CAM Construction Co., Inc. v. Beccio

MOTZ, Judge. This case presents the question of whether an employee’s use of a prescription drug may be considered in the evaluation of whether his on-the-job injury arose “out of and in the course of” his employment for the purposes of workers’ compensation. Because the use and effect of prescription drugs is relevant to the consideration of an employee’s eligibility for workers’ compensation, and since this evidence was excluded at trial, we reverse the judgment of the Circuit Court for Baltimore City. (i) In May 1987, appellee, Vincent J. Beccio (“Beccio”) was employed by appellant, CAM Construction, Inc. (“CAM”), as a superintendent for a construction project informally known as the “Baltimore City Jail project.” On June 17, 1987, at around 7:15 a.m., Beccio tripped and fell while walking down a dark corridor in the building under construction.

Because he was carrying blueprints, a tape measure, and other tools, Beccio was unable to break his fall; he hit his head on a wall and lost consciousness for about 10 minutes. After he was discovered by another ⁴⁵⁴ employee, he was taken by ambulance to the University of Maryland Hospital. While at the hospital, Beccio reported that earlier that morning he had taken one pill known as Dantrium, a muscle relaxant. The hospital report included the following information as recounted by Beccio to the physician on duty: Tenderness in his legs with toe walking over the past two months.

Claims he was given Dantrium by his physician and took his first pill this a.m. Thirty minutes later he became unbalanced, and fell forward striking his face and losing consciousness for several minutes. Claims he couldn’t move all his limbs for “five minutes” and then noticed his [left] side was weak ... No prior similar episodes.

The Dantrium had been prescribed in 1987 to treat Beccio’s life-long “toe-walking” disorder, a condition which caused him to walk on his toes and lean forward. Among the side effects of Dantrium are drowsiness, dizziness, weakness, general malaise, fatigue and diarrhea. 1 The toe-walking condition affected Beccio’s stride to varying degrees and usually for only short periods of time. When he was not actually “toe-walking,” Beccio stepped with a “slight limp” or an “awkward gait”, which was attributable at least in part to two operations on his hip in 1970 and 1976. Beccio filed a claim with the Workers’ Compensation Commission (“the Commission”) on September 10, 1987, alleging that he had sustained an accidental injury arising out of and in the course of his employment.

The claim was heard before the Commission on contested issues filed by CAM and by Travelers Indemnity Company (collectively, “the employer”). On March 16, 1988, the Commission ruled that Beccio had sustained an accidental injury arising out of and in the course of his employment on June 17, 1987. ⁴⁵⁵ The employer filed a motion for rehearing, asserting that (1) “several medical reports regarding the initial examination of Mr. Beccio were not admitted by either counsel”; (2) Beccio’s counsel “had argued that medical testimony was necessary to indicate the effect of the Dantrium upon his client and [the] attached medical reports do so”; and (3) the Commission’s prior holding was “against the weight of the evidence presented in the hearing.” The motion was granted, and on July 8, 1988, after rehearing, the Commission rescinded its prior order and ruled that Beccio did not sustain an accidental injury arising out of and in the course of his employment. Beccio appealed this decision to the Circuit Court for Baltimore City. On January 14, 1991, Beccio filed a motion for summary judgment, arguing inter alia, that Dantrium was administered and taken in accordance with a physician’s prescription and Beccio’s injury did not occur solely from his idiopathic condition. 2 Beccio asserted that Md.Ann.Code art. 101, § 45 (1985), which excluded coverage for persons who are injured solely as a result of intoxication or the effect of a narcotic, depressant, stimulant, hallucinogenic, or other drug, did not preclude coverage for him, because it specifically excepts from this exclusion drugs which have been “administered or taken in accordance with a physician’s prescription.” On February 20, 1991, the circuit court entered partial summary judgment in favor of Beccio and issued a brief, handwritten explanation for this decision, which stated: Claimant’s motion [for] summary judgment is granted in part only on the limited issue of § 45. [Section] 45 means that if the sole cause of injury is prescription drug the ⁴⁵⁶ injury is compensable.

Liberal construction to the claimant by statute. (emphasis in original.) In response to this ruling, the employer filed a motion for reconsideration, which was heard on May 31, 1991, the first day of the trial. A different trial judge denied the motion for reconsideration. Prior to the trial, Beccio also submitted a motion in limine seeking to redact any reference to the drug Dantrium in the medical records submitted as evidence at trial as well as to prohibit testimony at trial regarding the drug.

The trial court granted the motion, “as it relates to any defense [by the employer] on the issue of the drug Dantrium being a substantial factor as to the cause of the accident.” The court withheld ruling on “any other references to the drug as it may apply to impeachment or credibility of [Beccio]” during direct or cross examination. The case proceeded to trial. Beccio testified that, on the day of the accident, his walking was “perfectly normal,” which, for him, was with his regular limp. His fall, he explained, was caused by his tripping over debris that he could not see due to the darkness of the hallway in which he was walking.

His injury was exacerbated, he said, by his inability to catch his fall, due to the tools of his trade which he carried in his hands and arms. In addition to Beccio's testimony, the jury heard the testimony of Charles Hartman, a carpenter who worked at the construction site where Beccio was injured and who discovered Beccio lying on the floor after his fall. Hartman, who no longer worked for CAM but who had not been fired by the company and who had no friendship with Beccio or anything to be gained by testifying for him, testified that Beccio “was moaning and calling my name.” Hartman found Beccio “kind of laid back against the wall and there was blueprints all over the floor and I notice[d] blood coming off his head.” Hartman described the setting of the hall where Beccio fell, explaining that “there was very little light coming from the office door, and there was ⁴⁵⁷ one light just about at the end of the corridor ... It was like walking from outside in the sunlight into a very dim room.” In addition, he said that there was “not quite enough light to see where you were going.” Hartman further testified that “there was some busted up concrete, some debris on the floor” of the hallway.

Lastly, Hartman testified that, on the morning of the accident, Beccio was walking with his normal “limp.” The defense presented two witnesses. First, Melvin Lapp, another superintendent employed by CAM for the Baltimore City Jail project, who was a long-time CAM employee, testified that, while he was not present at the construction site on the day of Beccio’s accident, he was very familiar with the project. The hallway where Beccio fell, Lapp said, was “well lit” and, to his knowledge, no one had ever complained about the lighting. Second, James McGarrity, Vice President of CAM, testified that, when he interviewed Beccio in May 1987 for the superintendent’s position, he asked Beccio whether his walking condition “would in any way hinder his position as a job site superintendent.” Beccio “indicated that it wouldn’t ...

I also did not think that it would,” McGarrity said. McGarrity further testified that, while he was not at the construction site on the day of Beccio’s accident, he was familiar with the project. According to McGarrity, “the lighting was sufficient to travel through the corridor” in which Beccio fell; numerous workers passed through the hallway during construction without any problem, he said. During the trial, there was no mention of Beccio’s use of the drug Dantrium.

There was, however, reference to his walking condition; for example, Beccio admitted that he sometimes used a cane for a problem with his hip, and that, on a few previous occasions due to his “toe-walking” condition, his legs had “buckled,” causing him to fall. The jury was properly instructed that “an injury to be compensable must not only be sustained in the course of employment but must also arise out of employment.” It was further cor ⁴⁵⁸ rectly instructed as to the meaning of these terms. 3 Charged to respond to the question of whether Beccio’s injury arose “out of and in the course of his employment,” the jury returned in less than 15 minutes with a verdict in Beccio’s favor, i.e., that the injury did arise out of, and in the course of, his employment. The employer now appeals, asserting that the circuit court erred in: (1) its initial holding that if the sole cause of injury was a prescription drug, “the injury is compensable,” and in (2) its subsequent refusal to permit the jury to hear evidence of Beccio’s use of Dantrium. (ii) We are asked here to address the combined effect of two statutes having to do with an employee’s eligibility for workers’ compensation.

First, Md.Ann.Code art. 101, § 15, in effect on the date of Beccio’s accident, states in pertinent part: Every employer subject to the provisions of this article, shall pay or provide as required herein compensation according to the schedules of this article for the disability or death of his employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of his employment without regard to fault as a cause of such injury, except where the injury is occasioned by willful intention of the injured employee to bring about the injury or death of himself or of another, or where the injury results solely from the intoxication of the injured employee while on duty or solely from the effect upon him of any narcotic, depressant, stimulant, hallucinogenic or hypnotic drug or from the effect upon him of any other drug which renders him incapable of satisfactorily performing his job except when such drug has been administered or taken in accordance with a physician’s prescription. Where the injury ... results ⁴⁵⁹ solely from intoxication of the injured employee while on duty or solely from the effect upon him of any narcotic, depressant, stimulant, hallucinogenic or hypnotic drug or from the effect upon him of any other drug which renders him incapable of satisfactorily performing his job, neither the injured employee nor any dependent of such employee shall receive compensation under this article, (emphasis added). 4 This central provision of the workers’ compensation law imposes liability upon an employer only where ⁴⁶⁰ there is a causal connection between the accidental injury and the employment; the accidental injury must be substantially contributory, though it need not be the sole or proximate cause. Watson v. Grimm, 200 Md. 461, 465 , 90 A.2d 180 (1952); Austin v. Thrifty Diversified, 76 Md.App. 150, 157 , 543 A.2d 889 (1988). An injury is said to “arise out of” employment when it results from some obligation, condition or incident of employment.

King Waterproofing Co. v. Slovsky, 71 Md.App. 247, 252 , 524 A.2d 1245 (1987) (citing Scherr v. Miller, 229 Md. 538, 543 , 184 A.2d 916 (1962); Pappas v. Modern Mfg. Co., 14 Md.App. 529, 532 , 287 A.2d 798 , cert. denied, 265 Md. 741 (1972)). 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 or her duties and while he or she is carrying out those duties or something incident thereto. King Waterproofing, 71 Md.App. at 252 , 524 A.2d 1245 .

The words “out of the employment” and “in the course of the employment” are not synonymous and, since they are used conjunctively, they must both be satisfied in order to be awarded workers’ compensation. Watson, supra, 200 Md. at 465 , 90 A.2d 180 . On the other hand, these two requirements need not necessarily be applied independently; “they are both parts of a single test of work-connection, and therefore deficiencies in the strength of one factor are sometimes allowed to be made up by strength in the other.” King Waterproofing, supra, 71 Md.App. at 252 n. 4, 524 A.2d 1245 (affirming award of workers’ compensation to employee injured when struck by an automobile while crossing the street during coffee break) (quoting A. Larson, The Law of Workmen’s Compensation, § 29.00 (1985) (“Larson”)). The language of § 15 that excludes from coverage injuries that are