Decision  Justin Rose v. Kerins Concrete

Date:	08/11/2011
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 036645-06
Location:	Boston

• Employee: Justin Rose
• Employer: Kerins Concrete
• Insurer: Granite State Insurance Company

FABRICANT, J. The employee appeals from the administrative judge’s decision denying his claim that injuries he sustained in a motor vehicle accident while driving from his home to a job site were compensable under G. L. c. 152. The judge found that because neither the employee’s “place of business” nor his “work hours” were fixed, his claim was not barred by the so-called “going and coming” rule.¹ She concluded, however, that although the employee’s job involved travel to and from job sites which differed day to day, such travel was equivalent to commuting, and did not bring him under the purview of the “ordinary risk of the street” provisions of G. L. c. 152, § 26,² for the purpose of coverage. Based on Smith’s Case, 326 Mass. 160 (1950), we agree, and affirm the decision denying and dismissing the employee’s claim.

¹  “When an Employee has a fixed place of business and/or fixed work hours, injuries incurred while going to or coming from work, are not compensable and would generally be barred by the established ‘Coming and Going’ rule, Gwaltney’s Case, 355 Mass. 333 (1969).” (Dec. 12.)(bold in original.)

²  General Laws c. 152, § 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. . . .