MICHAEL HASLAM'S CASE.

MARSHALL, C.J. We transferred this case from the Appeals Court on our own motion to decide whether injuries sustained by Michael Haslam (employee) in a one-car accident while he was driving home after working for twenty-seven hours without sleep are compensable under the workers' compensation act, G. L. c. 152, § 26. [Note 1] In Chernick's Case, 286 Mass. 168, 172 (1934), this court held that compensation for an injury arising out of and in the course of employment "does not extend to cover employees going to and coming from their work," colloquially

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referred to as the "going and coming" rule. See Wormstead v. Town Manager of Saugus, 366 Mass. 659, 666 (1975). In this case, an administrative judge of the Department of Industrial Accidents concluded that, while the accident occurred during the employee's commute home, the employee's injuries were compensable because the employee's "utter exhaustion due to work-caused sleep deprivation" resulted in the accident. A divided reviewing board affirmed. The insurer, National Union Fire Insurance Company (insurer), appealed. We conclude that the employee's injuries are not compensable because the employer did not require the employee to work beyond his regular, far shorter, shift. We reverse the decision of the reviewing board.

1. Background. We summarize the pertinent evidence. See Papanastassiou's Case, 362 Mass. 91, 92 (1972). The employee began working at 5 A.M. on August 3, 2001, the day before the accident. He was a foreman who supervised a crew of carpenters building forms for road supports for the "Big Dig" central artery project in Boston. [Note 2] That day the project was delayed for various reasons, and the pouring of concrete into the forms did not begin until 1 A.M., twenty 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, David Arruda, "corroborated" the employee, in the administrative judge's words, that a carpenter was required to be present during concrete pours. The supervisor 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

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could make the phone calls to get more personnel out there." [Note 3] Arruda testified that the employee 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." [Note 4] The administrative judge found that, under his union's contract with his employer, the employee could not be required to work overtime.

It is undisputed that, before he headed home on August 4, the employee had worked for approximately twenty-seven hours without sleep. [Note 5] When he left the worksite at 8:15 A.M., he felt, in his words, "totally exhausted." He fell asleep after driving for thirty minutes, crashed into a utility pole, and was injured. [Note 6]

On October 16, 2001, the employee filed a claim for benefits for a compensable injury. On January 14, 2002, the claim went before an administrative judge for a conference pursuant to G. L. c. 152, § 10A (1). [Note 7] The administrative judge ruled that the injury was compensable and issued an order requiring the insurer

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to pay benefits to the employee, including temporary total incapacity benefits pursuant to G. L. c. 152, § 34, partial incapacity benefits pursuant to G. L. c. 152, § 35, and medical benefits pursuant to G. L. c. 152, § 30. Both parties sought a hearing pursuant to G. L. c. 152, § 10A (3). [Note 8] At the hearing on September 24, 2002, before the same administrative judge, the employee challenged the amount and scope of the award. [Note 9] The insurer challenged the rulings as to liability, incapacity, entitlement to medical benefits, causal relationship, and average weekly wage, and sought recoupment of monies paid pursuant to the conference order.

In his decision of March 8, 2004, the administrative judge concluded that the employee's injuries were compensable [Note 10] 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

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sleep deprivation, clearly arose out of and in the course of his employment." [Note 11] 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 subsidiary (or other) findings concerning the supervisor's testimony that he could have brought other employees onto the night shift, and that the employee did not ask for assistance. [Note 12] See note 3, supra. He made no express finding whether the employee was compelled to work beyond his regular shift. [Note 13]

The insurer appealed from the decision to the reviewing board pursuant to G. L. c. 152, § 11C. [Note 14] A divided panel of the reviewing board affirmed the decision. [Note 15] Two administrative law judges agreed, for different reasons, that the employee's injuries were compensable. One concluded that the employee's exhaustion arose out of and in the course of his employment because the employee was " 'impelled by his employment' to continue working until the concrete pour was finished, 27 hours after his shift began." [Note 16] She noted that the employee was "not ordered to work overtime," but reasoned that his injuries were compensable

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because "the employee felt obligated to stay until the [concrete] pour was completed." Citing Hicks's Case, 62 Mass. App. Ct. 755, 764 (2005), she concluded that the supervisor had "impliedly authorized" the employee's overtime by allowing him to continue to work, by paying him for the overtime, and by "not providing any relief" to the employee. See note 20, infra. A second member of the reviewing board, citing Zerofski's Case, 385 Mass. 590, 594 (1982), concluded that the injuries arose out of and in the course of employment because there was a "direct cause between the employee's work, his diminished capacity to safely operate his automobile, and his resulting injuries and disability." The dissenting member of the reviewing board reasoned that the injuries were not compensable because they did not arise out of and in the course of employment where there was no evidence that the employee was "required or requested" to remain at work beyond the usual end of his shift and because "work-related fatigue is not the kind of 'harm' which our courts have construed as either constituting, or giving rise to, a compensable injury."

2. Standard of review. Pursuant to G. L. c. 152, § 12 (2), we review a decision of the reviewing board under the standards of the Administrative Procedure Act, G. L. c. 30A, § 14 (7) (a)-(d), (f), and (g). We may set aside or modify the decision of the reviewing board if the decision is, among other things, "[b]ased on an error of law," "[m]ade upon unlawful procedure," or "[a]rbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law." G. L. c. 30A, § 14 (7) (c), (d), (g). See Robinson's Case, 416 Mass. 454, 455-457 (1993).

3. Fatigue "arising out of and in the course of" employment. The employee does not take issue with the "going and coming" rule, see L.Y. Nason, C.W. Koziol, & R.A. Wall, Workers' Compensation § 12.4 (3d ed. 2003) (Nason, Koziol, & Wall), but argues that where the medical evidence established "a clear causal link between the employment activity and the injury," the employee's injuries were "directly attributable to the

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workplace and arose out of the employment" and the "going and coming" rule does not apply in his case. Uncontradicted evidence before the administrative judge supported his finding that the employee fell asleep at the wheel as a result of working for twenty-seven hours without sleep. The insurer does not challenge that finding, [Note 17] but argues that the employee's injuries are nevertheless not compensable because, among other reasons, the employee, injured while traveling home from work, was not required to stay beyond his scheduled shift: in the words of the insurer, the overtime "was not compelled, overtime was not mandatory, and [the employee] testified that he could have left at anytime." See 1 A. Larson, Workers' Compensation Law § 13.01[1] (2007) (workers' compensation not intended to protect against all perils of worker's journey between home and place of employment). We agree with the insurer.

The employee points to cases from other jurisdictions where injuries sustained during travel from work have been deemed "employment-related," and therefore compensable because the travel home was made more hazardous by an employer's "extraordinary demands" for overtime work by the employee. [Note 18] Van Devander v. Heller Elec. Co., 405 F.2d 1108, 1110 (D.C. Cir. 1968) (compensating employee pursuant to Federal Longshoremen's and Harbor Workers' Act, 44 Stat. 1424 [1927], as amended, 33 U.S.C. §§ 901-950 [1957], for injuries sustained when he fell asleep while driving home after being required to work twenty-six hours without sleep because hazard of journey arose out of and in course of "extraordinary demands of employment"). See Hed v. Brockway Glass Co., 309 Minn. 73,

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76 (1976) (affirming compensation award to worker who fell asleep while driving home after being required to work longer hours as a bricklayer than generally required); Snowbarger v. Tri-County Elec. Coop., 793 S.W.2d 348, 350 (Mo. 1990) (affirming award of compensation to worker who fell asleep while driving home after being required to work "unusually long overtime hours" of manual labor, eighty-six hours in one hundred hour period). See also Deland v. Hutchings Psychiatric Ctr., 203 A.D. 2d 776, 778 (N.Y. 1994) (recognizing "substantial body of authority from other States and the Federal courts" holding that fatigue-related injuries can be compensable in some circumstances, but remanding case for explanation why contrary precedent within jurisdiction was not followed). In all such cases, however, the employer had exposed its worker to the hazards of travel by requiring the employee to work unusually long hours. See, e.g., Van Devander v. Heller Elec. Co., supra; Hed v. Brockway Glass Co., supra at 76; Snowbarger v. Tri-County Elec. Coop., supra at 349; Deland v. Hutchings Psychiatric Ctr., supra. We need not decide in this case whether a requirement by an employer that an employee work overtime to such an extent that the employee's trip home is made substantially more hazardous can give rise to a compensable injury because here the employee has not met his burden to show that he was required by his employer to work beyond his usual shift. See Sponatski's Case, 220 Mass. 526, 527-528 (1915) (employee bears "burden of proving the essential facts necessary to establish a case warranting the payment of compensation" under act); Patterson v. Liberty Mut. Ins. Co., 48 Mass. App. Ct. 586, 592 (2000) ( "the employee has the burden of establishing, by a preponderance of the evidence, all the elements of her claim for workers' compensation benefits"). In the words of the reviewing board, the employee was "not ordered to work overtime." [Note 19]

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In fact, he was protected from such a requirement by his union contract.

As noted earlier, the employee testified that he stayed on the job beyond his regular shift because he "probably wouldn't have had a job" if he had left. Accepting the employee's testimony, the administrative judge made subsidiary findings that in essence found that it was the employee's subjective belief that kept him on the job beyond his scheduled shift. The employee testified that no one had ordered him to stay on the job. He also testified that four carpenters left at the end of their day shift on the day before the accident and had suffered no job repercussions. His supervisor, Arruda, testified that he (Arruda) could have called other carpenters to relieve the employee if the employee had asked for assistance. 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. [Note 20] Cf. Bengtson's Case, 34 Mass. App. Ct. 239, 243-244 (1993) (denying compensation for worker's injury sustained during participation in employer-organized softball game, concluding "nature of an employee's participation in a recreational activity . . . must be weighed by an objective standard"). [Note 21] We are not aware of any decision in which a fatigue-caused injury while an employee was traveling home has been held compensable where

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the employee was not required to work the extra hours. It is the "extraordinary demands of the claimant's employment" that may foreseeably expose the claimant to the risk of injury. 1 A. Larson, Workers' Compensation Law, supra at § 14.05[4], at 14-14.

There may be cases where fatigue gives rise to a compensable injury because an employer makes "extraordinary demands" on an employee and the employee is compelled to remain on the job. See, e.g., Van Devander v. Heller Elec. Co., supra at 1110. The dissenting member of the reviewing board panel commented that recognizing an exception to the "going and coming" rule in such circumstances would consign administrative judges "to the daunting task of drawing a bright line as to how many extra hours of work would be sufficient" to render fatigue-related injuries compensable. Necessarily administrative judges will have to determine whether an employer made an "extraordinary demand" based on the facts of each case, including but not limited to the worker's duties, the amount of overtime, the length of the worker's typical shift, and whether such facts warrant a conclusion that the overtime was so great "as to increase markedly the factor of fatigue" and that the fatigue from the overtime caused the accident. 1 A. Larson, Workers' Compensation Law, supra at § 14.05[4], at 14-14. [Note 22] But this task is no more "daunting" for judges than the task of applying other exceptions to the "going and coming" rule. See Caron's Case, 351 Mass. 406, 409 (1966) (noting, with regard to special errand exception, that "each case must be decided on its own facts").

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4. Exceptions to the "going and coming" rule. The employee argues that, even if the "going and coming" rule applies to him, his injuries are compensable because they fall within a recognized exception to that rule. See Nason, Koziol, & Wall, supra at § 12.4, at 379 (discussing exceptions to "going and coming" rule for off-premises injuries and noting that this court "has established a number of special circumstances that warrant compensation"). He points in particular to the "special errand" exception to the "going and coming" rule, which compensates an injury sustained while on a "mission which [was] necessitated by . . . employment." Caron's Case, supra at 409 (affirming compensation award to worker injured while driving home from evening business meeting at hotel he was required to attend).

When an employee makes a special trip, distinct from his regular commute to and from work, the employment relationship is not suspended and injuries sustained during the trip might be compensable. Id. at 408. See 1 A. Larson, Workers' Compensation Law, supra at § 14.05[1], at 14-5 (journey by employee "may be brought within the course of employment by the fact that the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself" [emphasis added]). In this case, however, when the employee was injured he was not engaged in any mission for his employer, but was driving home from work, an activity at the heart of the "going and coming" rule.

The Massachusetts cases on which the employee relies are distinguishable. For example, in Rouse v. Greater Lynn Mental Health, 16 Mass. Workers' Comp. Rep. 7, 8 (2002), aff'd, Appeals Court No. 2002-J-0048 (Mar. 3, 2004), a home health aide was compensated for an injury she sustained while walking to a patient's house to provide care during a snowstorm, when she was not scheduled to work. The reviewing board concluded the worker was on a "special trip," id. at 12, because she was traveling to work to "fulfill [the] employer's obligations to its clients," id. at 11, and was not "merely going to work as [she] normally and usually went to work." Id. at 12, quoting Gwaltney's

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Case, 355 Mass. 333, 335 (1969). Similarly, in Papanastassiou's Case, 362 Mass. 91, 94 (1972), the dependents of a research scientist were compensated for injuries he sustained in a car accident while returning to work, outside of his usual hours, to complete an experiment. This court concluded the worker's injuries were compensable because his trip was implicitly authorized by his employer and was "in fulfilment of the [worker's] obligations to his employer." Id. at 94. Here, in contrast, while driving home, the employee was not fulfilling any obligation to or on behalf of his employer. He was not driving from a location that his employer required him to visit. Cf. Caron's Case, supra at 409. [Note 23] He was driving home from his fixed place of work as he usually did. None of the exceptions to the going and coming rule applies to the circumstances of this case.

5. Insurer's additional claims. Because we conclude that the employee's injuries are not compensable, we need not address the insurer's additional arguments that the amended decision of the administrative judge was issued prior to any hearing or ruling on a pending motion filed by the insurer in violation of the insurer's rights to due process; that the administrative judge, without authority, retained jurisdiction over the prevailing wage issue; and that the administrative judge improperly reserved for the employee the right to raise a new claim as to his average weekly wage. See note 10, supra.

6. Conclusion. For the reasons stated above, the decision of the reviewing board is reversed. The case is remanded to the reviewing board for further proceedings consistent with this opinion.

So ordered.