Sleepy Employee Hurt Driving Home Denied Mass. Workers’ Comp

A construction worker on Boston’s “Big Dig” highway project is not entitled to workers’ compensation benefits for injuries he suffered after he fell asleep while driving home late from work, the state’s high court has ruled.

The worker, who had worked 27 hours straight before driving home, was not entitled to benefits because he did not prove he was required to work the long shift, the Massachusetts Supreme Judicial Court said in reversing an Industrial Accident Board ruling.

The case involved the so-called “going and coming” rule under which compensation is typically not granted for injuries suffered by employees going to and coming from their work.

The employee, Michael Haslam, began working at 5 a.m. on August 3, 2001, the day before the accident, according to court records. He was a foreman who supervised a crew of carpenters building forms for road supports for the “Big Dig” central artery project in Boston. That day the project was delayed for various reasons, and the pouring of concrete into the forms did not begin until 1 a.m., about 20 hours after the employee had begun his shift. The employee testified that the day shift, for which he had been scheduled, ended at 3:30 p.m., and that he was not scheduled to work over night. He remained on the job, he said, because “a carpenter has to be there while the concrete’s being poured, to the finish…. I had to be there. There was nobody else there to finish what I was doing until about 8 [a.m.]” As a result, he said, “I sucked it up and drove on because if I didn’t finish it I probably wouldn’t have had a job.”

The construction crew supervisor on duty that night testified, however, that if he was told that “somebody was tired, you know, there’s a slew of people … a few different people from the carpenters’ end if there is a problem that [the supervisors] can fall back on, so I could make the phone calls to get more personnel out there.” He testified that Haslam did not ask for assistance during the night. When the employee was asked at the hearing, “[D]id anybody tell you had to stay that length of time?” he answered unequivocally, “No.”

The administrative judge also found that, under his union’s contract with his employer, the employee could not be required to work overtime.

Before he headed home on August 4, the employee had worked for approximately 27 hours without sleep. When he left the worksite at 8:15 a.m., he felt, in his words, “totally exhausted.” He fell asleep after driving for 30 minutes, crashed into a utility pole, and was injured, according to the court.

In his decision in 2004, the administrative judge had concluded that the employee’s injuries were compensable because “the physical state that caused the accident arose directly out of and had presented itself while [the employee] was still on the job,” and that his “utter exhaustion, due to work-caused sleep deprivation, clearly arose out of and in the course of his employment.”

In his subsidiary findings of fact, he found that the employee continued working because, in the administrative judge’s words, the employee “wanted to get out of the overtime,” but was “sucking it up” because “the job had to be done and because he felt there would be repercussions up to the possible loss of his job if the work was not completed on schedule.” The administrative judge made no express finding whether the employee had been compelled to work beyond his regular shift.

Haslam’s attorneys argued that the “going and coming” rule did not apply in his case because his injuries were “directly attributable to the workplace and arose out of the employment.”

In its appeal, the insurer argued that Haslam’s injuries are not compensable because he was not required to stay beyond his scheduled shift and workers’ compensation is not intended to protect against all perils of a worker’s journey between home and place of employment).

The SJC agreed agree with the insurer.

The court noted that in previous cases where exceptions were made to the “going and coming” rule, employer had required the employee to work unusually long hours.

In Haslam’s case, however, no one had ordered him to stay on the job. “The employee’s subjective belief of negative consequences that he anticipated would follow had he left at the end of his shift is not enough. To the extent the administrative judge reached his conclusion based on the employee’s subjective perceptions or beliefs, he erred,” the high court stated.

The case is Michael Haslam’s case, SJC09915, decided on April 8.