with it.”