Swasey's Case

• Decision Date: 23 October 1979
• Parties: James SWASEY'S CASE.
• Court: Appeals Court of Massachusetts

Page 884

395 N.E.2d 884

8 Mass.App.Ct. 489

James SWASEY'S CASE.

Appeals Court of Massachusetts, Suffolk.

Argued April 12, 1979.

Decided Oct. 23, 1979.

Laurence S. Locke, Boston, for employee.

David S. Tobin, Boston, for insurer.

PERRETTA, Justice.

The claimant Swasey appeals from a judgment of the Superior Court dismissing his claim for workmen's compensation benefits. The trial judge ruled that the decision of the reviewing board, which affirmed and adopted the findings and decision of the single member, was not warranted by the evidence. The decision by the single member held that Swasey's automobile accident arose out of and in the course of his employment. "On judicial review the decision of the board must be accepted as final, if supported by the evidence and not tainted by error of law." Haley's Case, 356 Mass. 678, 680, 255 N.E.2d 322, 324 (1970). We reverse the judgment of the Superior Court.

We take the facts from the evidence presented to the single member. Lehigh Design Company, Inc. (Lehigh), located in Waltham, was in the business of hiring people in the engineering profession and then assigning and dispatching them to their clients, which were companies in need of engineering services. Swasey, an engineering aide technician, interviewed with Lehigh for purposes of employment by it, and Lehigh hired him in the late summer of 1965 to work on a project for one of Lehigh's clients, International Business Machines Corporation (IBM), in Poughkeepsie, New York. During his interview with Lehigh, Swasey stated that the salary offered by Lehigh would not permit him to travel between his home in Arlington, Massachusetts, and Poughkeepsie, a distance of 200 miles each way. Lehigh told Swasey that he would also receive per diem compensation at a rate of $1.25 an hour up to a forty-hour maximum of $50 a week; he could apply that money to food and lodging in Poughkeepsie, or to travel, or to a combination of both, whichever he might choose to do. Because of this extra money, Swasey took the position with Lehigh, and he was assigned to IBM in Poughkeepsie. According to the agreement between Lehigh and IBM, Swasey was under the immediate control and direction of IBM, but in all other respects he was under Lehigh's control. Lehigh required him to file work reports describing how many hours he worked and the services he performed. He was paid by Lehigh, which made the necessary deductions for State and Federal taxes and social security benefits. Lehigh also provided him with workmen's compensation insurance, and the cost of this was included in IBM's payment to Lehigh for Swasey's services.

While working in Poughkeepsie, Swasey lived in a room which he rented by the week for $25; he cooked his meals in his room on a hotplate, and he took one meal a day at IBM, spending about $12 a week for food; he travelled to and from Arlington in his own car every weekend, leaving Poughkeepsie on Friday night. On October 29, 1965, a Friday, he returned to his room after work, prepared his time reports, did some personal chores, napped and left for Arlington at about 10:30 P.M. While he was travelling through Westfield at about 1:00 A.M. his car slammed into a tree, and he suffered a severe hip injury which kept him hospitalized until November 28, 1965, and out of work until June of 1966. At that time he was still on crutches, but he returned to work at IBM, staying until December, when Lehigh transferred him to General Dynamics in Rochester, New York. While assigned to General Dynamics he was paid by Lehigh on the same hourly and per diem basis. He would travel to Arlington only once a month due to the increased distance between his home and his work site. He left this project because his expenses began to exceed his per diem compensation, and because the pain in his hip had increased in duration and intensity, causing him mental stress which in turn resulted in a deterioration of his work performance. After leaving General Dynamics he next found work for himself with two electronic corporations in Waltham, but he was laid off from one job because he could not perform the heavier, more physically demanding labor required of him, and he voluntarily left the second job when it became apparent to him that he was not doing his share of the work. In all his jobs, Swasey's duties as an engineering aide technician involved both intellectual and physical work; he designed and assembled electronic circuits, and as the components became larger through the assembly process the construction of the units required more physical effort and agility on his part. As his pain grew worse he worked less and less, stopping altogether in 1972, when he filed his claim for compensation benefits. For the next three years he was under psychiatric and orthopedic care, and he ultimately had a prosthetic hip attached.

The single member found that the per diem money was a term of Swasey's employment contract and that he would not have taken the job without it. He further found that Swasey's job required both physical and intellectual labor, and that his pain made it difficult for him to perform his physical responsibilities and concentrate on the intellectual aspects of his work. The single member ruled that the hip injury "arose out of and in the course of" Swasey's employment and resulted in his total incapacitation for work. The reviewing board affirmed the single member's decision.

1. Workmen's compensation benefits are available to an eligible employee ¹ suffering an 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 . . . ." G.L. c. 152, § 26, as amended by St.1973, c. 855, § 1. Brigham's Case, 348 Mass. 140, 202 N.E.2d 597 (1964). Caron's Case, 351 Mass. 406, 221 N.E.2d 871 (1966). The insurer argues that because Swasey was travelling to his home for the sole purpose of visiting his family, he is precluded from receiving benefits by the "going and coming" rule, which provides that ordinarily an employee injured on the way to or from work is not entitled to compensation. ² This is because "the employment relationship is suspended from the time the employee leaves his work to go home until he resumes his work." Zenith Natl. Ins. Co. v. Workmen's Compensation Appeals Bd., 66 Cal.2d 944, 947, 59 Cal.Rptr. 622, 624, 428 P.2d 606, 608 (1967). Compare Caron's Case, supra, 351 Mass. at 409, 221 N.E.2d 871. The insurer relies upon Wormstead v. Town Manager of Saugus, 366 Mass. 659, 664, 322 N.E.2d 171, 175 (1975), for the proposition that the rule must be here applied because Swasey did not demonstrate that his "injury occurred during a period (1) for which he was being paid, (2) when he was on call, and (3) while he was engaged in activities consistent with and helpful to the accomplishment of (the functions of his employment)." Wormstead does not restrict our focus to those "factors" in reviewing the nature of Swasey's employment; indeed, it specifically holds that we must "look at the plaintiff's employment in all of its aspects," Ibid., which includes "the nature, conditions, obligations or incidents of the employment." Papanastassiou's Case, 362 Mass. 91, 93, 284 N.E.2d 598, 600 (1972). Caswell's Case, 305 Mass. 500, 502, 26 N.E.2d 328 (1940).

The evidence warranted a finding that Swasey's injury arose out of and in the course of his employment. The "going and coming" rule has no application to this case because when Swasey's employment is viewed in its entirety, his travel was of such a nature that it brings him within "that class of 'travelling workers' not barred from receiving compensation." Wormstead, supra at 667. Although Swasey's employment did not require continuous mobility, it did impel travel, and "where it appears that it was the employment which impelled the employee to make the trip, the risk of the trip is a hazard of the employment." Caron's Case, 351 Mass. at 409, 221 N.E.2d at 874. Swasey was employed by Lehigh not merely as an engineering aide, but, rather, as an engineering aide whom Lehigh, due to the very nature of its business, would assign and dispatch to distant areas, like Poughkeepsie and Rochester, to work on a specific project until completion or reassignment. It was to the benefit of Lehigh's business interests that its employees travel, and it knew that its employees did not relocate their families with each assignment but would, instead, make periodic visits home. This is obvious from Lehigh's payment of a per diem amount for purposes of living or travel expenses, whichever the employee might choose. Swasey elected to do both, and the per diem compensation was sufficient to cover the costs of his choice. Although Swasey was not injured during the hours he worked at Poughkeepsie, he was injured while engaged in an activity which constituted a critical and substantial incident of his employment for which he received compensation. Therefore, Swasey's accident could properly be found to be within the "risk of the street while actually engaged . . . in the . . . undertakings of his employer," that is, travelling from his IBM worksite (see Papanastassiou's Case, 362 Mass. at 93, 94, 284 N.E.2d 598, 600), and we will not overturn the finding of the single member. Josi's Case, 324 Mass. 415, 416, 86 N.E.2d 641 (1949). Brigham's Case, 348 Mass. at 141, 202 N.E.2d 597. Galloway's Case, 354 Mass. 427, 428, 237 N.E.2d 663 (1968).

>The insurer argues that Swasey is barred from receiving benefits because it did not receive notice of the injury "as soon as practicable after the happening thereof," nor did Swasey file his claim for benefits within one year after the occurrence of the injury, all as required by G.L. c. 152, § 41, as appearing in St.1965, c. 487, § 1. ³ However, it is well established that this notice provision is not a bar to a...