Hodgson v. FLIPPO CONSTRUCTION CO., INC.

KRAUSER, J. The issue before us is whether the Maryland Workers’ Compensation Commission had jurisdiction over a workers’ compensation claim filed by Carlos Hodgson, a Maryland resident, against Flippo Construction Company, Inc., a Mary ²⁶⁵ land-based company, for an injury that he sustained at one of Flippo’s District of Columbia job sites. 1 Concluding that it did not, the Maryland Commission dismissed Hodgson’s claim. When that decision was affirmed by the Circuit Court for Prince George’s County, Hodgson noted this appeal, requesting that we resolve this jurisdictional issue in his favor. We cannot for the reasons set forth below. Background The facts are not in dispute.

Appellee, Flippo- Construction Company, Inc., hired Hodgson, a carpenter by trade, in Maryland, where it is headquartered and where Hodgson resides. For the first three years of his employment, from November 1995 through 1998, appellant worked almost exclusively at job sites in Maryland. That changed in 1999. From 1999 until the date of his accident, three years later, in 2001, appellant was principally assigned to District of Columbia job sites.

While employed chiefly in the District of Columbia, appellant continued to perform work in Maryland and Virginia. Appellant also traveled to Maryland two to three times a week, when requested to do so by his employer, to purchase supplies from Maryland vendors, after which he either delivered them to his D.C. job site the same day or kept them in his truck overnight at his Maryland apartment and delivered them the next morning. Appellant testified that he also periodically drove to Flippo’s headquarters in Forestville, Maryland, “to deliver checks and pick up some payrolls or whatever they sent [him] for.” And he attended meetings and classes at Flippo’s Maryland headquarters approximately three times a year. On December 7, 2001, appellant was injured while working at a company job site in the District of Columbia.

He filed a ²⁶⁶ claim for his injuries with both the Maryland Workers’ Compensation Commission and the District of Columbia Workers’ Compensation Commission. 2 Seeking dismissal of the Maryland claim, Flippo argued that the Maryland Commission did not have jurisdiction over appellant’s claim because his injury occurred in the District of Columbia where he had been working for most of the year preceding his injury. Flippo’s employment records indicated that, during the year before his injury, appellant spent approximately 1,195.5 hours or 60.29% of his total “fixed job site” time at D.C. job sites; 411.5 hours or approximately 20.75% of his total “fixed job site” time at Maryland job sites; and 215 hours, approximately 10.84% of his total “fixed job site” time at Virginia job sites. An additional 161 hours or 8.12% of his working time was attributed to “miscellaneous” jobs he performed in Maryland. Those jobs, appellant testified, included “remodeling] the office for the company” and “putting machine[s] together for construction.” After a hearing, the Maryland Workers’ Compensation Commission concluded that it did not have jurisdiction over appellant’s claim and dismissed it.

The Circuit Court for Prince George’s County agreed and affirmed that decision. Discussion Appellant contends that the circuit court erred in concluding that he was not a “covered employee,” under Md.Code (1991, 1999 Repl.Vol.), § 9-203(a) of the Labor and Employment Article (“L.E.”), and, as a consequence, that the Commission did not have subject matter jurisdiction over his workers’ compensation claim. That, of course, presents us with a question of statutory interpretation, requiring that we determine the scope of that section of the Workers’ Compensation Act. L.E. §§ 9-101 to 9-1201. ²⁶⁷ Before undertaking that task, we note that the Workers’ Compensation Act is remedial in nature and we are therefore required to “liberally construe[ ]” its provisions “in favor of injured employees” so as “to effectuate its benevolent purposes.” Subsequent Injury Fund v. Slater, 27 Md.App. 295, 300 , 340 A.2d 405 (1975).

Yet, we may not, in interpreting it, overstep its legislatively-drawn boundaries and grant coverage beyond that which is authorized by the plain language of its provisions. Barnes v. Children’s Hospital, 109 Md.App. 543, 554 , 675 A.2d 558 (1996). And that, as we shall see, is precisely what appellant entreats us to do and why we must reject his entreaty. Labor and Employment § 9-203 which, in conjunction with L.E. § 9-202, largely defines the Act’s coverage, plainly indicates, by its title and substance, that, in Maryland, the “site of ... employment” is the touchstone for determining whether an employee is covered by the Act.

McElroy Truck Lines, Inc. v. Pohopek, 375 Md. 574, 581 , 826 A.2d 474 (2003). That section states: L.E. § 9-203. Site of Employment (a) Except as otherwise expressly provided, an individual is a covered employee while working for the employer of the individual: (1) in this State; (2) outside of this State on a casual, incidental, or occasional basis if the employer regularly employs the individual within this State; or (3) wholly outside the United States under a contract of employment made in this State for the work to be done wholly outside of the United States. (b) (1) An individual is not a covered employee while working in this State for an employer only intermittently or temporarily if: (i) the individual and employer make a contract of hire in another state; (ii) neither the individual nor the employer is a resident of this State; ²⁶⁸ (iii) the employer has provided workers’ compensation insurance coverage under a workers’ compensation or similar law of another state to cover the individual while working in this State; (iv) the other state recognizes the extraterritorial provisions of this title; and (v) the other state similarly exempts covered employees and their employers from its law.

(2) If an individual is exempted from coverage under this subsection and injured in this State while working for the employer of the individual, the sole remedy of the individual is the workers’ compensation or similar law of the state on which the exemption is based. (3) A certificate from an authorized officer of the workers’ compensation commission or similar unit of another state certifying that the employer is insured in that state and has provided extraterritorial insurance coverage for the employees of the employer while working within this State is prima facie evidence that the employer carries that compensation insurance. (c) Except as otherwise expressly provided, an individual who is employed wholly outside of this State is not a covered employee. In brief, section (a) of L.E. § 9-203 defines who is covered by the Act and section (b) of L.E. § 9-203 defines who is not.

Therefore, to be eligible for Maryland workers’ compensation benefits, appellant must be a “covered employee” under one of the three subsections of L.E. § 9-203(a). While acknowledging that he was neither working for Flippo exclusively in Maryland, which would rendered him a “covered employee” under L.E. § 9 — 203(a)(1), nor working “wholly outside of the United States under a contract of employment made in [Maryland],” which would have granted him “covered employee” status under L.E. § 9 — 203(a)(3), appellant insists that he was a covered employee under § 9-203(a)(2). That subsection provides coverage for employees “ ‘regularly’ employed in Maryland while working outside of Maryland on a ‘casual, ²⁶⁹ incidental, or occasional basis.’ ” Fitzgerald v. R & R Trucking, Inc., 154 Md.App. 86, 92 , 838 A.2d 397 (2003). In determining whether an employee is “regularly employed” in Maryland for § 9-203(a)(2) purposes, factors such as where the claimant was hired, Pohopek, 375 Md. at 594 , 826 A.2d 474 ; whether the employment “arrangement eontemplat[ed] a regular presence” in the particular jurisdiction, id. at 592 , 826 A.2d 474 ; the “nature of the employer’s work,” id. at 586 , 826 A.2d 474 ; the “scope and purpose of the hiring,” id. at 587 , 826 A.2d 474 ; the “duration of the employment,” id.; the “consistency” of the claimant’s work in the particular jurisdiction, Fitzgerald, 154 Md.App. at 96 , 838 A.2d 397 ; and representations made by the employer as to where the claimant would be working, L.R. Willson & Sons v. Garrett, 76 Md.App. 120, 127 , 543 A.2d 875 (1988), may be relevant.

Two are not. Neither the claimant’s residence, Dixon v. Able Equipment Company, Inc., 107 Md.App. 541, 548 , 668 A.2d 1009 (1995), nor the site of the accident, see Pohopek, 375 Md. 574 , 826 A.2d 474 ; Fitzgerald, 154 Md.App. 86 , 838 A.2d 397 , is ipso facto relevant to that decision. With that in mind, we turn to the question of what authority does appellant cite, beyond the broad and inclusive language of the statute itself, in support of his claim. The answer is one case.

He relies exclusively on Pohopek, 375 Md. 574 , 826 A.2d 474 . And so does Flippo. Given that Pohopek presents one of the most recent and comprehensive discussions of the scope of § 9-203(a) in multi-jurisdictional cases and that its language, when selectively culled, can be placed in the service of either party’s stance, their common choice of authority for their conflicting positions is understandable. The Pohopek case received its first appellate review in Pohopek v. McElroy Truck Lines, Inc., 140 Md.App. 235 , 780 A.2d 383 (2001).

The issue before this Court was whether Pohopek, “a Maryland resident, employed as a truck driver by a trucking company based out of state, who was required to keep and maintain the company owned tractor-trailer truck in ²⁷⁰ Maryland on weekends, but whose employment involved traveling, during the week, to various states along the Eastern seaboard, including sometimes Maryland, for regular pickups and deliveries, [was] a ‘covered employee’” under § 9-203. 3 Pohopek, 375 Md. at 577 , 826 A.2d 474 . We found that he was “regularly employed” in Maryland, explaining: This Court has stated that “[t]he word ‘regular’ implies a uniform course of