TKCK’s New Hampshire practice group scored a big win at the New Hampshire Compensation Appeals Board with respect to the Going and Coming Rule. Attorneys Richard Florino and Matthew Fausch argued this case successfully.
The employee (an ambulance driver) was on his way in his personal vehicle to report to work to cover an extra shift when he was involved in a very serious single car accident which resulted in severe injuries. The employee argued two distinct theories to make this a compensable claim New Hampshire Worker’s Compensation RSA §281-A:2, XI, XIII (Causal Relationship of Injury to Employment).
His first theory was that he was on a “special errand” on the morning of the alleged incident, so as to negate the Going and Coming Rule. He based this argument that he was helping the employer by covering this extra shift.
The second theory was that fatigue from working long hours – he claimed he worked 84 hours the week prior, which led to extreme fatigue, causing him to fall asleep at the wheel and therefore the injury arose out of and in the course of his employment.
Testimony offered at the CAB included three employer witnesses who testified that covering extra shifts is completely voluntary and at the employee’s choosing, and that furthermore extra financial compensation is offered commensurate with the extra shifts. The employer testified that there is no mandate that employees must take on extra shifts; all extra shifts are on a voluntary basis. Further testimony elicited from the employer that employees may choose to do partial extra shifts if they wish. The CAB discussed the distinction between a true “special errand” which is outside the employee’s normal job description and is being asked by the employer of the employee to perform, versus the regular duties that were to be performed in this extra shift (normal every day patient transfers). The CAB also ruled that there was no compulsion to volunteer for extra shifts, that it was a normal occurrence for employees to pick up extra shifts, and that the financial incentives offered to pick up these extra shifts were a standard business policy.
Further testimony detailed information regarding the ambulance base facility and the accommodations for rest, sleep and food. Further testimony was offered that the employee had been off duty between 24 and 48 hours prior to the motor vehicle accident, which should have been ample time for the employee to rest and sleep. The CAB rejected the employee’s argument that fatigue and an excessive work schedule were a significant contributing cause to the employee’s injury, and held that the evidence indicated the employee “…rested at home, slept well, and did not work for approximately thirty three hours prior…” to the injury and that “…the amount of rest should have been sufficient.”
The Compensation Appeals Board denied the employee’s claim for compensation.
This decision was a significant ruling with respect to the Going and Coming Rule and we understood that many ambulance companies and like employers were concerned that an adverse decision would impact their ability to do business in the State of New Hampshire given the potential exposure and effect on their policies and methods of doing business.
If you have any questions on this case or workers’ compensation in New Hampshire in general, please contact any member of our New Hampshire team.