Auto AccidentMassachusetts Review Board Affirms Decision in Favor of Employee Traveling Home, Holds “Going and Coming” Rule Does Not Bar Compensation

June 7, 20170

The Massachusetts Department of Industrial Accidents, Review Board, recently analyzed whether an employee could receive workers’ compensation for injuries sustained while driving home from a nursing job.  According to the “going and coming” rule, employees who are traveling to and from work are barred from recovering compensation for their injuries.  In the case before the Board, the workers’ compensation insurance company argued that the employee had a fixed place of business, and she had been merely commuting home.The Board turned to caselaw to determine whether the facts supported a finding that the employee could recover benefits.  In this case, the 71-year-old employee worked as a nurse of the employer.  The employer assigned her to work at a facility in Vermont, while the employee lived in Danvers.  She would travel to Vermont at the start of the work week and return home after her shift ended, five days later.


While returning home at the end of her shift, the employee suffered injuries in a car accident.  She underwent multiple surgeries and, weeks later, awoke in a rehabilitation facility. Eventually, she was discharged from the hospital with a walker and with assistance from medical professionals.

According to the employee’s contract, she would receive, in addition to her salary, per diem costs for lodging and meals.  However, since the policy was not clear to her, the employee stated that she did not request a travel reimbursement.  She had been paid a per diem for seven days a week, although the employer knew she only worked five days per week.  The employee did not give notice to her employer when she traveled home on her days off, since she was not under the impression that she was required to inform them.

After a § 10A conference, the employer was ordered to pay benefits to the employee (§ 34 and §§ 13 and 30).  On appeal, the issue before the judge was whether the going and coming rule barred the employee from receiving compensation.  The judge determined that the employment contract and the witness testimony failed to indicate what the agreement had been between the parties.

Turning to case law, the judge stated that when looking at the injured employee’s employment, in its entirety, her travel brought her within the class of traveling workers who are not barred from receiving compensation.  The judge also stated that it was in the “nature of its business” for the employer in this case to assign and send employees to distant work areas to complete projects.  Similar to other cases, the employer’s business benefited when employees traveled.  The judge held that the insurer was liable for the employee’s injuries.

The Board stated that the “going and coming” rule bars employees from compensation for injuries sustained when traveling to and from their place of employment.  The rule does not apply, however, when traveling employees are injured.  The Board rejected the insurer’s contention that the employee had a fixed place of employment and was commuting home.  Additionally, the Board stated that simply because an employee may be deemed a “traveler” according to IRS guidelines does not indicate that the employee is a “traveling employee” for the purposes of workers’ compensation benefits eligibility.

In rejecting the employer’s argument that the employment contract required notice of travel, the Board stated that violating an employer’s rule would not bar receipt of compensation, unless that rule was clearly communicated and enforced by the employer.  In this case, the employee believed she did not need to notify her employer of her traveling situation.

The Board affirmed the decision in favor of the injured employee.

At the Law Offices of Attorney Michael O. Smith, injured employees receive skilled legal representation as they pursue a claim for compensation for workplace-related injuries. If you have suffered injuries in a job site accident, you may be eligible for compensation, both for your lost wages from work and for your injuries.  For a free consultation with an experienced Boston workers’ compensation attorney, contact our office.  We can be reached at (617) 263-0060.

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