Opinion
BOARD No. 030999-91
Filed: December 19, 1995
REVIEWING BOARD DECISION
(Judges Smith, Maze-Rothstein and Kirby)
APPEARANCES
Gary W. Orlacchio, Esq., for the employee
David G. Sullivan, Esq., for the insurer
The employee appeals from the decision of an administrative judge denying and dismissing his claims for workers' compensation. Because of legal error in the judge's application of G.L.c. 152, § 26 and 27, we reverse the denial of benefits and remand on the extent of incapacity.
We summarize the facts as found by the judge and mention undisputed facts not specifically found.
The facts we summarize may be found on pages 4-6 of the administrative judge's decision. The undisputed facts, not specifically found by the judge, may be found in the Appellant-Employee's Brief at pages 1-6 and in the Appellee-Insurer's Brief at 2-4.
Earl Grant was employed as a security guard for Spectaguard, Inc. where he was expected to attend quarterly training sessions as part of his employment. He was compensated for the time spent at the meetings themselves, but not for transportation to and from training sessions which were held at a different location from his work sites. He worked at Spectaguard's Boston location on Devonshire Street.
On March 29, 1991, after traveling to the Spectaguard plant in Waltham for such a training session, Grant with a co-employee, Keith King, boarded a bus in Waltham to return home. At a stop in Waltham, an individual boarded the bus, sat in front of Grant, and opened two or three windows. During the ride to Central Square in Cambridge, Grant and this individual argued for approximately 10 minutes over opening the windows.
At one point, the passenger told Grant that he had a gun and was on his way to shoot someone and threatened to shoot Grant if he closed the windows. At that time nothing further happened.
Grant and King got off the bus at Central Square. The pair then boarded another bus destined for Dudley Square in Dorchester. The passenger who had earlier threatened Grant also boarded the same bus. At the first stop on Massachusetts Avenue in Boston, that passenger left his seat and walked to the front of the bus to exit. When the passenger motioned to him, Grant then followed the passenger to the front of the bus, allegedly to resolve the dispute. When Grant reached the front of the bus, the passenger, who had already left the bus, pulled out a gun and fired a single bullet into Grant's face causing serious injuries to his nose, eyes and the bones in the right side of the face, eyes, and also severing his right ear.
Grant filed a claim for § 34 temporary total incapacity benefits from March 29, 1991 to January 22, 1992 and § 35 partial incapacity benefits thereafter. The judge denied the claims both at conference and after the hearing. In his decision, the judge found that Grant was assaulted on March 29, 1991 when he was shot in the face following an argument with an individual on an MBTA bus. (Dec. 6.) He dismissed Grant's claims for payment of compensation, finding that Grant was not in the course of his employment when the assault took place. Id. He further found that Grant should have avoided the incident by changing his seat and should not have followed the individual to the front of the bus. (Dec. 7.) It is Grant's appeal from this decision that is before us.
Issues
The issues before us are whether 1) as a matter of law the employee sustained injuries arising out of and in the course of his employment while engaged in the business affairs of the employer under the provisions of G.L.c. 152, § 26; and 2) whether as a matter of law the employee was barred from recovery by reason of his own serious and wilful misconduct under the provisions of G.L.c. 152, § 27. We hold that the employee sustained a compensable injury under G.L.c. 152 and that his own conduct did not constitute serious and wilful misconduct so as to preclude recovery under G.L.c. 152, § 27. We therefore reverse the decision as to liability and remand for a determination of the extent of incapacity.
LEGAL DISCUSSION
1. Compensable Injuries pursuant to G.L.c. 152, § 26.
Section 26 provides 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. . . . G.L.c. 152, § 26 (1991) emphasis supplied.
In order for an employee to establish a right to compensation, he must show that his injury arose either 1) out of employment or 2) out of an ordinary risk of the street while engaged in the business affairs of the employer. Caron's Case, 351 Mass. 406, 408 (1966), citing Harvey's Case, 295 Mass. 300, 303 (1936); Simmon's Case, 341 Mass. 319, 320 (1960).
Ordinarily, when an employee sustains an injury on the street after he has completed work for the day and is on his way home from a fixed place of employment, that injury is not compensable. Gwaltney's Case, 355 Mass. 333, 335 (1969) [(discussing the "going and coming rule" stated in Chernick's Case, 286 Mass. 168, 172 (1934)]. Section 26 of G.L.c. 152, however, carves out an exception from that rule in the second alternative of its requirements for compensability, that is, benefits may be awarded for injuries sustained "while engaged in the business affairs of his employer" arising from a risk of the street. Hamel's Case, 333 Mass. 628, 629 (1956); see also Harvey's Case, 295 Mass. at 304. This is commonly known as the "street risks" doctrine and provides that injuries to an employee which are common to all persons traveling on public highways may be compensable though the injury itself is not incident to the employment relationship.McElroy's Case, 397 Mass. 743, 748 (1986).
To establish that he was engaged in the employer's business affairs, under § 26, an employee must demonstrate that the employment impelled the trip, making the trip a hazard of the employment.Caron's Case, 351 Mass. at 409. The Supreme Judicial Court has never adopted the narrow view that the employee must be engaged in the actual performance of his duties in order to recover compensation. D'Angeli's Case, 369 Mass. 812, 816 (1976). All that is required is that the "obligations" or "conditions" of the employment create the "zone of special danger" out of which the injury arises. Id. at 816, 817 [quoting O'Leary v.Brown — Pacific-Maxon, Inc., 340 U.S. 504, 506-507 (1951)]. The activity need only be incidental and not inconsistent with the employment to be deemed as benefiting the employer. D'Angeli's Case, 369 Mass. at 816; see generally Caswell's Case, 305 Mass. 500, 502 (1940) (injury arises out of employment if out of nature, conditions, obligations or incident of employment, "in other words, out of employment looked at in any of its aspects"). A homeward bound trip, outside of normal working hours, may be found to be an essential part of the employee's mission. Caron's Case, 351 Mass. at 409; Papanastassiou's Case, 362 Mass. 91, 93 (1972). The fact that an employee is not being paid at the time of the injury is not dispositive. Canavan's Case, 364 Mass. 762-764 (1974).
Under § 26, the physical harm may be either "the natural and probableor the abnormal and inconceivable consequence of the employment."Higgins's Case, 284 Mass. at 346, quoting Sponatski's Case, 220 Mass. 526, 531 (1915). The inquiry is not whether the precise physical harm has a nexus to the employment, but whether the employment put the employee in connection with a risk and that the risk in fact caused the injuries.Peter's Case, 362 Mass. 853, 888 (1972).
The undisputed facts of this case compel the legal conclusion that Grant was engaged in the employer's business affairs or undertakings within the meaning of § 26. The employer had a business interest in the training sessions and stood to potentially gain a benefit from having better prepared employees. See Allen v. Board of Selectman of Weymouth, 15 Mass. App. Ct. 901, 1009 (1983) [citing Caron's Case, supra at 410, (where employee's special mission accrues to the employer's benefit, injuries sustained on mission are compensable)]; McElroy's Case, 397 Mass. at 749 (necessary inquiry is whether employer had business interest in trip and stood to benefit from it). The training session was held at night outside of Grant's normal working hours at a different location from where Grant usually worked. Grant's supervisor expressly directed him to go to Waltham. Grant had his employer's authorization to make the trip to reach the destination and return from it. McElroy's Case at 749. The employer required Grant to make the trip, by making training session attendance mandatory. Although the employer did not expressly direct the means of transportation it gave Grant the implied authority to use transportation means that were necessary. See Id. The bus trip brought Grant in contact with the risk that in fact caused his injuries. SeeCaron's Case, 351 Mass. at 409 (injury compensable where employee injured while driving motor vehicle in course of employment). The fact that here the employee was shot as opposed to injured in a motor vehicle accident does not defeat compensability. Section 26 authorizes compensation for injuries that came from extraordinary sources as well as from ordinary ones.Higgins's Case, 284 Mass. at 346.
Accordingly, we reverse the judge's decision and find that the employee received a compensable injury pursuant to the so called "street risk" doctrine under the provisions of G.L.c. 152, § 26.
2. Serious and Wilful Misconduct pursuant to G.L.c. 152, § 27
The judge found that "the employee could have/should have avoided the incident by changing his seat to cease the argument [and] in addition, he should not have followed the individual to the front of the bus". Grant argues that, even if the findings are correct, his conduct did not amount to serious and wilful misconduct so as to bar his claim pursuant to G.L.c. 152, § 27. We agree.
Section 27 provides:
If the employee is injured by reason of his serious and wilful misconduct, he shall not receive compensation; but this provision shall not bar compensation to his dependents if the injury results in death.
Amended by St. 1935, c. 331
"Serious and wilful misconduct" is conduct with a "known or reasonably knowable `high degree of likelihood that substantial harm will result to another.'" Smith v. Raytheon, 9 Mass. Workers' Comp. Rep. ___ (August 18, 1995) [citing Scaia's Case, 320 Mass. 432, 434 (1946)]. See also O'Learys Case, 367 Mass. 108, 115-116 (1975). The conduct involves an intentional act either with the knowledge that it is likely to result in serious injury or with a reckless disregard of its probable consequences. The threshold extends beyond mere negligence or even gross negligence, to a reckless disregard for safety. Smith, supra; see Restatement (Second) of Torts, § 500 comment f (1965). The risk of death or grave bodily injury must be known or reasonably apparent, and the harm must be a probable consequence of a person's election to run that risk or of his failure reasonably to recognize it. The degree of risk that will warrant a finding of reckless conduct can involve an imputation of intentional conduct to a person who in fact did not realize the gravity of the danger. However, reckless conduct involves a degree of risk and a voluntary taking of that risk so marked that, compared to negligence, there is not just a difference in degree but also a difference in kind. Sandler v. Commonwealth, 419 Mass. 334, 336-337, 644 N.E.2d 641, 643-644 (1995), citing Scaia's Case, 320 Mass. 432 (1946).
In analyzing whether serious and wilful misconduct exists, the judge must consider all the immediately attending circumstances. Tripp's Case, 355 Mass. 515, 518 (1969). The judge ". . . should hesitate long before laying down . . . a positive rule of law that the employee was guilty of serious and wilful misconduct so as to bar relief to him." Id. at 519. Poor judgement alone will not suffice to bar the claim. D'Angeli's Case, 369 Mass. 812, 818 (1976). Neither does the fact that the employee's injury could have been avoided. Dillon's Case, 324 Mass. 102, 106 (1949);Blanchard's Case, 335 Mass. 175, 176-177 (1956).
We are loathe to conclude that the Boston public transit system is so infected by violence that an individual acts with reckless disregard of safety by acting as Grant did. An approximately ten minute argument over open windows or the act of walking down to the front of the bus, even if it was to continue the verbal exchange rather than to make peace, does not amount to serious wilful misconduct under c. 152, § 27. Construing the record in the light most favorable to the insurer, we conclude as a matter of law that it will not support a § 27 bar to compensability.
We make no judgement about Grant's motivation in walking to the front of the bus. Grant contends that his action in walking to the front of the bus was to "squash" the disagreement, to resolve the dispute so that the parties forget their disagreement and take no further action regarding it. (Tr. 21.) Grant testified that he was eager to "squash" the dispute because he feared that unless it was settled peaceably that night, the passenger might extract vengeance at some future date. (Tr. 42.)
CONCLUSION
In summary, we reverse the judge on liability because we find that this evidence could only support one conclusion. We hold that the employee has sustained a compensable injury under G.L.c. 152, § 26, and is therefore entitled to causally related reasonable and necessary medical benefits under § 30. We further hold that § 27 has no application to this case.
We remand for findings on the nature and extent of incapacity and the causal relationship, reasonableness and necessity of any disputed medical treatment. In the interest of justice and given the passage of time, if either party alleges a change in condition, the judge may take further evidence or testimony as he deems necessary.
So ordered.
====================== Suzanne E.K. Smith Administrative Law Judge
====================== Edward P. Kirby Administrative Law Judge
====================== Susan Maze-Rothstein Administrative Law Judge
Filed: December 19, 1995