Gravette v. Visual Aids Electronics

SALMON, J. This appeal concerns a workers’ compensation claimant who, when injured, was a “traveling employee.” The term “travel ⁶⁸⁷ ing employee” as used in workers’ compensation cases means an employee who is required to travel away from his employer’s premises in order to perform his job. Venture-Newberg Perini Stone and Webster v. Illinois Workers’ Compensation Commission, 367 Ill.Dec. 363 , 981 N.E.2d 1091 , 1095 (Ill.App., Fourth Dist.2012). The issue presented is whether the injury suffered by the traveling employee in this case arose out of and in the course of his employment. The seminal case in Maryland involving the compensability of an injury suffered by a traveling employee is Mulready v. University Research, 360 Md. 51 , 756 A.2d 575 (2000).

Mulready involved a traveling employee who slipped and fell while taking a shower in a hotel room. Id. at 53 , 756 A.2d 575 . The Mulready Court concluded that the slip and fall injury arose out of the worker’s employment and was compensable. Id. at 66 , 756 A.2d 575 .

In reaching this conclusion, the Court announced the rule to be applied in traveling employee cases, viz: Absent facts indicating a distinct departure by the employee on a personal errand that would not be in the contemplation of the parties, an injury to a traveling employee generally is compensable so long as it occurred as a result of an activity reasonably incidental to the travel that the employer required. Thus, even injuries suffered by traveling employees as a result of common perils of everyday life or as a result of purportedly personal acts generally are compensable. Inasmuch as, under ordinary circumstances, a traveling employee’s eating and bathing are reasonably incidental to the travel required by the employer, injuries resulting from these activities are compensable. Reverting to the terminology that we have used to describe the cases reviewed above, the rule which we adopt is substantially the positional-risk test, as opposed to the increased risk test.

Id. at 66 , 756 A.2d 575 . Earlier in the Mulready opinion, 360 Md. at 59 , 756 A.2d 575 , the Court quoted with approval from Olinger Construe ⁶⁸⁸ tion Company v. Mosbey, 427 N.E.2d 910 (Ind.Ct.App., 1981) as follows: The increased risk test requires that “the employee be exposed to a quantitatively greater degree of risk than the general public.” Id. at 913 . Under the positional-risk test, “an injury arises out of employment if it would not have occurred if the employee’s job had not required him to be in the place where he was injured.” Id. This case sub judice has at least two important features also found in Mulready .

The claimants in both cases were injured at a hotel where the worker was assigned by an employer to work on a temporary basis. Also, as in Mulready , here the claimant was off-duty when the accident occurred. But in this case, unlike Mulready , the employee slipped and fell on a dance floor located in the hotel, rather than in his assigned hotel room. The question to be decided boils down to whether engaging in a recreational activity like dancing while on premises where the employee is assigned to stay, is an activity [like eating in a hotel restaurant or taking a shower], “reasonably incidental to the travel required by the employer[.]” Mulready, 360 Md. at 66 , 756 A.2d 575 .

The Maryland Workers’ Compensation Commission (“the Commission”) and the trial judge in this matter, answered that question in the negative. For the reasons set forth below, we hold a contrary view and shall reverse the judgment entered by the circuit court. I. Dallas E. Gravette was injured on July 10, 2011 in Prince George’s County. At the time of his injury he was an employee of one of the appellees in this case, Visual Aids Electronics (the “employer”). 1 Mr. Gravette filed a workers’ compensation claim as a result of his fall, after which an evidentiary hearing was held before the Commission.

The ⁶⁸⁹ Commission filed an order denying the claim on the grounds that Mr. Gravette “did not sustain an accidental injury arising out of and in the course of employment as alleged to have occurred on July 10, 2011.” Mr. Gravette filed a petition for judicial review of the Commission’s decision in the Circuit Court for Prince George’s County. Gravette’s case was heard, non-jury, on January 31, 2013. The parties stipulated to all the facts that were relevant to the sole issue before the circuit court, which was, “Did the July 10, 2011 accident arise out of and in the course of Gravette’s employment?” Set forth below in part II is a summary of the undisputed facts.

II

Visual Aid Electronics (“employer”) is in the business of providing “audio visual equipment, including computer equipment, and technical staff to set up and service the equipment in ... hotels and convention centers.” Prior to the accident, the employer contracted to provide its services to a customer at the Gaylord National Resort and Convention Center (hereafter “the Gaylord Center”) located in Prince George’s County. Mr. Gravette, at all times here pertinent, was a resident of Idaho. To fulfill its contract to provide equipment and services at the Gaylord Center, the employer made arrangements for Mr. Gravette to stay at the Gaylord Hotel, which is part of the Gaylord Center. Gravette’s employer paid for Gravette’s travel expenses from Idaho to Maryland and for the price of his hotel room.

Mr. Gravette was assigned to work at the hotel on behalf of his employer, and to stay there between July 7 and July 16, 2011. On July 10, 2011, the date of his injury, Gravette worked at the hotel between 7:00 a.m. and 3:00 p.m. as an audio visual technician for his employer. The accident occurred at the Pose Ultra Lounge & Nightclub (hereafter “the Nightclub”), which is a facility located in the Gaylord Hotel. Gravette was injured at about midnight on July 10, 2011. ⁶⁹⁰ Entry into the Nightclub is restricted to persons registered at the Gaylord Hotel and their guests.

Gravette, while off-duty, was dancing when he slipped on some liquid on the dance floor and fell, injuring his pelvis. There was no indication that Gravette was intoxicated at the time he was injured. Gravette was not in the Nightclub at the request or direction of his employer nor was he engaged in any “specific activity that was for the benefit” of his employer.

III

The trial judge concluded, in a written opinion, that Gravette’s injuries were not compensable. The trial judge explained: After review of Mulready and the cases cited therein, this Court concludes that [Gravette] is not entitled to workers’ compensation benefits. Mulready determined that injuries “incidental to the travel requested by employer” such as eating and bathing are compensable. Mulready, supra at 66 [ 756 A.2d 575 ].

Further, “a distinct departure by the employee on a personal errand that would not be in the contemplation of the parties” is not compensable. Id. at 66 [ 756 A.2d 575 ]. These distinctions are made on a case by case basis. This Court concludes, based on the facts of this case, that [Gravette’s] act of going to the Nightclub and dancing was not “reasonably incidental to the travel required by the employer.” Id. at 66 , 756 A.2d at 582 .

The activity in this case is distinguishable from examples of eating and bathing as necessary activities incidental to travel, as delineated by the Court of Appeals, which would be “in the contemplation of the parties” when an employee goes on a business trip. This Court concludes, however, that dancing at a nightclub with individuals who are not clients of [the employer] is not incidental and would not be in contemplation of the parties. This is a purely personal errand by [Gravette] and not something that would be anticipated by [the employer]. This falls outside the spectrum of necessary activities that ⁶⁹¹ are incidental to travel.

Therefore, [Gravette] did not sustain an injury arising out of and in the course of his employment and is not entitled to workers’ compensation benefits.

IV

Analysis A. Standard of Review Our review of workers’ compensation proceedings is governed by Md.Code, Labor & Employment Article (2008 Repl. Vol.) § 9-745, which provides, in relevant part, as follows: (b) Presumption and burden of proof.—In each court proceeding under this title: (1) the decision of the Commission is presumed to be prima facie correct; and (2) the party challenging the decision has the burden of proof. (c) Determination by court.—The court shall determine whether the Commission: (1) justly considered all of the facts about the accidental personal injury, occupational disease, or compensable hernia; (2) exceeded the powers granted to it under this title; (e) Disposition.—(1) If the court determines that the Commission acted within its powers and correctly construed the law and facts, the court shall confirm the decision of the commission. (2) If the court determines that the Commission did not act within its powers or did not correctly construe the law and facts, the court shall reverse or modify the decision or remand the case to the Commission for further proceedings.

The presumption set forth in section 9-745(b) that the decision of the Commission is correct, is inapplicable when, as here, there are no disputed factual issues and therefore the court is presented solely with a question of law. See Wat ⁶⁹² Mart Stores, Inc. v. Holmes, 416 Md. 346, 357 , 7 A.3d 13 (2010). Likewise, when, as in the present case, the trial judge’s decision is based exclusively on a question of law, an appellate court gives no deference to the trial court’s decision but instead simply examines that decision for “legal correctness.” Id. at 358, 7 A.3d 13 . B. The Merits Prior to the Mulready case, this Court considered a claim for workers’ compensation by a claimant who was required by his employer to attend a conference at the Mayflower Hotel in Washington, D.C. Klein v. Terra Chemicals International, Inc., 14 Md.App. 172, 174 , 286 A.2d 568 (1972).

The employer agreed to pay its employee’s [George Klein] expenses while at the convention, which was expected to last several days. Id. While eating dinner at the hotel dining room on the first night of the convention, Klein choked on a piece of meat and, shortly thereafter, died. Id.

We held that the injury was not compensable and applied, in essence, the increased-risk test. Under that test, to be compensable, “the causative danger must be peculiar to the work and not common to the neighborhood; it must be incidental to the character of the business and not independent of the relation of master and servant.” Id. at 176 , 286 A.2d 568 . In Mulready , the Court explicitly “disapproved” of our decision in Klein, 360 Md. at 66 , 756 A.2d 575 . The Court’s ruling in Mulready was in accord with the majority rule in this county concerning compensability of injuries suffered by traveling employees.

That majority rule was summarized in 2A Larson & L.K. Larson, Larson’s Workers’ Compensation Law § 25.01 at 1-2 (2000) (hereinafter “Larson’s ”). The Mulready Court quoted with approval what was said in section 25.01 of Larson’s as follows: Employees whose work entails travel away from the employer’s premises are held in the majority of jurisdictions to be within the course of their employment continuously during the trip, except when a distinct departure on a personal errand is shown. Thus, injuries arising out of the ⁶⁹³ necessity of sleeping in hotels or eating in restaurants away from home are usually held compensable. 360 Md. at 55 , 756 A.2d 575 . (Footnote omitted).

In Mulready , Judge Rodowsky, speaking for the Court, cited six cases from sister jurisdictions that followed the majority rule as set forth in Larson’s, viz: In each of the cases cited and described below workers’ compensation was awarded to or on behalf of an employee who was traveling on the employer’s business. In each case the award was made under a statute which required that the injury arise out of the employment in order to be compensable. In each case the employee was not actively engaged in the employer’s business at the time of injury, but the employee suffered the injury on premises, distant from the employee’s home, where the employee was staying in order to carry out the employer’s business. See Peterson v. Industrial Comm’n, 16 Ariz.App. 41 , 490 P.2d 870 (1971) (employee suffocated in his sleep when head caught between the slats of rooming house bed); American Airlines v. LeFevers, 674 So.2d 940 (Fla.Dist.Ct.App.1996) (flight attendant, on layover, injured when diving into hotel swimming pool); Brown v. Palmer Constr.

Co., 295 A.2d 263 (Me.1972) (injury caused by gas stove explosion in rental apartment near work-site while employee preparing a meal during off hours); Souza’s Case, 316 Mass. 332 , 55 N.E.2d 611 (1944) (employee killed in hotel fire during night); Employers’ Liab. Assurance Corp. v. Warren, 172 Tenn. 403 , 112 S.W.2d 837 (1938) (employee fatally injured during early evening when he tripped and fell from hotel porch); Southern Motor Lines Co. v. Alvis, 200 Va. 168 , 104 S.E.2d 735 (1958) (employee killed in fall from hotel window during nighttime). Mulready, 360 Md. at 61-62 , 756 A.2d 575 . Of the six cases mentioned, in the excerpt just quoted, only one involves an employee engaged in a recreational activity when injured, i.e., American Airlines v. LeFevers, 674 So.2d 940 (Fla. 1st Dist.

Court of Appeals (DCA) 1996). In the ⁶⁹⁴ American Airlines case, the claimant, Sheree LeFevers, was employed by American Airlines as a flight attendant. Id. at 941 . Ms. LeFevers, on June 28, 1994, flew from Atlanta to Miami, and, after a layover, from Miami to the Dominican Republic.

At that point, airline rules required that she be on layover status for at least ten hours. Ms. LeFevers, along with the rest of the flight crew, were driven to the Flamingo Resort Hotel in the City of Puerto Plata where they each had rooms paid for by the airline. Id. at 941-42 . Ms. LeFevers arrived at the hotel at 9:30 p.m., took a shower, changed into a bathing suit, and went down to the hotel pool along with another flight attendant.

Id. at 941-42 . She then dove into the pool, hit her head, and was severely injured. Id. at 942 . As a result of her injury, Ms. LeFevers filed a workers’ compensation claim in Florida, where she resided.

At the workers’ compensation hearing she explained that, “because she ha[d] a pool in the back yard where she lives, it was not unusual for her to dive into a pool.” Id. at 942 . She further testified “that she went swimming at the hotel to relax because she had been up since 4:00 a.m.” on the date of the accident. Id. In the American Airlines case, the court ruled that the workers’ compensation claims judge had before him competent evidence to support his ruling that the injury was compensable. 2 Id. at 943 .

Another case from the same court that decided American Airlines v. LeFevers that involved a traveling airline employee who was engaged in recreational activities when injured is Gray v. Eastern Airlines, Inc., 475 So.2d 1288 (Fla. 1st DCA 1985). In Gray , the claimant worked for Eastern Airlines and was injured during a two-day layover in Rochester, New York. ⁶⁹⁵ The airline paid for the claimant’s lodging at a Holiday Inn during the layover. While a guest at the Holiday Inn, the claimant went to a nearby YMCA to play basketball. Holiday Inn guests were entitled to use the YMCA without becoming members, although they were required to pay a $4 entrance fee for each day of use.

Id. at 1289 . During the basketball game, the claimant broke his nose, and later filed a workers’ compensation claim against his employer. 3 In Gray , the claimant’s request for workers’ compensation benefits was denied by the Workers’ Compensation Deputy Commissioner, but the Florida appellate court reversed that decision. Id. at 1288 . In Gray , the court said: The parties do not reference any closely analogous Florida case involving a traveling employee injured while engaging in sports activity.

But compensation for such an employee injured in personal recreation was awarded in Blakeway v. Lefebure Corp., 393 So.2d 928 (La.App. 4th Cir.1981). The claimant in that case was injured when he dived into the shallow part of a motel swimming pool during a two-week training seminar paid for by his employer. In reversing a lower court’s denial of benefits, Blake-way held: The employer had to contemplate that plaintiff and the other employees would participate in some recreation during their two-week stay for the seminar. One could hardly expect these employees to retire to their rooms and remain practically immobile on each day when the classes ended ...

Plaintiff was not merely pursuing his own business or pleasure because he was entitled to some reasonable recreation as a part of his employer’s business of having to remain in a motel in Cedar Rapids, Iowa, for two weeks ... ⁶⁹⁶ Our cases have clearly recognized the general rule that an employee whose work entails travel away from the employer’s premises remains within the course of employment except when “there is a distinct departure for a nonessential personal errand.” N & L Auto Parts v. Doman, 111 So.2d 270, 271 (Fla. 1st DCA 1959). An employee’s motel during such travel status has also been deemed to be his place of employment. Hardaway Construction Co. v. Brooks, 416 So.2d 837 (Fla. 1st DCA 1982). A foreseeable, nonprohibited, off-premises refreshment break has not been considered to be a deviation removing a claimant from the course and scope of employment.

Holly Hill Fruit Products, Inc., v. Krider, 473 So.2d 829 (Fla. 1st DCA 1985). Entitlement to compensation would therefore appear to be reasonably arguable for claimant in the present case if he had incurred his injury in a store or restaurant while purchasing necessary food or drink. See Cunningham v. Scotty’s Home Builders, 9 FCR 1 (1973), cert. denied. 307 So.2d 182 (Fla.1974). We conclude that for the claimant in this case, under the circumstances here in question including an enforced lay-over of more than minimal duration, exercise at a nearby facility should be regarded as necessary for the same reasons underlying extension of course of employment in the foregoing cases to other activities reasonably required for personal health and comfort. 475 So.2d at 1289-90 .

(footnote omitted)(emphasis added). The same appellate court that decided the American Airlines and Gray cases, makes clear in Eastern Airlines v. Rigdon, 543 So.2d 822 (Fla. 1st DCA 1989) that not all injuries suffered by a traveling employee while engaged in recreational activities are compensable; instead, only those activities that are reasonable and foreseeable are compensable. Id. at 823 . On that basis, the Rigdon court held that a traveling employee (a flight attendant on a 24-hour layover) who was injured while downhill skiing at a lodge 58 miles from the claimant’s hotel, was not entitled to compensation.

Id. at 822 . Distinguishing Gray , the court said: “We cannot conclude in the instant case that a 58-mile day-trip to pursue one’s love of ⁶⁹⁷ skiing is either a minimal deviation or a reasonable and foreseeable activity, especially in light of the nature of the sport of skiing[,] which involves a great amount of risk.” Id. at 823. Among the eases cited by appellees in support of their position that appellant’s injury was not compensable is Houck v. Tarragon Management, Inc., 4 So.3d 73 (Fla. 1st DCA, 2009). Houck is also a case applying Florida law.

In Houck , an employee who lived in Jacksonville, Florida was selected by her employer to attend a training session in Ft. Lauderdale, Florida. Id. at 74 . The training session was to commence on Monday morning, September 9, 2002, and to last the entire week.

Id. at 75 . The employee, for personal reasons, decided to arrive at the conference site two days early to spend time with a friend. Id. at 75-76 . After settling in at her employer-provided residence, the employee went window shopping and dancing.

Id. at 75 . She left the nightclub where she had been dancing at 2 a.m. [on Sunday] and was fatally injured when she was struck by a motor vehicle while crossing a street. Id. The Houck court held that the employee (Ellen Houck) did not fit into the category of a traveling employee.

The court explained: Under the general rule, where an employee, as part of her duties, must remain in a particular place or locality until directed otherwise, or for a specified length of time, such an employee is not expected to wait immobile, but may indulge in any reasonable activity at that place, and if she does so, the risk inherent in such activity is an incident of employment. See Garver v. E. Airlines, 553 So.2d 263, 267 (Fla. 1st DCA 1990). The test as to whether a specific activity is considered to be within the scope of employment or purely personal is the reasonableness of the activity. Furthermore, a traveling employee may satisfy physical needs, including relaxation.

Id. One sees a common strain in “traveling employee” cases-either a forced layover or a period of “down time” during a business trip in a location subject to the employer’s requirements. The most prevalent example finds a flight attendant ⁶⁹⁸ away from home, in between assignments. See, e.g., Am.

Airlines v. LeFevers, 674 So.2d 940, 942 (Fla. 1st DCA 1996); Garver, 553 So.2d 263 ; Gray v. E. Airlines, 475 So.2d 1288 (Fla. 1st DCA 1985). Here, Ellen, although on a trip, was not a “traveling employee” when the accident occurred. For purely personal reasons, Ellen decided to fly to Ft. Lauderdale on the Saturday before her business responsibilities were to commence the following Monday morning.

She planned early travel in order to spend Saturday night, and all day Sunday, engaged in purely leisure activities with a friend. Thus, unlike a flight attendant obligated to remain away from home in between assignments, Ellen’s presence in Ft. Lauderdale at the time of the accident was purely voluntary. That she engaged in an impromptu business discussion over dinner did not alter her status.

Because Ellen did not fall into the category of “traveling employee” at the time of the accident, the general rule applicable to such employees did not apply to her. With reference to the statute, no requirement of the [Employer] led Ellen to Ft. Lauderdale on Saturday. Id. at 75-76.

(Emphasis added). As can be seen, the Houck court reiterated the reasonable activity test enunciated in prior Florida cases. Id. Houck, however, is not a case that supports appellees’ position.

First, the court did not indicate that going dancing was an unreasonable activity as appellees seem to suggest. 4 More important, ⁶⁹⁹ in the case at bar, the claimant was indisputably a “traveling employee” when the injury occurred, whereas in Houck the claimant was not. In the case of McCann v. Hatchett, 19 S.W.3d 218 (Tenn. 2000), the Tennessee Supreme Court considered whether the death by drowning of a traveling employee was compensable. Donald King was employed by a company that was based in Memphis, Tennessee. Mr. King, and some other employees were sent by their employer to lay carpet at a motel in Rutland, Vermont.

Id. at 220 . While in Rutland, Mr. King, at his employer’s expense, stayed at a Days Inn motel. Id. While off duty, at approximately 10 p.m., Mr. King drowned in the Days Inn pool.

Id. The exact circumstances of Mr. King’s death were not disclosed in the opinion. A representative of Mr. King’s estate sought workers’ compensation benefits for Mr. King’s son plus reimbursement of funeral expenses. The employer filed a summary judgment motion contending that the drowning death was not compensable because it did not arise out of or in the course of King’s employment.

Id. The McCann court, in rejecting the employer’s argument, commenced its analysis by reviewing previous Tennessee cases, viz: In the following cases, the Court found that the traveling employee’s injury or death arose out of and in the course of the employment: Pool v. Metric Constructors, Inc., 681 S.W.2d 543 (Tenn.1984) (Tennessee employee injured in vehicle accident returning home after having worked in Mississippi); Watson v. United States Fire Ins. Co., 577 ⁷⁰⁰ S.W.2d 668 (Tenn.1979) (East Tennessee-based employee injured in vehicle accident en route to training program in West Tennessee); West Tennessee Nix-A-Mite Sys., Inc. v. Funderburk, 208 Tenn. 381 , 346 S.W.2d 250 (1961) (employee killed in vehicle accident after having deviated from usual route for personal reasons); Gregory v. Porter, 204 Tenn. 582, 322 S.W.2d 591 (1959) (employee killed in vehicle accident returning home from out-of-town trip on employer’s business); Carter v. Hodges, 175 Tenn. 96 , 132 S.W.2d 211 (1939) (Tennessee employee killed in hotel fire in Georgia while on business of employer); Employers’ Liability Assurance Corp. v. Warren, 172 Tenn. 403 , 112 S.W.2d 837 (1938) (employee’s fall from hotel’s second-story porch caused fatal injuries). In contrast, the Court found in the following cases that the traveling employee’s injury or death did not arise out of and in the course of the employment: Isabell v. Ren Corp., No. 01S01-9301-CV-00003, 1993 WL 835552 , at ¹ (Tenn.

Aug 26, 1993) (Tennessee employee working in Florida injured knee when she slipped and fell leaving restaurant after dinner); Smith v. Royal Globe Ins. Co., Inc., 551 S.W.2d 679 (Tenn.1977) (Tennessee employee injured in vehicle accident returning home from Virginia job site); Knox v. Batson, 217 Tenn. 620 , 399 S.W.2d 765 (1966) (employee working away from home killed by “lethal gas” in motel room); Timmerman v. Kerr Glass Mfg. Co., 203 Tenn. 543 , 314 S.W.2d 31 (1958) (Tennessee employee lolled on weekend trip en route from Kentucky job site to Memphis); Jackson v. Clark & Fay, Inc., 197 Tenn. 135 , 270 S.W.2d 389 (1954) (Tennessee employee working in Arkansas killed by tornado while riding in employer’s truck from job site to motel); Underwood Typewriter Co. v. Sullivan, 196 Tenn. 238 , 265 S.W.2d 549 (Tenn.1954) (Tennessee employee training in Oklahoma killed in vehicle accident on day off); Lumbermen’s Mut. Cas.

Co. v.