Lee v. BSI Temporaries, Inc.

CATHELL, Judge. Once again, the issue facing us is whether a worker’s accidental injuries arose out of and in the course of her employment. In this case, the employee sustained her injuries while riding on a bus that was provided by her employer. The Workers’ Compensation Commission decided that issue against Peggy Lee, appellant, the employee, and in favor of BSI Temporaries, Inc., appellee, the employer, and that determination was confirmed by the Circuit Court for Baltimore City.

Appellant filed a timely appeal therefrom; she presents three issues: A. If an employer hires a third party to transport employees to and from the workplace, and the cost of this service is met by a fee deducted from each employee’s paycheck, are injuries suffered by an employee while using this service compensable under Marylandfs] worker[s’] compensation statutes? B. Under the “employer conveyance” exception to the coming and going rule, must a claimant demonstrate that the employer was “obligated” to provide transportation? C. Given the agreed-upon facts of this case, did the employee suffer a compensable work-related injury? In actuality, we need only speak to appellant’s first issue.

In order to address that issue, we will need to analyze the scope of the employer conveyance exception to the coming and going rule, thereby answering appellant’s second issue. Appellant’s third issue is little more than a restatement of the first. ⁴ The Relevant Facts We shall begin by setting forth the facts of this case, which are neither complicated nor in dispute. Peggy Lee, appellant, was an employee of BSI Temporaries, Inc. (BSI), appellee, 1 a temporary services agency. On July 19,1995, appellant, while employed by BSI, was working at a Proctor & Gamble plant in Baltimore.

BSI contracted with the Woodlawn Bus Co. (Woodlawn) to transport its employees to and from the Proctor & Gamble plant on a daily basis. BSI designated various locations and times throughout the Baltimore area where the Woodlawn buses stopped to pick up and discharge the employees; only BSI employees were allowed to ride the buses. BSI employees were neither obligated nor required to use the bus service. The employees, including appellant, were free to arrange their own transportation to the plant.

Those who chose to make use of the bus service had five dollars deducted from their paychecks for each day they utilized the bus service. The funds that BSI collected from the employees roughly equaled the amount that BSI paid to Woodlawn under the contract. Furthermore, BSI directed its employees to. bring any complaints about the bus service to its attention. On July 19, 1995, appellant was injured while riding on one of the buses when that bus struck a curb.

As a result of the injury, appellant filed a claim with the Workers’ Compensation Commission. A hearing was held on November 15, 1995, and appellant’s claim for benefits was denied. The Commission found that appellant had not sústained an accidental injury arising out of and in the course of her employment with BSI. 2 Thereafter, appellant appealed to the Circuit Court for Baltimore City, and that court, on March 28, 1996, confirmed the ⁵ Commission’s determination. 3 Appellant filed a timely notice of appeal therefrom. The Law It is a well settled principle that injuries sustained by an employee while he or she is commuting to or from work are generally not considered to arise out of and in the course of employment and, therefore, are not compensable under our workers’ compensation statute.

Morris v. Board of Educ., 339 Md. 374, 379 , 663 A.2d 578 (1995); Alitalia Linee Aeree Italiane v. Tornillo, 329 Md. 40, 44 , 617 A.2d 572 (1993); see also Board of Trustees v. Novik, 326 Md. 450, 453 , 605 A.2d 145 (1992); Maryland Casualty Co. v. Lorkovic, 100 Md.App. 333, 345 , 641 A.2d 924 (1994). This is commonly referred to as the “coming and going” rule. In Morris , former Court of Appeals Chief Judge Murphy explained the rationale behind the noncompensability of injuries sustained while an employee is commuting: This is because getting to work is considered to be an employee’s own responsibility and ordinarily does not involve advancing the employer’s interests. Moreover, the hazards encountered by an employee while commuting to work are common to all workers, no matter what their job, and, hence, such risks cannot be directly attributable to a person’s particular employment. 339 Md. at 380 , 663 A.2d 578 (citation omitted); see also Cardillo v. Liberty Mut.

Ins. Co., 330 U.S. 469, 479 , 67 S.Ct. 801, 807 , 91 L.Ed. 1028 (1947) (injuries incurred while commuting “arise out of the ordinary hazards of the journey, hazards which are faced by all travelers and which are unrelated to the employer’s business”); Wiley Mfg. Co. v. Wilson, ⁶ 280 Md. 200, 206 , 373 A.2d 613 (1977); Salomon v. Springfield Hosp., 250 Md. 150, 154 , 242 A.2d 126 (1968). Stated otherwise, [i]njuries sustained while an employee is traveling to or from the workplace ordinarily are not compensable ... because the hazards which employees face during daily commuting trips are common to the public at large.

The risks to which an employee is exposed while going to or coming from work are no different from the ones which confront workers while they are traveling on personal excursions. Richard P. Gilbert & Robert L. Humphreys Jr., Maryland Workers’ Compensation Handbook § 6.6 (2d ed.1993) (footnotes omitted). As with many general principles of law, the coming and going rule is subject to several exceptions. Among them are two related and somewhat overlapping exceptions: the free transportation exception and the employer conveyance exception.

The distinctions between the two, as we shall explain, are the degree of control exercised by the employer over the mode of transportation and to what extent the employer was under an obligation to furnish the employee with the transportation. Appellant contends that her workers’ compensation claim comes under the employer conveyance exception. Appellant has, however, cited many cases decided under the free transportation exception in her brief as support for her position. Therefore, we shall address both.

In doing so, we are mindful that “[e]ach case involving the going and coming rule and its exceptions must turn on its own particular facts.” Alitalia, 329 Md. at 46 , 617 A.2d 572 ; Morris, 339 Md. at 381 , 663 A.2d 578 ; Lorkovic, 100 Md.App. at 355 , 641 A.2d 924 ; see also Cardillo, 330 U.S. at 479 , 67 S.Ct. at 807 . We are also heedful of the requirement that “the Maryland Workers’ Compensation Act is to be construed as liberally in favor of injured employees as its provisions will permit in order to effectuate ⁷ its benevolent purposes as remedial social legislation.” Alita-lia, 329 Md. at 48 , 617 A.2d 572 . The Free Transportation Exception The first Maryland case to engraft an exception onto the coming and going rule was Harrison v. Central Constr. Co., 135 Md. 170 , 108 A. 874 (1919).

Joel Harrison was employed by the Central Construction Co., and, under the terms of his employment agreement, he was furnished with “free transportation” to and from his workplace. While boarding a special “work train,” Harrison fell and suffered a traumatic amputation of his lower leg. His claim for workers’ compensation benefits was challenged by his employer as being within the coming and going rule exclusion. Relying on cases from foreign jurisdictions, the Court of Appeals determined: When the injury occurs before the beginning or after the termination of work there are two general rules applicable to the question as to whether it arose out of and in the course of the employment.

The first is that an employee, while on his way to work, is not in the course of his employment. The second is that where the workman is employed to work at a certain place, and as a part of his contract of employment there is an agreement that his employer shall furnish him free transportation to or from his work the period of service continues during the time of transportation, and if an injury occurs during the course of transportation it is held to have arisen out of and in the course of employment. 135 Md. at 177-78 , 108 A. 874 ; see also Rumple v. Henry H. Meyer Co., 208 Md. 350 , 118 A.2d 486 (1955). In short, as pertinent to the case sub judice, Harrison rode to and from work each day on a train that was neither owned nor operated by his employer, and yet, because his employer was obligated to provide that transportation to Harrison for free, he was awarded compensation even though his injury occurred while he was commuting. In Cardillo, supra, the United States Supreme Court considered the workers’ compensation claim of a District of ⁸ Columbia man.

Clarence Ticer, the employee, was part of a car pool from his home in the District to his workplace in Virginia. Pursuant to an agreement between his union and the employer, Ticer and his coworkers were to be “furnished” with “[transportation ... for all work outside the District of Columbia.” The employer also agreed that each laborer would be paid two dollars per day as transportation expenses, and this amount represented the approximate cost of round-trip travel. Ticer was fatally injured while commuting to work one day when a rock came through the windshield of the car he was driving and struck.him in the head. His wife’s death benefits claim was opposed by the employer and insurer who argued that Ticer’s injury did not arise out of and in the course of his employment.

Speaking to the free transportation exception, the Supreme Court opined: It was found [by the workers’ compensation commission] that Ticer’s employer paid the costs [of his daily commute] as a means of carrying out its contract obligation to furnish the transportation itself. Where there is that obligation, it becomes irrelevant in this setting whether the employer performs the obligation by supplying its own vehicle, hiring the vehicle of an independent contractor, making arrangements with a common carrier, reimbursing employees for the use of their own vehicles, or reimbursing employees for the costs of transportation by any means they desire to use. In other words, where the employer has promised to provide transportation to and from work, the compensability of the injury is in no way dependent upon the method of travel which is employed.... [T]he employer is free to carry out its transportation obligation in any way the parties desire; and the rights of the employees to compensation are unaffected by the choice made. 330 U.S. at 482-83 , 67 S.Ct. at 809 (footnote omitted). The free transportation exception was thoroughly discussed in our case of Ryan v. Kasaskeris, 38 Md.App. 317 , 381 A.2d 294 (1977).

Stella Kasaskeris, a domestic servant for the Ryans, was, as a condition of her employment, provided with round-trip transportation, bus fare. During her commute to ⁹ work, after alighting from the bus, she was injured while walking the short distance from the bus stop to the Ryans’ house. The Court framed the issue before it as whether an injury sustained by a domestic servant, whose transportation expenses are reimbursed by her employer, arises out of and in the course of her employment, and is therefore compensable under the Workers’] Compensation Act, if it occurs while she is in transit to or from her employer’s home. 38 Md.App. at 318 , 381 A.2d 294 . After detailing the development of the free transportation exception in Maryland, the Court summarized the doctrine: [I]n terms of the “free transportation” exception to the “going and coming” rule, an injury occurring while an employee is on his way to or from work, which otherwise would be noncompensable as being the result of normal hazards unconnected with the employment, becomes com-pensable only if, under the terms of the employment, the employer is under some obligation to provide the transportation to the employee.

It is that underlying obligation which brings the travel within the scope of the employment. Where that obligation exists, the method of carrying it out becomes irrelevant; but where it does not exist, there is no coverage under this exception. 38 Md.App. at 328-29 , 381 A.2d 294 . The Ryan Court then held that, because the Ryans were responsible for providing Kasaskeris’s transportation — whether by actually driving her to and from work or by providing bus fare — and because her actual transportation costs were reimbursed by the Ryans, Kasakeris’s claim came within the free transportation exception. Id. at 333-34 , 381 A.2d 294 .

Thus, because the employers were responsible for the claimant’s transportation and reimbursed her commuting costs, the employee’s claim came within the free transportation exception, without regard to the fact that she was walking between the bus stop and place of employment at the time she was injured. Compare Tavel v. Bechtel Corp., 242 Md. 299 , 219 A.2d 43 (1966) (where contractually provided “travel expenses” bore no relationship to actu ¹⁰ al expenses, case did not come within free transportation exception). More recently, the free transportation exception was at issue in Maryland Casualty Co. v. Lorkovic, supra. Albert Lorkovic, the employee, sustained injuries in a one-car accident that occurred while he was driving home from the airport following a business trip.

Although Lorkovic was not ordinarily compensated for trips between his home and office, when on business trips “[t]he mileage as well as airline and everything was paid for by the company.” 100 Md.App. at 341 , 641 A.2d 924 . Looking to the employment relationship between the two parties, the Court held that Lorkovic’s claim came within the free transportation exception. The Court found that [t]he record in this case clearly reflects that Maryland Casualty had obligated itself to provide for Lorkovic’s transportation during his business trips, from the time he left his home until the time he returned to his home or place of business. It is undisputed that Maryland Casualty always reimbursed Lorkovic for the expenses of his business travel, including the cost of transportation to and from the airport.

Id. at 356 , 641 A.2d 924 . Thus, despite the fact that Lorkovic, the employee, was traveling in his own car and was the operator of that vehicle at the time of the injury, his claim was compensable because his employer was obligated to provide him with free transportation and did so. Consequently, the free transportation exception allows compensation where the employer has, in essence, extended the workday to include the time spent commuting by a contractual obligation to furnish free transportation. In sum, therefore, when an employer is obligated to incur the costs of an employee’s transportation and does so, the workers’ compensation claim of an employee injured while commuting comes within the free transportation exception to the coming and going rule, regardless of the mode of transportation utilized by the employee, the entity that is in control of those means, and how the employer chooses to meet its obligations. ¹¹ Turning to the case sub judice, we hold that appellant’s claim does not come within the ambit of the free transportation exception.

Appellant was neither provided with free transportation (she was charged five dollars for each day that she opted to utilize the bus service) nor was BSI obligated to provide appellant