Case of Haslam's

• Citation: 451 Mass. 101,883 N.E.2d 949
• Decision Date: 08 April 2008
• Docket Number: SJC-09915.
• Parties: Michael HASLAM'S CASE.
• Court: United States State Supreme Judicial Court of Massachusetts

883 N.E.2d 949

451 Mass. 101

Michael HASLAM'S CASE.

SJC-09915.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued December 3, 2007.

Decided April 8, 2008.

Shawn F. Mullen for the insurer.

Paul M. Moretti, Boston, for the employee.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.

MARSHALL, C.J.

We transferred this case from the Appeals Court on our own motion to decide whether injuries sustained by Michael Haslam (employee) in a one-car accident while he was driving home after working for twenty-seven hours without sleep are compensable under the workers' compensation act, G.L. c. 152, § 26.¹ In Chernick's Case, 286 Mass. 168, 172, 189 N.E. 800 (1934), this court held that compensation for an injury arising out of and in the course of employment "does not extend to cover employees going to and coming from their work," colloquially referred to as the "going and coming" rule. See Wormstead v. Town Manager of Saugus, 366 Mass. 659, 666, 322 N.E.2d 171 (1975). In this case, an administrative judge of the Department of Industrial Accidents concluded that, while the accident occurred during the employee's commute home, the employee's injuries were compensable because the employee's "utter exhaustion due to work-caused sleep deprivation" resulted in the accident. A divided reviewing board affirmed. The insurer, National Union Fire Insurance Company (insurer), appealed. We conclude that the employee's injuries are not compensable because the employer did not require the employee to work beyond his regular, far shorter, shift. We reverse the decision of the reviewing board.

1. Background. We summarize the pertinent evidence. See Papanastassiou's Case, 362 Mass. 91, 92, 284 N.E.2d 598 (1972). The employee began working at 5 A.M. on August 3, 2001, the day before the accident. He was a foreman who supervised a crew of carpenters building forms for road supports for the "Big Dig" central artery project in Boston.² That day the project was delayed for various reasons, and the pouring of concrete into the forms did not begin until 1 A.M., twenty hours after the employee had begun his shift. The employee testified that the day shift, for which he had been scheduled, ended at 3:30 P.M., and that he was not scheduled to work over night. He remained on the job, he said, because "a carpenter has to be there while the concrete's being poured, to the finish.... I had to be there. There was nobody else there to finish what I was doing until about 8 [A.M.]" As a result, he said, "I sucked it up and drove on because if I didn't finish it I probably wouldn't have had a job."

The construction crew supervisor on duty that night, David Arruda, "corroborated" the employee, in the administrative judge's words, that a carpenter was required to be present during concrete pours. The supervisor testified, however, that if he was told that "somebody was tired, you know, there's a slew of people ... a few different people from the carpenters' end if there is a problem that [the supervisors] can fall back on, so I could make the phone calls to get more personnel out there."³ Arruda testified that the employee did not ask for assistance during the night. When the employee was asked at the hearing, "[D]id anybody tell you had to stay that length of time?" he answered unequivocally, "No."⁴ The administrative judge found that, under his union's contract with his employer, the employee could not be required to work overtime.

It is undisputed that, before he headed home on August 4, the employee had worked for approximately twenty-seven hours without sleep.⁵ When he left the worksite at 8:15 A.M., he felt, in his words, "totally exhausted." He fell asleep after driving for thirty minutes, crashed into a utility pole, and was injured.⁶

On October 16, 2001, the employee filed a claim for benefits for a compensable injury. On January 14, 2002, the claim went before an administrative judge for a conference pursuant to G.L. c. 152, § 10A (1).⁷ The administrative judge ruled that the injury was compensable and issued an order requiring the insurer to pay benefits to the employee, including temporary total incapacity benefits pursuant to G.L. c. 152, § 34, partial incapacity benefits pursuant to G.L. c. 152, § 35, and medical benefits pursuant to G.L. c. 152, § 30. Both parties sought a hearing pursuant to G.L. c. 152, § 10A (3).⁸ At the hearing on September 24, 2002, before the same administrative judge, the employee challenged the amount and scope of the award.⁹ The insurer challenged the rulings as to liability, incapacity, entitlement to medical benefits, causal relationship, and average weekly wage, and sought recoupment of monies paid pursuant to the conference order.

In his decision of March 8, 2004, the administrative judge concluded that the employee's injuries were compensable¹⁰ because "the physical state that caused the accident arose directly out of and had presented itself while [the employee] was still on the job," and that his "utter exhaustion, due to work-caused sleep deprivation, clearly arose out of and in the course of his employment."¹¹ In his subsidiary findings of fact, he found that the employee continued working because, in the administrative judge's words, the employee "wanted to get out of the overtime," but was "sucking it up" because "the job had to be done and because he felt there would be repercussions up to the possible loss of his job if the work was not completed on schedule." The administrative judge made no subsidiary (or other) findings concerning the supervisor's testimony that he could have brought other employees onto the night shift, and that the employee did not ask for assistance.¹² See note 3, supra. He made no express finding whether the employee was compelled to work beyond his regular shift.¹³

The insurer appealed from the decision to the reviewing board pursuant to G.L. c. 152, § 11C.¹⁴ A divided panel of the reviewing board affirmed the decision.¹⁵ Two administrative law judges agreed, for different reasons, that the employee's injuries were compensable. One concluded that the employee's exhaustion arose out of and in the course of his employment because the employee was "`impelled by his employment' to continue working until the concrete pour was finished, 27 hours after his shift began."<sup>16</sup> She noted that the employee was "not ordered to work overtime," but reasoned that his injuries were compensable because "the employee felt obligated to stay until the [concrete] pour was completed." Citing Hicks's Case, 62 Mass.App.Ct. 755, 764, 820 N.E.2d 826 (2005), she concluded that the supervisor had "impliedly authorized" the employee's overtime by allowing him to continue to work, by paying him for the overtime, and by "not providing any relief to the employee. See note 20, infra. A second member of the reviewing board, citing Zerofski's Case, 385 Mass. 590, 594, 433 N.E.2d 869 (1982), concluded that the injuries arose out of and in the course of employment because there was a "direct cause between the employee's work, his diminished capacity to safely operate his automobile, and his resulting injuries and disability." The dissenting member of the reviewing board reasoned that the injuries were not compensable because they did not arise out of and in the course of employment where there was no evidence that the employee was "required or requested" to remain at work beyond the usual end of his shift and because "work-related fatigue is not the kind of `harm' which our courts have construed as either constituting, or giving rise to, a compensable injury."

2. Standard of review. Pursuant to G.L. c. 152, § 12(2), we review a decision of the reviewing board under the standards of the Administrative Procedure Act, G.L. c. 30A, § 14(7) (a)-(d), (f), and (g). We may set aside or modify the decision of the reviewing board if the decision is, among other things, "[b]ased on an error of law," "[m]ade upon unlawful procedure," or "[a]rbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law." G.L. c. 30A, § 14(7) (c), (d), (g). See Robinson's Case, 416 Mass. 454, 455-457, 623 N.E.2d 478 (1993).

3. Fatigue "arising out of and in the course of" employment. The employee does not take issue with the "going and coming" rule, see L.Y. Nason, C.W. Koziol, & R.A. Wall, Workers' Compensation § 12.4 (3d ed. 2003) (Nason, Koziol, & Wall), but argues that where the medical evidence established "a clear causal link between the employment activity and the injury," the employee's injuries were "directly attributable to the workplace and arose out of the employment" and the "going and coming" rule does not apply in his case. Uncontradicted evidence before the administrative judge supported his finding that the employee fell asleep at the wheel as a result of working for twenty-seven hours without sleep. The insurer does not challenge that finding,¹⁷ but argues that the employee's injuries are nevertheless not compensable because, among other reasons, the employee, injured while traveling home from work, was not required to stay beyond his scheduled shift: in the words of the insurer, the overtime "was not compelled, overtime was not mandatory, and [the employee] testified that he could have left at anytime." See 1 A. Larson, Workers' Compensation Law § 13.01[1] (2007) (workers' compensation not intended to protect against all perils of worker's journey between home and place of employment). We agree with the insurer.

The employee points to cases from other jurisdictions where injuries sustained during travel from work have been deemed "employment-related," and therefore compensable because the travel home was made more hazardous by an employer's "extraordinary demands" for overtime work by the employee.¹⁸ Van Devander v. Heller Elec. Co., 405 F.2d 1108, 1110 (D.C.Cir.1968) (compensating employee pursuant to Federal Longshoremen's and Harbor Workers' Act, ...