Workers’ Compensation & the Traveling Employee

The Massachusetts workers’ compensation statute provides that if an employee “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,” he shall be paid by the employer’s insurer. In this context, “where the employee has fixed hours of work and a fixed place of employment, injuries going to and from work do not arise in the course of employment unless the employee is on the employer’s premises.” However, this “going and coming” rule has little, if any, application to trips made to and from the central place of work during periods when an employee is either working or on call, such as a police officer or paramedic. Likewise, “traveling employees” who have no single, fixed place of business are also generally exempt from the “going and coming” rule.

The Case of a Car Accident

In one recent case before the Massachusetts Industrial Accident Board (IAB), a nurse who lived in Danvers was assigned by her employer to work at a health facility in Vermont for a four month period. She worked five days a week on the night shift and received a per diem allowance to cover housing, meals and incidental expenses which the employer paid for seven days per week. Each weekend the employee returned to her home in Massachusetts. On one such trip she was involved in a serious car accident in which she sustained severe personal injuries and filed for workers’ compensation benefits. The insurer appealed the order to pay benefits arguing that the accident happened during her commute such that the “going and coming” rule barred the employee from receiving compensation. The insurer contended that the claimant was an employee whose temporary employment location constituted a fixed place of employment from which she commuted on the weekend.

In upholding the order awarding compensation benefits, the IAB found that when the nurse’s employment was viewed in its entirety, the travel was of such a nature that it brought her within the class of “traveling workers” not barred from receiving compensation. The Board reasoned that it was in the “nature of its business” for the employer to “assign and dispatch employees to distant areas to work on a specific project until completion” and “it was to the benefit of the employer’s business that its employees travel.” The Board noted that “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.” The Board concluded that the employee was injured while engaged in an activity which constituted a critical and substantial incident of her employment such that the accident could properly be found to be within the “risk of the street” while actually engaged in the undertakings of her employer, entitling her to workers’ compensation benefits.


Free Consultation

If you or a loved one were injured because of someone’s negligence, contact Attorney Allison now for a free consultation by calling 978-740-9433 or filling out our free consultation form. We look forward to talking to you about your claim.