Opinion
BOARD No. 012068-91
Filed: December 30, 1996
REVIEWING BOARD DECISION
(Judges Fischel, Kirby and Wilson)
Thomas J. Flaherty, Esq., for the employee.
Mark Teehan, Esq., for the self-insurer.
The employee, a bus driver for the M.B.T.A., appeals from the administrative judge's denial of his claim for workers' compensation benefits for injuries sustained on the employer's premises. The employee was assigned to the Cabot Garage, and fell on the employer's premises while en route to the location where he was required to pick up the bus to be driven on his assigned route. Relying on Roger's Case, 318 Mass. 308 (1945), the employee argues, as a matter of law, that his injuries arose out of and in the course of his employment, and are compensable pursuant to G.L.c. 152, § 26. He maintains that the judge erred in relying on the "going and coming rule" to deny his claim. We conclude that Rogers's Case governs here.
General Laws c. 152, § 26 provides, in pertinent part that an employee is entitled to compensation if he "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 employer's authorization, in the business affairs or undertakings of his employer. . . ."
The employee claimed benefits under the provisions of G.L.c. 152, §§ 34, 13, and 30 for injuries to his left knee and back resulting from a fall on the employer's premises at the Broadway MBTA Station. His claim was denied at conference, and the employee appealed for a hearing de novo.
The parties presented oral arguments to the administrative judge and agreed to have the judge decide the case based on their joint stipulation of facts and consideration of their respective briefs. (Dec. 2.)
The parties joint stipulation of facts, which were specifically adopted by the administrative judge, are as follows:
The Employee, Matthew J. Duggan, is employed as a bus driver at the Massachusetts Bay Transportation Authority. On March 6, 1991, the employee was working thirty (30) hours per week with an average weekly wage of $463.87.
On March 6, 1991, Mr. Duggan was working a swing shift. This required the Employee to work three (3) hours in the morning and three (3) hours in the afternoon. The Employee was assigned to the Cabot Garage located on Dorchester Avenue in South Boston. The Employee does not punch a time clock when he arives and departs his place of employment but is required to sign in and out.
On the date of the injury March 6, 1991, at approximately 6:00 a.m., the Employee parked his personal vehicle at the Cabot Garage parking lot. The Employee was scheduled to begin his shift at 6:45 a.m. Mr. Duggan completed the morning portion of his swing shift at approximately 10:16 a.m. and departed the parking lot. He was not due back to work until approximately 4:59 p.m. At approximately 4:35 p.m. on March 6, 1991, Mr. Duggan parked his personal vehicle at the Cabot Garage. The Cabot Garage is the location where Mr. Duggan would return the MBTA bus at the conclusion of his afternoon swing shift. The employee was assigned and required to pick up his bus at Kenmore Square Station to begin the Kenmore Square Station to UMASS Boston bus route.
At approximately 4:40 p.m. on March 6, 1991, the Employee departed the Cabot Garage on foot heading towards the Broadway MBTA station which is approximately 200 yards from the Cabot parking lot. At approximately 4:45 p.m., the Employee was descending the stairs at the Broadway MBTA red line station when he slipped and fell on the stairs. The Employee felt pain in his left knee and back. The Employee boarded an MBTA red line train and then took an MBTA trolley from Park Street to Kenmore Square station. Upon arrival at Kenmore Square station, the Employee immediately reported the incident to an MBTA inspector. Mr. Duggan completed his afternoon shift that evening at 7:25 p.m. and then sought treatment at the Emergency Room of New England Center in Boston.
The employee received treatment from Dr. Donaldson, a Board Certified orthopedic surgeon, at New England Medical Center and a second opinion from Dr. Ronald Kaplan, an orthopedic surgeon. In addition he received outpatient physical therapy at New England Medical Center.
(Dec. 2-3.) Following a pre-hearing conference before an administrative law judge, the parties further stipulated that the Cabot Garage in South Boston was a privately owned MBTA garage where only MBTA employees were allowed to park and was an area prohibited to the general public. (Self-insurer's brief, p. 2, Employee's brief, p. 2.) By additional stipulation the parties agreed that Duggan was required to sign in at the Cabot Garage in the morning at the first part of his split shift. (Stipulation, December 13, 1996).
The Workers' Compensation Act provides that an employee shall be paid compensation for "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. See Swasey's Case, 8 Mass. App. Ct. 489, 492-493 (1979). To establish a right to compensation, an employee must show that an "injury arose from one of those two sources of injury alternatively stated in the statute." Caron's Case, 351 Mass. 406, 408, quoting Harvey's Case, 295 Mass. 300, 303 (1936); Dow v. Intercity Homemaker Serv. Inc., 3 Mass. Workers' Comp. Rep. 136, 139-140 (1989). We look initially at the first alternative in the statute.
An injury "arises out of" employment if it can be attributed to the "nature, conditions, obligations or incidents of the employment, in other words, [to] the employment looked at in any of its aspects." Caswell's Case, 305 Mass. 500, 502 (1940). In order to be entitled to compensation, the employee need not be engaged in the actual performance of his job at the moment of injury, for it is enough if he is upon the employer's premises "occupying himself consistently with his contract of hire in some manner pertaining to or incidental to his employment." Horan's Case, 346 Mass. 128, 129 (1963); Souza's Case, 316 Mass. at 335. While on the employer's premises, an employee may be within his employment for a reasonable time before he begins work or after he stops work. Murphy v. Miettinen, 317 Mass. 633, 635 (1945); seeMorris's Case, 354 Mass. 420, 424, 425 (1968).
The employee contends that his injuries are compensable because at the time of injury he was on the employer's premises occupying himself in a manner consistent with his contract of hire and incidental to the employment. He argues that the circumstances of his injury are similar to those in Roger's Case, supra, where the Court reversed the Board's denial of compensation, and held:
In Roger's Case, 318 Mass. 308 (1945), Rogers's employer furnished a parking lot where employees were permitted to park. Rogers arrived at the employer's parking lot by automobile. After exiting the car he walked in the employer's parking lot and while going down an incline, fell and broke his ankle. Compensation was denied by the Industrial Accident Board because the employee's work duties did not require him to use an automobile to reach work, and because the furnishing of the parking lot was not part of the contract of employment. On appeal to the Supreme Judicial Court, the court noted that in Rogers's normal routine it would be necessary for him to exit the parking lot and walk a short distance down the street to the employer's plant entrance. Id. at 308-309.
These facts require as a matter of law a decree for the employee. Although the employee was not obliged to come to work in an automobile, and the employer was not obliged by contract to furnish the "parking lot," yet it is plain that it did furnish the lot as an incident of the employment, and that the employee, while actually on his employer's premises and on his way to the place where his day's work was to be performed by a route which he was permitted and expected to take, fell and was injured. It is of no consequence that a street intervened between the part of the employer's premises where the employee fell and the part where he was to work . . . The injury arose out of and in the course of the employment.
Id. at 309, (citations omitted). Duggan argues that the facts of his case are governed by Roger's Case, supra. Duggan's employer furnished a private parking lot exclusively for the use of MBTA employees at the Cabot Street Garage. While Duggan was not required to drive to work or park in the Cabot Garage, and the employer was not obligated to provide a parking facility solely for the use of MBTA workers, the employer did in fact furnish the lot and as such it became an "incident of employment" and not merely a "perk". Id. at 309; see Sylvia's Case, 217 Mass. 27, 28 (1937); Donavan's Case, 217 Mass. 76, 77-78 (1914).
Duggan employed a route which he was permitted to take, departing on foot from the Cabot Garage and heading for the Broadway MBTA station nearby. See Id; Mahan's Case, 350 Mass. 758, 777 (1966). While not engaged in the actual performance of his work at the time of injury, it is enough that the employee was on the employer's premises "occupying" himself consistently with his contract of hire in a manner "pertaining to . . . his employment" while traveling to pick up his bus shortly before his shift was to begin. Horan's Case, 346 Mass. 128, 129 (1963); see Canavan's Case, 364 Mass. 762, 765 (1974). Although the general public also had access to the stairway at the Broadway Station where the employee fell, that fact is not dispositive where the employee was on premises controlled by the employer, traveling from the employer's parking lot where he was to return at the end of the shift in accordance with the employment. Lee v. Pelletier, 20 Mass. App. Ct. 915, 916 (1985); see Mahan's Case, 350 Mass. at 777.
We agree that these factors in Duggan's case are similar to the facts that the Court focused upon in Rogers's Case, supra, and in the above cited cases. We note as well that:
1. Duggan "was assigned to the Cabot Garage." (Dec. 2.)
2. His employer required him to sign in at "his place of employment." (Dec. 2.)
3. He was required to sign in at the Cabot Garage in the morning. (Stipulation, December 13, 1996)
4. The judge found that after signing in at the Cabot Garage, Duggan was "required to pick up his bus at Kenmore Square Station." (Dec. 3.)
5. Cabot Garage is the location where Duggan would return the bus at the conclusion of his afternoon shift. (Dec. 3.)
At the time of Duggan's injury he was on the employer's premises occupying himself in a manner consistent with his contract of hire, and incidental to the employment. See Rogers's Case, supra. We find that here, as in Rogers's Case, supra, "the facts require as a matter of law a decree for the employee." Id. at 309. "The injury arose out of and in the course of the employment."Id.
We reject the insurer's argument that Hicks v. Massachusetts Bay Transp. Auth., 5 Mass. Workers' Comp. Rep. 401 (1991) controls. See Andrade v. Mass. Bay Transp. Auth., 3 Mass. Workers' Comp. Rep. 232 (1989). This case is factually distinguishable from those cases, where the employees, fare collectors, had a fixed place of employment. Both were injured while merely commuting to or from work and thus were precluded from compensation by the "going and coming rule." The fact that the employee received a free pass from the MBTA did not make travel an incident of employment. Hicks, supra, at 403-404. (See discussion of "premises" and "property" of MBTA when employee not in course of employment but in course of commute). Duggan, however, did not have a fixed place of employment. He was required to report to two locations, the Cabot Garage, and the Kenmore Square station. He did not remain in a fixed place, but drove a bus route, and was required to pick up, drive, and return the bus in different locations.
Because Duggan has established, as a matter of law, that the injury arose out of and in the course of his employment, we but briefly address the employee's alternative argument. The facts here, the employee says, compel a finding in his favor under the second clause of § 26, that his injury was compensable due to its "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." § 26.
The test is whether the employment or something else (e.g., a commute) sent the employee on the journey. Mandell's Case, 322 Mass. 328, 331 (1948). If the former, the risk of the journey is a hazard of the employment. Id. In the case before us, it was the employment that impelled the employee's trip to pick up the bus away from his assigned location. The employee was required to travel as an obligation of employment between two different locations, to sign in at the Cabot Garage, pick up his bus at Kenmore Station, and then to return it to the Cabot Garage at the end of the shift. Thus the risk of the trip between Cabot Garage and Kenmore was a hazard of the employment when the employee was on the route permitted or expected to be taken. See Maguire's Case, 16 Mass. App. Ct. 337, 339-340 (1983).
For the foregoing reasons, we reverse the decision of the administrative judge and find that as a matter of law the injury arose out of and in the course of the employment. We remand the case for consideration of the employee's claims and assessment of entitlement to benefits under G.L.c. 152, §§ 34, 13, and 30. Since the judge who heard this matter no longer serves the department, we refer the case to the senior Judge for assignment.
So ordered.
_________________________ Carolynn N. Fischel Administrative Law Judge
_________________________ Edward P. Kirby Administrative Law Judge
_________________________ Sara Holmes Wilson Administrative Law Judge Filed: December 30, 1996