Determining if an injured employee is eligible for workers’ compensation benefits is straightforward if the accident occurs at the work site. It is not as clear if the worker is injured while traveling to and from locations. Workers’ compensation benefits are awarded to those injured while performing acts for the employer in the ordinary course of business. Thus, if a position requires an employee to travel, and the employee is injured while traveling for the employer, the employee is eligible for workers’ compensation. However, a worker is barred from receiving compensation if the “going and coming” rule applies. This rule blocks injured workers from receiving compensation if an injury occurs while an employee travels to and from a lone, static place of employment.
Traveling employees are different, though, and this is illustrated in a recent Reviewing Board decision (Board No. 015466-13). In this case, the insurer appealed a decision by an administrative judge that awarded payment of §§ 13 and 30 medical benefits to a nurse seriously injured in a car accident. The injured worker was a psychiatric nurse who was assigned to work in Brattleboro, Vermont. The employee traveled from her home in Massachusetts to work five days a week on the night shift. The injured nurse was provided expenses for a hotel stay and meals for five days of the week. The nurse advised she did not put in for additional travel reimbursement from the employer, nor did she tell her employer whether she traveled home to Massachusetts on her off-days. The injured nurse did not think she was required to go home on those days, nor did she believe she was obligated to tell her employer any time she went home.
The senior market manager for the injured nurse’s company testified at the hearing. The manager stated she provides all traveling employees with a seven-day per diem each week unless she was told they were traveling back to the “permanent tax home.” The manager testified that while she did not assume the contracted medical staff traveled, she did provide additional per diem payments to employees who notified her they were going home to pick up clothes or traveling for a personal event.
The insurer argued at the initial hearing that the nurse fell under the “going and coming” rule and was ineligible for the §§ 34, 13, and 30 benefits. The judge reviewed the employee’s contract with the employer and found it to be unclear on whether the travel per diem was paid for travel made in addition to the trips to and from the injured nurse’s home and the assigned location in Vermont. In her findings, the administrative judge adopted the testimony of the employee that travel to and from her home on her days off was not compulsory. Following the precedent of a case with similar circumstances, the judge determined that the “going and coming” rule did not apply.
In its assessment, the Reviewing Board looked at the definitions found within the Internal Revenue Service (IRS) guidelines of what does or does not qualify an employee as a traveler. If an employee receives a per diem payment for meals or lodging without deduction for taxes, the employee is considered a traveler. The Board also looked at the per diem provided by the employer as its willingness to compensate travel. The Board found the travel performed by an employee to be a clear benefit to the employer’s business and necessary to the operation. The administrative judge’s award of benefits was affirmed.
If you are injured while traveling for work, contact our office to assess your eligibility for workers’ compensation benefits. The Massachusetts workers’ compensation attorneys at Karsner & Meehan can pursue all avenues of relief and help you aim to maximize the benefits you deserve. Call today at 508.822.6600 for a free, confidential consultation.
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Massachusetts Workers’ Compensation Reviewing Board Looks at Mental Health Benefits, December 30, 2016, Massachusetts Injury Lawyers Blog
Massachusetts Appeals Court Finds Son Cannot Receive Underinsured Motorist Benefits From Mother’s Policy, December 20, 2016, Massachusetts Injury Lawyers Blog
Federal Circuit Court of Appeals Case Gives Insight on Social Security Disability Determinations, November 18, 2016, Massachusetts Injury Lawyers Blog