Decision  Joan E. Brown v. All Care Resources

Date:	11/18/2004
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 010721-01
Location:	Boston

• Employee: Joan E. Brown
• Employer: All Care Resources
• Insurer: AIM Mutual Insurance Company

COSTIGAN, J. The insurer appeals from an administrative judge's finding that the employee sustained a compensable work-related injury when she slipped and fell while clearing ice from her automobile in the driveway of her residence. The employee, a visiting licensed practical nurse, was preparing to drive to her first patient assignment of the day when the accident occurred. Based on the very facts found by the judge, we hold, as a matter of law, that the employee's injury did not arise out of and in the course of her employment, nor did it arise out of an ordinary risk of the street, as defined in G. L. c. 152, § 26. ² Accordingly, we reverse the judge's decision.

² General Laws c. 152, § 26, as amended by St. 1991, c. 398, § 40, sets forth a two-prong test for compensability, providing in pertinent part:

If an employee who has not given notice of his claim of common law rights of action under section twenty-four . . . 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 . . . 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 . . . who . . . receives a personal injury, shall be conclusively presumed to be an employee.

(Emphasis added.)