OCCEAN v. M.B.T.A., No. 06786491 (Mar. 28, 1996)

Oreste Occean, Employee v. M.B.T.A., Employer, Commonwealth of Massachusetts, Self-Insurer

BOARD Nos. 06786491, 04258592Commonwealth of Massachusetts Department of Industrial Accidents
Filed: March 28, 1996

REVIEWING BOARD DECISION
(Judges Fischel, McCarthy and Wilson)

APPEARANCES

Steven R. Whitman, Esq., for the employee

John C. White, Esq., for the self-insurer

FISCHEL, J.

The employee appeals from the decision which found him to be not in the course of his employment when he sustained injuries while on his way to work. Finding no error, we affirm the judge’s decision.

The employee, a bus driver, sustained back injuries on December 19, 1991, when the bus in which he was a passenger was struck by a truck, causing him to fall into the fare box. (Dec. 4). The judge found that at the time of the accident, at 3:20 p.m., the employee was between work shifts, and in preparation for his next shift had driven to the Charlestown bus garage, parked his car, and boarded a bus to Central Square, with the intention of riding the red line to Harvard Square to begin his 4:00 p.m. shift. (Dec. 3) The judge found that at the time of the injury the employee was dressed in his bus driver uniform, and that immediately after the accident, at the request of the bus driver, the employee assisted the driver of the bus in contacting M.B.T.A. authorities, transferring passengers to another bus and driving the disabled bus to a parking area. (Dec. 4) He then rode the train to Harvard Square where he began his regularly scheduled shift. (Dec. 3-4).

As a result of physical injuries sustained that day, the employee filed a claim for temporary total incapacity benefits which the self-insurer resisted. Following a conference the self-insurer was ordered to pay § 34 benefits from December 19, 1991 to April 14, 1992. The self-insurer appealed the conference order and a hearing de novo was held in front of the same administrative judge.

By agreement of the parties the hearing was bifurcated to initially determine whether or not the employee’s injury arose out of and in the course of his employment. (Dec. 4). On April 26, 1994 the administrative judge issued a decision wherein he found that the M.B.T.A. permitted their employees to ride on the system for free, and that at the time of the accident the employee “was nothing more, nothing less, than a passenger.” (Dec. 6) He found that the employee’s “commute, while provided free by the Employer, was not an incident of his employment.”(Dec. 6) See c. 152, § 26. The judge concluded that the “going to or coming from” work rule applied, and the employee was not in the course of his employment when injured and his injury was not compensable under the Act. The employee appeals to us from that decision.

In his appeal the employee argues that the employer, a self-insurer, should be estopped from denying that the injury was work related, in view of the employer’s asserting the exclusiveness of worker’s compensation as the employee’s remedy for the injury as a defense against a tort action for the subject injury.[1] He further notes that the M.B.T.A. asserted a lien under c. 152, § 15[2] instead of pursuing recoupment under c. 152, § 11D(3),[3] thereby exercising the rights of an self-insured employer who has paid compensation for a compensable injury.[4] The employee maintains that the M.B.T.A.’s actions have denied the employee any forum to redress his injury, and that the doctrine of equitable estoppel should be applied here, as it has long been done to avoid inequitable results. See Boston Albany R.R. v. Reardon, 226 Mass. 286 (1917).

We don’t think the doctrine of equitable estoppel applies on these facts, where the pleadings submitted are not findings on the merits. The employee may wish to address these matters to the court where the civil action was begun.[5]

The administrative judge analyzed this case under principles relating to injuries sustained while going to or coming from work. The law relating to the ordinary commute to work provides that, unless other circumstances prevail, where an employee has fixed hours of work in a fixed place of employment, injuries sustained while going to and coming from work do not arise in and out of the course of employment. See Smith’s Case,326 Mass. 160 (1950); Collier’s Case, 331 Mass. 374 (1954). There are many exceptions to this general rule, depending upon the particular circumstances of the case. See Locke c. 12 §§ 263-265.

Compensability has been found where injuries en route to or from work occur on the employer’s property, Gwaltney’s Case,355 Mass. 333 (1969), or adjacent private premises. Mahan’s Case,350 Mass. 777 (1966). Where an employee is engaged in travel as part of his or her work, or traveling to or from a place of work where the use of the vehicles is in some way an incident of the employment, injuries as a result of “an ordinary risk of the street while traveling may be found to be within the course of employment.Caron’s Case, 351 Mass. 406 (1966); Dow v. IntercityHomemaker Service, Inc., 3 Mass. Workers’ Comp. Rep. 136 (1989);Swasey’s Case, 8 Mass. App. Ct. 489 (1979); Scaltreto v. ForeignAuto Parts, 9 Mass. Workers’ Comp. Rep. ___ (August 23, 1995). See G.L.c. 152, § 26.[6] Where the injury occurs on transportation provided by the employer, the courts look to “. . . whether the conveyance has been provided by him after the real beginning of the employment, in compliance with one of the implied or express terms of the contract of employment, for the mere use of the employees, and is one which the employees are required, or as a matter of right are permitted, to use by virtue of that contract.”Donovan’s Case, 217 Mass. 76, 78 (1914).

This case presents a factual pattern in which an M.B.T.A. employee sustains injuries while traveling in a motor vehicle prior to an anticipated work shift. This board has addressed before the interplay of § 26 and the pre-work travel of an M.B.T.A. employee. Compensation has been awarded where the M.B.T.A. employee’s travel was prompted by an overtime policy which benefited the employer. See Hoffman v. M.B.T.A.,
8 Mass. Workers’ Comp. Rep. 1 (1994).[7] Compensation has been denied where the employee was deemed a passenger whose injury while traveling was that of any commuter, and travel was not an incident of employment. Hicks v. M.B.T.A.,
5 Mass. Workers’ Comp. Rep. 401 (1991).[8]

Here the administrative judge considered the facts and concluded that the employee was excluded from compensation when riding as a passenger on the employer’s bus as a means of getting to work. He made no findings to indicate that such travel advanced the “business affairs or undertakings of his employer”. We agree with the self-insurer that the decision in Hicks v.M.B.T.A., supra, governs these facts. We find no error in the decision and therefore affirm.

So ordered.

________________________ Carolynn N. Fischel Administrative Law Judge
________________________ William A. McCarthy Administrative Law Judge
________________________ Sara Holmes Wilson Administrative Law Judge

Filed: March 28, 1996

[1] According to the employee, in a memorandum submitted to the administrative judge during the pendency of the workers’ compensation proceedings, and included in his brief on review, he filed a complaint in Suffolk Superior Court, Docket #92-4151, against the owner of the truck which struck the bus, as well as against the M.B.T.A. The employee appends to his brief the Motion for Summary Judgment with supporting Memorandum, filed in that action by the M.B.T.A., in which the M.B.T.A. argued that the tort claim was barred because “. . . Occean’s exclusive remedy for injuries sustained was the Workers’ Compensation Act.” (employee’s brief, p. 3, Mem. in Supp. Summ. J. Motion, 5). The employee points to the M.B.T.A. representation in said motion that the M.B.T.A. had paid benefits pursuant to § 34 of the Act, without disclosing that the benefits were paid pursuant to a judicial order which was under appeal, and that the M.B.T.A.’s defense in our forum was that the injuries were not incurred in the course of employment and thus were not compensable under c. 152. (employee’s brief, p. 3) According to the employee, the tort action against the M.B.T.A. was dropped when the M.B.T.A. asserted the exclusiveness of remedy under c. 152. The employee argues that the M.B.T.A. should be estopped from arguing at the department that the employee is not covered by worker’s compensation, having argued in the Superior Court that the employee is covered by worker’s compensation.

[2] General Laws c. 152, § 15 provides, in pertinent part:

Where the injury for which compensation is payable was caused under circumstances creating a legal liability in some person other than the insured to pay damages in respect thereof, the employee shall be entitled, without election, to the compensation and other benefits provided by this chapter. Either the employee or insurer may proceed to enforce the liability of such person, but the insurer may not do so unless compensation has been paid. . . . The sum recovered shall be for the benefit of the insurer, unless such sum is greater than that paid by it to the employee, in which event the excess shall be retained by or paid to the employee.

[3] General Laws c. 152, § 11D(3) provides:

An insurer that has paid compensation pursuant to a conference order, shall, upon receipt of a decision of an administrative judge or a court of the commonwealth that indicates that overpayments have been made be entitled to recover such overpayments by unilateral reduction of weekly benefits, by no more than thirty percent per week, of any remaining compensation owed the employee. Where overpayments have been made that cannot be recovered in this manner, recoupment may be ordered pursuant to the filing of a complaint pursuant to section ten or by bringing an action against the employee in superior court.

[4] The employee notes that the M.B.T.A., in its capacity as self-insurer, filed a lien against the proceeds of the tort recovery pursuant to c. 152, § 15, and, by petition approved by the administrative judge on July 8, 1994, was reimbursed for compensation paid. The employee argues that in choosing to assert rights under § 15, rather than recouping benefits paid as provided for by c. 152, § 11D, the M.B.T.A. avails itself of the rights established for employer’s covered under the Act in circumstances when “compensation is payable”. See § 15.

[5] When a civil action is no longer pending due to a judgment, order or other resolution, a party may file a Motion for Relief from Judgment for the reasons indicated under Rule 60 (b)(1)-(6) of the Mass. Rules of Civil Procedure.

[6] General Laws c. 152, § 26 states, in pertinent part:

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, and whether within or without the commonwealth, he shall be paid compensation by the insurer or self insurer, as hereinafter provided;. . . . For the purposes of this section any person, while operating or using a motor or other vehicle, whether or not belonging to his employer, with his employer’s general authorization or approval, in the performance of work in connection with the business affairs or undertakings of his employer, and whether within or without the commonwealth, and any person who, engaged in the usual course of his trade, business, profession or occupation, is ordered by an employer, or by a person exercising superintendence on behalf of such employer, to perform work which is not in the usual course of such work, trade, business, profession or occupation, and while so performing such work, receives a personal injury, shall be conclusively presumed to be an employee . . . [and] such injury shall be conclusively presumed to have arisen our of the employment.

[7] Gabriella and Keith Hoffman, M.B.T.A. street car operators, were injured in an automobile accident while driving to Riverside in the hope of obtaining overtime work. Their claims for compensation were denied by an administrative judge whose decision was affirmed by a majority of the reviewing board. Hoffman v.M.B.T.A., 3 Mass. Workers’ Comp. Rep. 71 (1989). The administrative judge had found that the Hoffmans trip to the Reservoir station was initiated solely at their discretion because of their hope that overtime work might prove to be available, and found that “in so doing, no benefit was being conferred on the employer.”Id. at 73. On further appeal, a single justice of the Appeals Court reversed, finding their injuries were sustained in the course of their employment because the trip involved benefit to the employer. Hoffman’s Case, No. 90-P-638 (Rule 1:28 Order, AC January 8, 1990). See Hoffman v. M.B.T.A.,
8 Mass. Workers’ Comp. Rep. 1 (1994) (board noted that the case involving whether an M.B.T.A. employee may be compensated for injury sustained while traveling in pursuit of possible overtime work was resolved in the employee’s favor by the Appeals Court. Id. at 2.)

[8] In Hicks v. M.B.T.A, 5 Mass. Workers’ Comp. Rep. 401 (1991), Annie Hicks, an M.B.T.A. employee arriving by train at her work site prior to the start of her shift, was injured while exiting the train when bumped from behind by a passenger carrying luggage. The board upheld a denial of benefits, observing that “the risk to an employee commuting to work by M.B.T.A. is no different from . . . the risk that any member of the commuting public encounters every day on the public transit system . . . and the fact the employer gave the employee the option of commuting to and from work for free on the M.B.T.A. did not make travel an incident of employment.”Id. at 403, citing Andrade v. M.B.T.A.,
3 Mass. Workers’ Comp. Rep. 232 (1989).