King Waterproofing Co. v. Slovsky

KARWACKI, Judge. Kenneth C. Slovsky, the appellee, was awarded workers’ compensation under the provisions of Md.Code (1985 Repl. Yol.), Article 101, 1 for disability resulting from injuries sustained when he was struck by an automobile while crossing a public highway during a mid-shift break in his employment. We are now asked to consider a question that both the Workmen’s Compensation Commission (The Commission) and the Circuit Court for Baltimore County an ²⁴⁹ swered in the affirmative: whether the claimant’s disability resulted from an accidental injury “arising out of and in the course of his employment.” At the time of his injury, the claimant was employed on a part-time basis as a telephone solicitor for appellant King Waterproofing Company (King).

He worked a four hour shift from 4:00 to 8:00 in the evening, which included a paid break. On December 19, 1984, the claimant took his break at approximately 6:30 p.m. and left King’s offices on Ellen Road near Liberty Road in Baltimore County. An automobile struck the claimant shortly thereafter while he was attempting to cross Liberty Road. At the hearing before the Commission, the parties agreed that the claimant’s work shift included a paid break of 10 to 15 minutes in duration.

On the evening he was injured, he left his work place during his break to go to a carry-out restaurant, located across Liberty Road from his employer’s premises, where he planned to purchase some food and drink for himself. Although the claimant could not remember whether he had been asked on that particular occasion to pick up food or drink for any of his co-workers, it was agreed that he had picked up refreshments for his fellow employees in the past. Among those for whom he had performed this service was his supervisor. The claimant conceded that he was not required to go out for refreshments as part of his job; rather, he would do so as a favor to his co-workers, who would reciprocate by sometimes bringing back refreshments for him.

In addition, he testified that there was a sink with running water on the premises in King’s offices, but no water fountain or soda machine. The Commission found that the claimant had sustained an accidental injury arising out of and in the course of his employment on December 19, 1984, and ordered King and its insurer to pay compensation in accordance with that finding. Feeling aggrieved by the Commission’s decision, King and its insurer noted an appeal to the Circuit Court for Baltimore County pursuant to § 56. Prior to the sched ²⁵⁰ uled trial date, the claimant filed a motion for summary judgment.

Citing the record of the Commission proceedings, the claimant asserted that there was no genuine dispute as to any material fact and that the Commission was correct as a matter of law in finding that he sustained an accidental injury arising out of and in the course of his employment. At the hearing on that motion the employer and its insurer answered the motion for summary judgment orally and moved for summary judgment in their own behalf. Agreeing that there was no genuine dispute as to any material fact, counsel for the employer and its insurer proffered the following additional facts, to which Daniel Bendler, a supervisor for King, would have testified: He would testify that there was — first of all, there are rest rooms on the facilities, that there was a twenty minute paid meal break, that that was a break which was taken by all the employees at the same time. There was running water and styrofoam cups on the premises.

In addition, there was a coffee machine on the premises. There was free hot water available on the premises, hot water maker. In addition to that, there were instant package soups and things of that nature available at no cost for the employees to use on the premises during their breaks. There is a refrigerator, small refrigerator, on the premises for which an employee can keep food and beverage.

There are tables available on the premises for an employee to partake of food and drink,____ Responding to this proffer of additional facts, the claimant’s counsel conceded that there was a coffee machine on the premises but stated that her client did not drink coffee. She further indicated that instant soup mixes were only sometimes available and that her client was unaware of a refrigerator in the office. Based on the “virtually agreed statement of facts” presented to the court, the hearing judge ruled that the claimant’s injury did arise out of and in the course of his ²⁵¹ employment. Accordingly, the court entered summary judgment in favor of the claimant, thereby affirming the Commission’s award of compensation.

In reviewing the circuit court’s grant of summary judgment, we must decide whether there is a genuine dispute as to any material fact and, if not, whether the moving party is entitled to judgment as a matter of law. Brady v. Ralph Parsons Co., 308 Md. 486, 496 , 520 A.2d 717 (1987). The appellants do not argue that there are material facts in dispute, and, indeed, the only facts about which there was any disagreement in the circuit court (whether instant soup mixes were available on the employer’s premises, whether the appellee was aware of a refrigerator available for employees’ use on those premises) are not facts “the resolution of which will somehow affect the outcome of the case.” 2 King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985). Accordingly, we proceed to consider whether the appellee was entitled to judgment as a matter of law on the facts presented to the circuit court.

The compensability of appellee’s disability depends on whether it resulted from an accidental injury “arising out of and in the course of” his employment. 3 The words “out of” refer to the cause or origin of the accident, while the phrase “in the course of” relates to the time, place and circumstances under which it occurred. Wiley Mfg. Co. v. ²⁵² Wilson, 280 Md. 200, 205, 373 A.2d 613 (1977); Mack Trucks, Inc. v. Miller, 23 Md.App. 271, 272 , 326 A.2d 186 (1974), aff'd, 275 Md. 192 , 338 A.2d 71 (1975). An injury is said to arise out of employment when it results from some obligation, condition or incident of employment.

Scherr v. Miller, 229 Md. 538, 543 , 184 A.2d 916 (1962); Pappas v. Modem 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. Dep’t of Correction v. Harris, 232 Md. 180, 184 , 192 A.2d 479 (1963); Pappas, supra, 14 Md.App. at 532 , 287 A.2d 798 .

The determination as to whether an injury arises out of and in the course of employment depends on the facts and circumstances of each particular case. 4 Ordinarily, injuries sustained by an employee while “going or coming” from his or her place of employment are not compensable under the Workmen’s Compensation Act because they do not arise out of and in the course of employment. Wiley Mfg. Co. v. Wilson, supra, 280 Md. at 206 , 373 A.2d 613 ; Miller v. Johns Hopkins Hospital, 57 Md.App. 135, 138 , 469 A.2d 466 , cert. denied, 299 Md. 656 , 474 A.2d 1345 (1984). Two exceptions to this general rule are the “premises rule” and the “proximity rule.” The former “applies when an employee is injured on the premises of the employer and while going to or from his or her job.” Miller, supra, 57 Md.App. at 138 , 469 A.2d 466 .

The latter, which is essentially a geographical extension of the ²⁵³ area of the former, id., applies when the injury occurs at a point located off the employer’s premises where a special hazard “peculiarly associated with the employment” exists. Wiley Mfg. Co., supra, 280 Md. at 208 , 373 A.2d 613 . The “going and coming” rule and the two exceptions discussed apply to the employee’s trips to and from work at the beginning and end of the work day.

In addition, when the employee has a definite place and time of work, and the time of work does not include the lunch hour, the trip away from and back to the premises for the purpose of getting lunch is indistinguishable in principle from the trip at the beginning and end of the work day, and should be governed by the same rules and exceptions. 1 A. Larson, Workmen’s Compensation Law § 15.51, at 4-116.15 (1985). The instant case does not involve a lunch (or dinner) break, but, rather, a break of shorter duration, more in the nature of a coffee break. We believe the off-premises accident that occurred during the break in this case presents a situation to which the “going and coming” rule and its exceptions do not apply. The better analysis, in our view, is to consider whether the appellee sustained his accidental injury while engaged in some personal comfort activity incidental to his employment.

The Court of Appeals in Sica v. Retail Credit Co., 245 Md. 606, 612 , 227 A.2d 33 (1967), stated, albeit dicta, that “[t]he modern institution of the ‘coffee break’ benefits the employer, in maintaining the employees’ morale, as well as the participating employees.” The Court further observed that there could be little question but that an accident sustained during a coffee break on the employer’s premises arises out of the employment. Id. at 612-13 , 227 A.2d 33 . Relying