Barnes v. Children's Hospital

HOLLANDER, Judge. In this workers’ compensation appeal, we shall examine the “special mission” or “special errand” rule. Joan A. Barnes, appellant, was employed by appellee Children’s Hospital (“the Hospital”), in a supervisory capacity. One Saturday, a day on which she did not normally work, Barnes was shopping with her family when she was called to work to perform a task usually handled by a subordinate who was not at work that day.

Barnes planned to take her family home before proceeding to work. She also realized that she needed gasoline to make the trip to the Hospital. Consequently, Barnes stopped for gasoline and, while on the premises of the service station, she slipped on a puddle of oil and was injured. Thereafter, Barnes filed a claim for workers’ compensation benefits.

She alleged that she was acting in the course of her employment at the time of her injury, because she had been on a “special mission” for her employer. The Hospital and its workers’ compensation insurance carrier, appellee Injured Workers’ Insurance Fund, contested the claim. The Workers’ Compensation Commission determined that appellant had not sustained an accidental injury arising out of and in the course of her employment and therefore denied her claim. Barnes sought review in the Circuit Court for Baltimore City.

After a bench trial, the court affirmed, holding that Barnes was not on a special mission at the time of her injury. Barnes now appeals and presents the following issues for our consideration: I. Whether the court was in error in finding that the Appellant was not on a special mission for her employer at the time the injury was sustained. A. Whether the Appellant was engaged in an emergency and/or irregular and unusual task for her employer at the time of the injury. B. Whether the Appellant engaged in a self contained trip that resulted in a deviation from her direct path to her employer’s work place. ⁵⁵¹ We hold that appellant was on a special mission for the Hospital at the time of her injury.

Therefore, the accidental injury she sustained arose out of and in the course of her employment. Accordingly, we shall reverse and remand. FACTUAL BACKGROUND In October 1992, Barnes was employed by the Hospital as director of computer and information systems, a supervisory position for which she received a salary. Her normal working hours were 8:00 a.m. to 4:30 p.m., Monday through Friday, although Barnes usually remained' at the office later than 4:30 p.m.

Barnes was also considered “on call” at all times. To enable the Hospital to contact Barnes to assist with problems at the office, the Hospital provided her with a beeper. Although it was not unusual for the Hospital to contact her during her off-hours, Barnes usually could resolve problems over the telephone. Nevertheless, at times she would have to travel to the Hospital.

On Saturday, October 3, 1992, Barnes was on a shopping trip with her daughter and granddaughter when Diane Gill, the Hospital’s comptroller, paged her on the beeper. Gill informed Barnes that she was needed at the Hospital to work on a monthly accounts receivable report, because the employee who usually performed this work was out on a fishing trip. The report was generated on the third day of each month and, as a supervisor in charge of the Hospital computer systems, Barnes was ultimately responsible for the report once it was produced. After speaking with Gill, Barnes intended to drive her family home before proceeding to work.

She noticed, however, that she did not have enough gasoline to get to the Hospital. Before being called by the hospital, she had not planned to fill her car with gasoline; her son usually did that for her each Sunday. Prior to bringing her family home, Barnes drove to a gasoline service station and, after stepping out of her car, she slipped on a puddle of oil and fell to the ground. She sustained a fracture of her right hand and ⁵⁵² injuries to her left knee and left shoulder.

She has since had three knee operations. In spite of her injuries, Barnes travelled to the Hospital to perform the requested tasks. Because of the fall, her family accompanied her to work, although they had originally intended to go home. Barnes was terminated by the Hospital on October 25,1993.

Approximately one month later, on November 26, 1993, she filed a claim for workers’ compensation benefits. After a hearing, the Workers’ Compensation Commission determined that appellant had not sustained an accidental personal injury arising out of and in the course of her employment. The circuit court also concluded that appellant’s injuries were not compensable, because Barnes had not been on a special mission at the time of her injury. The judge stated: The case, even if the Court looks at the evidence in the light most favorable to the claimant, and I clearly found the evidence to be very, very credible, as well as the daughter being very, very credible.

Again, maybe the Court is incorrect. The Court is of the opinion that because of the claimant’s position with the hospital and what normally goes along with any employee who has a beeper and, quote, unquote, on call from time to time, either to correct things by phone or going to work, that the Court finds that the claimant was not on a special errand, and therefore, the Court finds this is not a compensable work-related injury, and, therefore, the Court affirms the decision of the Workers Comp Commission. STANDARD OF REVIEW Appeals from the Workers’ Compensation Commission to the circuit court are conducted essentially as trials de novo. Chadderton v. M.A. Bongivonni, Inc., 101 Md.App. 472, 478 , 647 A.2d 137 (1994); General Motors Corp. v. Bark, 79 Md.App. 68, 73-81 , 555 A.2d 542 (1989).

Therefore, when the circuit court hears the case without a jury, our review of the factual findings is governed by the “clearly erroneous” ⁵⁵³ standard. Maryland Rule 8-131(c). Kelly Catering, Inc. v. Holman, 96 Md.App. 256, 269 , 624 A.2d 1300 (1993), aff'd, 334 Md. 480 , 639 A.2d 701 (1994). By statute, “the decision of the Commission is presumed to be prima facie correct.” Maryland Code, Labor and Employment Article (“L.E.”) § 9-745(b)(1) (1991). “[0]ur function is not to determine whether we might have reached a different conclusion” on the evidence.

Mercedes-Benz v. Garten, 94 Md.App. 547, 556 , 618 A.2d 233 (1993). We will view the evidence in the light most favorable to the prevailing party. Mayor and Council of Rockville v. Walker, 100 Md.App. 240, 256 , 640 A.2d 751 , cert. granted, 336 Md. 354 , 648 A.2d 464 (1994). We also will assume the truth of the evidence presented and give the prevailing party the benefit of all favorable inferences fairly deducible therefrom.

Mercedes-Benz, supra, 94 Md.App. at 556 , 618 A.2d 233 . If there is any competent, material evidence to support the trial court’s factual findings, then we cannot set them aside as “clearly erroneous,” even if we might have found otherwise. Mayor and Council of Rockville, supra, 100 Md.App. at 256 , 640 A.2d 751 ; Nixon v. State, 96 Md.App. 485, 491-92 , 625 A.2d 404 , cert. denied, 332 Md. 454 , 632 A.2d 151 (1993); Fantasy Valley Resort, Inc. v. Gaylord Fuel Corp., 92 Md.App. 267, 275 , 607 A.2d 584 , cert. denied, 328 Md. 237 , 614 A.2d 83 (1992). But, the “clearly erroneous” standard “does not apply to a trial court’s determinations of legal questions or conclusions of law based on findings of fact.” Heat & Power Corp. v. Air Products & Chemicals, Inc., 320 Md. 584, 591 , 578 A.2d 1202 (1990).

Accord Provident Bank v. DeChiaro Limited Partnership, 98 Md.App. 596, 603 , 634 A.2d 973 (1993), cert. denied, 334 Md. 210 , 638 A.2d 752 (1994). The Maryland Workers’ Compensation Act, which entitles covered employees to compensation for accidental personal injuries that arise “out of and in the course of employment,” L.E. §§ 9—101(b), 9-501(a), is a remedial statute. Its provisions are liberally construed in favor of the employee. Lovellette v. Mayor & City Council of Baltimore, ⁵⁵⁴ 297 Md. 271, 282 , 465 A.2d 1141 (1983); Bethlehem-Sparrows Point Shipyard, Inc. v. Hempfield, 206 Md. 589, 594 , 112 A.2d 488 (1955); Ewing v. Koppers Co., 69 Md.App. 722, 731 , 519 A.2d 790 (1987).

Thus, any ambiguity in the law is resolved in favor of the claimant. Mayor & City Council of Baltimore v. Cassidy, 338 Md. 88, 97 , 656 A.2d 757 (1995); Cline v. Mayor & City Council of Baltimore, 13 Md.App. 337, 344 , 283 A.2d 188 (1971), aff'd, 266 Md. 42 , 291 A.2d 464 (1972). The doctrine of liberal construction does not mean, however, that coverage may be granted beyond that which is authorized by the provisions of the Act. Tortuga, Inc. v. Wolfensberger, 97 Md.App. 79, 83 , 627 A.2d 56 , cert. denied, 332 Md. 703 , 632 A.2d 1209 (1993).

DISCUSSION I. We must resolve whether Barnes’s accidental injury arose “out of and in the course of her employment.” See L.E. § 9—101(b)(1). The term “out of’ employment refers to the cause or origin of the accident. Wiley Manufacturing Co. v. Wilson, 280 Md. 200, 205 , 373 A.2d 613 (1977); Proctor-Silex Corp. v. DeBrick, 253 Md. 477, 480 , 252 A.2d 800 (1969). Although no exact formula for the matter exists, an injury arises out of employment if it results from the nature, conditions, obligations, or incidents of the employment.

Knoche v. Cox, 282 Md. 447, 455 , 385 A.2d 1179 (1978); CAM Construction Co. v. Beccio, 92 Md.App. 452, 460 , 608 A.2d 1264 (1992), aff'd per curiam, 329 Md. 600 , 620 A.2d 939 (1993). Upon consideration of all the circumstances, there must be a “causal connection” between the conditions under which the work was required to be performed and the injury. Blake Construction Co. v. Wells, 245 Md. 282, 289 , 225 A.2d 857 (1967); Scherr v. Miller, 229 Md. 538, 543 , 184 A.2d 916 (1962); Consolidated Engineering Co. v. Feikin, 188 Md. 420, 425 , 52 A.2d 913 (1947); Schemmel v. T.B. Gatch & Sons Contracting & Building Co., 164 Md. 671, 683 , 166 A. 39 (1933). ⁵⁵⁵ On the other hand, the term “in the course of’ employment, refers to the time, place, and circumstances under which the accident occurs. King Waterproofing Co. v. Slovsky, 71 Md.App. 247, 251 , 524 A.2d 1245 (1987).

An injury arises in the course of employment “ “when it occurs during the period of employment at a place where the employee reasonably may be in the performance of his duties and while he is fulfilling those duties or engaged in doing something incident thereto.’ ” Huffman v. Koppers Co., 94 Md.App. 180, 185 , 616 A.2d 451 (1992), aff'd, 330 Md. 296 , 623 A.2d 1296 (1993), quoting Watson v. Grimm, 200 Md. 461, 466 , 90 A.2d 180 (1952). Accord Pariser Bakery v. Koontz, 239 Md. 586, 590 , 212 A.2d 324 (1965); Department of Correction v. Harris, 232 Md. 180, 184 , 192 A.2d 479 (1963). Ordinarily, based on the “going and coming rule,” an employee is not considered to be acting in the course of employment when travelling to or from work. Therefore, injuries suffered during such travel are usually not compensable.

Alitalia Linee Aeree Italiane v. Tornillo, 329 Md. 40, 44 , 617 A.2d 572 (1993); Wiley Manufacturing Co. v. Wilson, 280 Md. 200, 206 , 373 A.2d 613 (1977); Saylor v. Black & Decker Manufacturing Co., 258 Md. 605, 607-08 , 267 A.2d 81 (1970); Harrison v. Central Construction Corp., 135 Md. 170, 177 , 108 A. 874 (1919); Maryland Casualty Co. v. Lorkovic, 100 Md. App. 333, 345 , 641 A.2d 924 (1994). The rule is based on the notion that the Act does not protect employees against the common perils of life, see Sica v. Retail Credit Co., 245 Md. 606, 612 , 227 A.2d 33 (1967), and the dangers of ordinary commuting are dangers that are common to all people. Tavel v. Bechtel Corp., 242 Md. 299, 303 , 219 A.2d 43 (1966); Maryland Paper Products Co. v. Judson, 215 Md. 577, 584 , 139 A.2d 219 (1958). The “special mission or errand” doctrine, which first appeared in Maryland in Reisinger-Siehler Co. v. Perry, 165 Md. 191 , 167 A. 51 (1933), constitutes an exception to the “going and coming rule.” It provides that an employee is acting in the course of employment when travelling on a ⁵⁵⁶ special mission or errand at the request of the employer and in furtherance of the employer’s business, even if the journey is one that is to or from the workplace.

Huffman v. Koppers Co., supra, 94 Md.App. at 187, 616 A.2d 451 ; Richard P. Gilbert & Robert L. Humphreys, Jr., Maryland Workers’ Compensation Handbook § 6.7-2 at 113 (2nd ed.1993); Elmer H. Blair, Blair’s Reference Guide to Workmen’s Compensation Law § 9:17 at 9-65; 82 Am.Jur.2d Workers’ Compensation § 301 (1992). When the making of the journey, or the special degree of urgency or inconvenience under which the journey is made, is of such a character that the journey itself constitutes a substantial part of the service that the employee is rendering, an employee is considered to be acting in the course of employment. 1 Arthur Larson & Lex K. Larson, The Law of Workmen’s Compensation § 16.00 (1992). In 1973, the Court of Appeals recognized the special mission doctrine as part of Maryland law. See Director of Finance for the City of Baltimore v. Alford, 270 Md. 355, 364 , 311 A.2d 412 (1973) (“we shall settle the matter by holding that the special mission exception has indeed been the law of Maryland since Reisinger-Siehler”).

We, too, have articulated the special mission rule on several occasions. In Coats & Clark’s Sales Corp. v. Stewart, 39 Md.App. 10, 13 , 383 A.2d 67 (1978), we said: “A special errand or special mission is a trip undertaken by the employee at the request of an employer for the purpose of helping the employer’s business.” We added that, in all cases, an “essential characteristic” of a special mission “is that it would not have been undertaken except for the obligation of employment.” Id. In Fairchild Space Co. v. Baroffio, 77 Md.App. 494, 501 , 551 A.2d 135 (1989), we quoted Professor Larson’s formulation of the rule: The special errand rule may be stated as follows: When an employee, having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule, the journey may be brought within the course of employment by the fact that the trouble and time of making ⁵⁵⁷ 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. Id., quoting 1 Larson, Workmen’s Compensation Law § 16.11 (1985).

See also Huffman, supra, 94 Md.App. at 187, 616 A.2d 451 (reviewing the elements of the rule from previous cases). But in Fairchild Space Co. v. Baroffio, supra, 77 Md.App. at 499 n. 3, 551 A.2d 135 , we declined to address the question of whether an employee is on a special mission when the employee “is compelled to work on a day on which he or she does not normally work and, on that day, sustains injuries on the way to or leaving the place of employment.” Id. That is the issue before us in the case at bar. In deciding whether the special mission exception applies here, we focus on when a mission is sufficiently “special” to be brought within the ambit of the rule.

The resolution of this question requires the analysis of several factors. First, the court must consider “the relative regularity or unusualness of the particular journey.” 1 Larson & Larson, The Law op Workmen’s Compensation, supra, § 16.13 at 4-208.24. If the journey at issue is “relatively regular,” in the context of the employee’s normal duties, then “the case begins with a strong presumption” that the trip is not special and instead falls within the normal going and coming rule. Id. at 4-208.24, 4-208.26.

For example, in Mayor and City Council of Baltimore v. Jakelski, 45 Md.App. 7 , 410 A.2d 1116 (1980), in which we held that a police officer was not entitled to workers’ compensation benefits when he was injured while travelling from his home to traffic court, we focused on the fact that the officer made monthly trips to testify in support of traffic citations he had issued, thus making the trip a “regularly repetitive” part of his duties. Id. at 9, 11 , 410 A.2d 1116 . See also Richardson v. Pitts, 408 P.2d 327 (Okla.1965) (waitress injured while travelling to work on Sunday; waitress was ⁵⁵⁸ supposed to have Sundays off but actually worked on many Sundays; held, not compensable). Second, the court must consider “the relative onerousness of the journey compared with the service to be performed at the end of the journey.” Larson & Larson, supra, § 16.13 at 4-208.26.

Both of the variables in this comparison work in tandem. If the service that the employee must perform at the workplace is minuscule, while the employee’s trip to the workplace is long or otherwise onerous, then this factor would militate in favor of a conclusion that the mission is special. Professor Larson provides the following example: If a janitor walks five blocks to spend two hours working at a church in the evening, it would be difficult to conclude that the journey is a significant part of the total service. But if a janitor makes a longer journey merely to spend one instant turning on the lights, it is easier to say that the essence of the service was the making of the journey.

Id. Furthermore, the “onerousness” of the journey depends not only on its length but also on the circumstances under which it is made, i.e., the time of day, whether it is a regular workday, or the conditions of travel. See id. For example, in Reisinger-Siehler Co. v. Perry, supra, 165 Md. 191 , 167 A. 51 (1933), the special errand at issue occurred at midnight.

Third, the “suddenness” of the call to work or whether it was made under an “element of urgency” are also relevant factors. Larson & Larson, supra, § 16.13 at 4-208.26, § 16.15 at 4-208.39. See Fairchild Space Co. v. Baroffio, supra, 77 Md.App. at 501 , 551 A.2d 135 . When an employee must drop everything and travel to the workplace, this indicates that the travel itself could be part of the service rendered.

See Larson at 4-208.26 to 4-208.27. In Reisinger-Siehler, for example, the employee rushed to a store at which he was employed after hearing a report of a possible break-in. In Director of Finance v. Alford, supra, 270 Md. 355 , 311 A.2d 412 (1973), the Court cited the emergency situation as a factor in holding that a police officer was on a special mission when ⁵⁵⁹ he was injured while travelling early to work because of a special alert. Id. at 364 , 311 A.2d 412 .

Nevertheless, the suddenness of the call and the urgency of the trip are not dispositive. See Larson & Larson, supra, § 16.13 at 4-208.26 to 4-208.27. Rather, they are simply factors to consider in the overall analysis of “whether the journey was itself a substantial part of the service for which the claimant was employed and compensated.” Id. at 4-208.24, 4-208.26 to 4-208.27. Appellees argue that Barnes’s journey to the Hospital was insufficiently “special.” They assert, first, that the trip was not special because Barnes was ultimately responsible for the accounts receivable report.

Thus, they claim that production of the report was a “normal supervisory function” and a part of appellant’s duties. Second, appellees argue that Barnes was not on a special mission because the accounts receivable report was generated routinely at the same time each month. This routine, in appellees’ view, means that the journey to the Hospital was not special. Appellees also claim that Barnes was not on a special mission because her summons to work was not due to an “emergency” or unusual condition, because the accounts receivable report was always generated