Montgomery Cnty. v. Maloney

Montgomery County v. Maloney, No. 632, September Term 2018 Opinion by Kehoe, J. WORKERS’ COMPENSATION – REVIEW BY COURT – TRIAL DE NOVO When a party seeks judicial review of an unfavorable decision by the Workers’ Compensation Commission, his opponent is not inescapably bound by the appealing party’s procedural preference. The language of Md. Code, Lab. & Empl. § 9-745(d), makes plain that “any party” can request, “in accordance with the practice in civil cases,” a de novo review of “any question of fact involved in the case.” Review by “essentially” de novo trial is available only for issues of fact actually decided by the Commission. Whether an injury arises “out of” and “in the course of” employment is a factual question—or a “mixed” question of law and fact—able to be considered afresh by the circuit court if there are facts in dispute or if opposing inferences can reasonably be drawn from undisputed facts. WORKERS’ COMPENSATION – SCOPE AND EXTENT OF APPELLATE REVIEW When the circuit court concludes after an “essentially” de novo trial that an injury arose out of or in the course of employment, we review that conclusion only for clear error.

So long as there is competent or material evidence in the record to support the court’s conclusions, we will affirm. WORKERS’ COMPENSATION – COMPENSABLE INJURIES – ARISING “OUT OF” EMPLOYMENT Determining whether an injury arises “out of” employment is a question of causation. To determine whether the requisite causal link exists, we apply the positional-risk test. This test poses a simple but-for question: But for his employment, would the employee have been where he was when he was injured?

WORKERS’ COMPENSATION – COMPENSABLE INJURIES – ARISING “IN THE COURSE OF” EMPLOYMENT While the requirement that injuries arise “out of” employment focuses on the existence of a connection between the injury and the injured worker’s employment, the requirement that injuries arise “in the course” of employment is concerned with the strength of that connection. To be compensable, accidental injuries must be sufficiently work-related. They should arise within the time and space boundaries of the employment, and in the course of an activity whose purpose is related to the employment. Even if an injury is sustained off premises and off the clock, the surrounding circumstances may evince an independently convincing association between the injury-causing activity and employment sufficient to make the injury compensable.

Circuit Court for Montgomery County Case No. 426517V REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 632 September Term, 2018 ____________________________________ MONTGOMERY COUNTY, MARYLAND v. JOHN T. MALONEY ____________________________________ Kehoe, Leahy, Adkins, Sally D., (Senior Judge, Specially Assigned) JJ. ____________________________________ Opinion by Kehoe, J. ____________________________________ Filed: April 7, 2020 *Gould, Steven, B., J., did not participate in the Court’s decision to designate this opinion for Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document publication pursuant to Md. Rule 8-605.1. is authentic. Suzanne Johnson 2020-07-21 08:31-04:00 Suzanne C. Johnson, Clerk In this appeal from a judicial-review action, Montgomery County asks us to reverse a judgment of the Circuit Court for Montgomery County, the Honorable Jeannie E. Cho, presiding, which affirmed a decision of the Workers’ Compensation Commission in favor of Montgomery County firefighter John T. Maloney. The County presents two issues, which we have reworded and reordered for purposes of analysis: 1. Did the trial court err in converting the County’s on-the-record appeal to an essential trial de novo at Maloney’s request? 2.

Did the trial court err in finding that Maloney’s injury arose “out of” and “in the course of” his employment? As we explain below, the circuit court did not err on either front. We will therefore affirm its judgment. Background In accordance with familiar principles of appellate review, we will state the facts in the light most favorable to Maloney, the prevailing party at trial.

See Md. Rule 8-131. Maloney is a career firefighter for Montgomery County, Maryland. At the time of trial, Maloney, a resident of Sterling, Virginia, was assigned to work at Fire Station 23 in Rockville. Maloney’s typical work schedule required him to work twenty-four-hour shifts, starting and ending at 7 a.m.

After each twenty-four-hour shift, he would have forty-eight hours off. At the end of April 2016, the County hosted a two-day recruiting event at the Montgomery County Public Safety Training Academy, which is located near Gaithersburg, Maryland. The event was scheduled for Friday, April 29, and Saturday, April 30. Maloney was an instructor in the County’s Candidate Physical Ability Test (CPAT) program for the recruitment of new firefighters and Battalion Chief Anthony Coleman was Maloney’s supervisor in that regard.

Coleman asked Maloney to volunteer to explain the CPAT to potential recruits at the event. Maloney agreed. Maloney would be paid overtime to work the event, which ran from 8 a.m. to 8:30 p.m. on Friday and from 6 a.m. to around 4 p.m. on Saturday. That Friday, at the end of the first day of the recruitment event, Maloney left the academy at around 8:30 p.m.

He went to a grocery store to pick up some food, and then, instead of driving home to Sterling, Virginia, Maloney went to nearby Fire Station 33, in Potomac, Maryland, to sleep for the night. Station 33 was not Maloney’s regularly assigned station, and it was not the closest station to the academy. But, according to Maloney, it was “a slower station” where he could get some rest. And staying over at fire stations before or between shifts, Maloney testified to the circuit court, was “a normal customary practice” for County firefighters.

When he arrived at Station 33 at around 9 p.m., Maloney spoke with Captain Daniel Hudson, the station’s commander. Hudson knew Maloney was staying overnight at the firehouse because he was supposed to work the recruitment event the following morning at the nearby academy. Maloney did not recall expressly asking the commander about staying at Station 33 that night, but no one told Maloney that he should not or could not do it. -2- Later that same night, Maloney cleaned up, took a shower, and did some reading. At around 10:30 p.m., Maloney walked into the engine bay.

The lights were out, and when Maloney stepped down into the bay, he rolled his ankle. In accordance with procedure, Maloney later woke up Hudson to report his injury. Hudson filled out and filed a First Report of Injury, as required when an employee injures himself at work. On September 30, 2016, the Workers’ Compensation Commission held a hearing to determine whether Maloney’s April 29 accidental injury was compensable under the Workers’ Compensation Act.

Maloney and Captain Michael Glazier, supervisor of the County’s Fire and Rescue Operational Medical Services program, testified at the hearing. Maloney’s testimony focused mainly on the facts outlined above. He also explained to the Commission that it was “generally permissible” for a County firefighter to shower and sleep at any of the County’s fire stations, regardless of the station to which the firefighter is assigned. Maloney also told the Commission that over the course of the ten years in which he had occasionally slept at other stations, he had never needed special permission to do so.

Captain Glazier’s testimony was brief but aligned with Maloney’s testimony. He told the Commission that there was no prohibition on firefighters sleeping at stations between shifts; that they were not required to get specific permission to do so; and that the practice was “routine”—and even “encouraged” when something might otherwise cause firefighters to arrive late for work. By order dated October 4, 2016, the Commission found that Maloney’s accidental injury arose out of and in the course of his employment with the County. The Commission -3- ordered the County to pay all causally related medical expenses in accordance with the Commission’s Medical Fee Guide.

On November 2, 2016, the County petitioned the Circuit Court for Montgomery County for on-the-record judicial review of the Commission’s award. Maloney filed a response to this petition and requested a “de novo judicial review by jury trial,” pursuant to Md. Code, § 9-745(d) of the Labor and Employment Article (“Lab. & Empl.”). The County moved to strike Maloney’s request, but the circuit court denied this motion, as well as the County’s subsequent motion to reconsider the order denying the motion to strike that request. Both parties filed motions for summary judgment and oppositions to their respective motions.

The circuit court denied the motions. On April 12, 2018, the trial requested by Maloney commenced before the circuit court. Maloney was the first witness to testify. His testimony focused on the facts and circumstances surrounding his injury, and he more or less repeated what he had said at the Commission’s hearing.

Maloney was clear that he was staying at Station 33 on the night of his injury for his convenience. “It’s a slower station,” he said, “and I didn’t want to go to a station that was going to keep me up all night.” Battalion Chief Anthony Coleman, one of the County’s witnesses, testified before the circuit court about the practice of off-duty firefighters staying overnight at different fire stations. Coleman explained that there was no written policy for making beds available to off-duty firefighters, but that he was familiar with the practice from his days as a station officer. “I used to sleep at stations also,” he said. Coleman explained that the practice was -4- “permitted” but that it was not necessarily “encouraged” by the County, except in the case of inclement weather or some other “extreme” circumstances, “twice a year maybe.” Coleman explained that off-duty firefighters who wish to sleep at a station are supposed to speak with the officer in charge and make sure that there was space available. Firefighters do not need any kind of advance written or oral permission, but the officers in charge need to know who is in the station at all times, he said.

Sometimes firefighters will call in advance to reserve a bed, but, regardless, firefighters are very rarely turned away. “The majority of the time, everybody’s allowed to stay except for very extreme circumstances,” Coleman said. “If there’s no space, then people sleep on couches. . . . [I]t’s a frat house, so we’ll find a way for them to stay.” Coleman also told the court that off-duty officers staying at stations are not allowed to respond to emergency calls, and that Maloney would have had to remain in the station had such a call come in the night he was injured. Captain Daniel Hudson, the officer in charge at Station 33 on the night Maloney was injured, testified that he knew Maloney was staying at the station that night. Like Coleman, Hudson told the court that having off-duty firefighters stay at the station before a shift was not unusual. The circuit court also heard testimony from Jeffrey Buddle, president of the local firefighters union.

He provided additional context about the County’s practice of allowing off-duty firefighters to sleep at stations before and between shifts (emphasis added): -5- [Buddle:] [F]rom my experience, it’s common that firefighters do stay at fire stations during the overnight hours even when they’re not on duty. I can give a few examples of when that might occur. Certainly if there’s an impending inclement weather such as a snow storm, particularly if they’re calling for that snow fall to start in the overnight hours, a lot of firefighters will come in the night before. We also have firefighters that work for Montgomery County, they live just about everywhere, you name it.

In a surrounding state, they live there, and I mean, New Jersey, Pennsylvania, Delaware, Virginia, West Virginia. A lot of times when a fire fighter is out here on whether it be overtime or a training class or whatever and then has to be somewhere in another work assignment the next morning, it is very common for our firefighters to stay at a fire station here in Montgomery County versus the long travel periods of time late at night. Based on its review of this testimony, considered in light of the initial decision of the Commission, the circuit court ultimately concluded that Maloney’s injury arose out of and in the course of his employment. (We will discuss the court’s analysis in more detail later in this opinion.) The circuit court affirmed the Commission’s decision to award Maloney workers’-compensation benefits.

The County filed a timely appeal. Analysis A. The motion for an “essentially” de novo trial The County’s first appellate contention is that the circuit court erred in granting Maloney’s request for a trial under Lab. & Empl. § 9-745(d), converting the County’s on- the-record administrative appeal into a de novo appraisal of the facts. The County presents two arguments in support of this contention. First, the County argues, it is the appellant -6- who has the right to choose the “method of appeal” and “[t]he non-appealing party does not have the option to alter this choice.” According to the County, Maloney had no right to petition for a de novo trial of any factual issues after the County had already petitioned the circuit court for a judicial review of the administrative record.

Second, the County argues, even if Maloney’s status as the appellee did not preclude him from converting the review of the administrative record into a de novo appraisal of the facts, the issues for which review was sought foreclosed this avenue. The § 9-745(d) de novo review is available only when factual issues are before the court, but the issue in its appeal, says the County, was strictly a legal one.1 Neither of these arguments is persuasive. 1. The standard of review In contending that the circuit court incorrectly granted Maloney’s request for a de novo evidentiary hearing pursuant to § 9-745(d), the County claims that the circuit court made a legal error. Accordingly, we exercise de novo review to decide whether the circuit court’s interpretation of § 9-745(d) was legally correct.

Andrews & Lawrence Professional Services, LLC v. Mills, --- Md. ---, 2020 WL 427876 , at ⁸ (filed Jan. 28, 2020) (“When 1 In a three-word parenthetical aside, the county also suggests Maloney’s response to the county’s petition for judicial review was untimely filed. We will not consider this argument because it was not raised before the circuit court, see Md. Rule 8-131(a) (“Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court . . . .”), and because the county fails to develop any argument with respect to this point, see Md. Rule 8-504(a)(6) (requiring that briefs contain “[a]rgument in support of the party’s position on each issue”). -7- reviewing questions of law, this Court reviews the decision of the circuit court . . . without deference.”). 2. De novo review was not foreclosed by County’s initial election. The County is correct that our workers’-compensation statute gives a party aggrieved by a decision of the Workers’ Compensation Commission “[a] [c]hoice of [a]ppellate [s]trategies.” Board of Education for Montgomery County v. Spradlin, 161 Md. App. 155, 166 (2005).

First, the party may request, under Lab. & Empl. § 9-745(c) and (e), a “routine” administrative appeal, in which the circuit court “reviews the record of the proceeding before the Commission and decides, purely as a matter of law, whether the Commission acted properly.” Id. at 167. If the appealing party chooses this route, the circuit court’s task is limited to deciding whether the Commission “justly considered all of the facts,” “exceeded the powers granted to it,” or “misconstrued the law and facts applicable in the case.” Lab. & Empl. § 9-745(c). In determining whether the Commission “misconstrued . . . the facts,” the circuit court decides only “whether the Commission’s fact-finding was, as a matter of law, clearly erroneous because not supported by legally sufficient evidence.” Spradlin, 161 Md. App. at 169 . Second, as an alternative to the “unadorned” administrative appeal, Spradlin, 161 Md. App. at 167 , an aggrieved party may request, under Lab. & Empl. § 9-745(d), “a trial which essentially is de novo,” id.

(quoting Richardson v. Home Mutual Life Insurance Co., 235 Md. 252, 255 (1964)). If the aggrieved party chooses this path, the circuit court engages in “fresh, de novo fact-finding” rather than simply deciding whether the Commission -8- misconstrued the facts. Id. at 173; see also General Motors v. Bark, 79 Md. App. 68, 76 (1989) (“[O]nce the circuit court embarks upon its de novo fact-finding mission, it is totally unconcerned with whether the Commission ‘correctly construed the law and facts’ or not.”). This fact-finding can be done by a jury or by the circuit court itself in a bench trial.

Spradlin, 161 Md. App. at 179 . In the “essentially” de novo trial, the ultimate decision of the Commission is still presumed prima facie correct by the reviewing court. Lab. & Empl. § 9-745(b)(1). Indeed, this is the way in which the § 9-745(d) proceeding is “essentially”—as opposed to entirely—a de novo trial; the parties are not starting from square one.

See Spradlin, 161 Md. App. at 188–90 (explaining the “no less than four respects” in which the Commission’s challenged decision serves as prologue to the circuit court’s “essentially” de novo trial). But the presumption of correctness given to the Commission’s decision does not bind the circuit court (or the jury) in its fact-finding mission. See id. at 168 n.4 (“Since both the initial fact finder and the supervening fact finder enjoy the same prerogative independently to assess credibility and independently to weigh evidence, they may with equal validity reach different conclusions even upon the same record.” (emphasis removed)); Egypt Farms, Inc. v. Lepley, 49 Md. App. 171, 176 (1981) (“The court (or jury) . . . is not bound by the Commission’s fact findings as is normally the case in administrative appeals, but is free to weigh the evidence (and the inferences from it) and reach entirely opposite conclusions.”). Rather, the presumption serves primarily to shift the burden of proof in judicial-review actions in which the employer is the party aggrieved by the Commission’s -9- decision.

See Bark, 79 Md. App. at 80 (explaining that the presumption of correctness and the allocation of the burden on the challenger under the statutory predecessor to Lab. & Empl. § 9-745(b) are “largely meaningless” when the challenger is the claimant, who bears the burden in the initial proceeding before the Commission, but that they are significant when the employer petitions the circuit court for judicial review because “[i]t is then that the allocation of burdens switches”). In petitioning the circuit court for judicial review in this case, the County clearly chose the first of the aforementioned paths: an on-the-record judicial review of the Commission’s decision. But this election was not as hard and fast as the County argues it was; Maloney was not inescapably bound by the County’s procedural preference. The language of Lab. & Empl. § 9-745(d) makes plain that “any party” can request, “in accordance with the practice in civil cases,” a de novo review of “any question of fact involved in the case.” (Emphasis added.) Cf.

Md. Rule 2-325 (“Any party may elect a trial by jury of any issue triable of right by a jury . . . .” (emphasis added)). And Maryland case law has confirmed that the statute means what it says. See Baltimore County v. Kelly, 391 Md. 64, 74 (2006) (explaining that as an alternative to the “routine appeal process,” Lab. & Empl. § 9-745(d) “allows any party to ‘submit to a jury any question of fact involved in the case’” (emphasis added)); Spradlin, 161 Md. App. at 176 (“Either party on the appeal to the circuit court may invoke the right to have a factual finding by the Commission determined de novo at the circuit court level.” (emphasis added)); id. (“Even though a party does not appeal, he can raise issues contesting the findings and decision of the Commission in an appeal taken - 10 - by the other party.” (emphasis added) (quoting Maurice J. Pressman, Workmen’s Compensation in Maryland § 4-22 (1970))); see also Simmons v. Comfort Suites Hotel, 185 Md. App. 203 (2009) (case in which the employer filed for judicial review of the Commission’s decision in favor of the employee, although it was the employee who requested the jury trial in the circuit court pursuant to Lab. & Empl. § 9-745(d)).

In sum, the circuit court did not err in granting the request for a de novo review of the facts under Lab. & Empl. § 9-745(d) simply because it was Maloney who made the request. The County is correct that Lab. & Empl. § 9-745(d) does not apply to normal on-the-record administrative appeals. But this provision is the trigger for the “essentially” de novo trial. And that trigger can be pulled by any party to the judicial-review action. 3.

The issue raised in the petition for judicial review was not a purely legal issue and was therefore an appropriate subject for de novo review under Lab. & Empl. § 9-745(d). Even though either party may request de novo review under Lab. & Empl. § 9-745(d), a substantive “gatehouse requirement” must still be satisfied. Spradlin, 161 Md. App. at 178 . The issue for which the de novo review is sought must be an issue of fact.

See Lab. & Empl. § 9-745(d) (“On a motion of any party filed with the clerk of the court in accordance with the practice in civil cases, the court shall submit to a jury any question of fact involved in the case.”). And the issue must also have been “actually decided by the Commission” in the first instance. Spradlin, 161 Md. at 177. The County argues that the circuit court erred in permitting de novo review under Lab. & Empl. § 9-745(d) because the issue on appeal—whether the Commission erred in concluding that Maloney’s injury arose “out of” and “in the course of” his employment— - 11 - was a purely legal question.

The County is mistaken. The Court of Appeals has made it clear that, in most cases, the precise issue for which the County sought review was not a purely legal question, but rather a factual question—or at least a “mixed” question of law and fact. See Calvo v. Montgomery County, 459 Md. 315, 326 (2018) (noting that “[t]he question as to whether an injury arose out of or in the course of employment is ordinarily, like negligence or probable cause, a mixed question of law and fact” and ultimately concluding summary judgment was inappropriate because the undisputed facts permitted a reasonable conclusion by a fact-finder that the injury was sustained in the course of employment (emphasis added) (quoting Harrison v. Central Construction Corp., 135 Md. 170, 180 (1919))). This has been the law since the earliest days of workers’ compensation in Maryland.2 The issue for which the County sought judicial review was therefore properly the subject of the de novo trial requested by Maloney under Lab. & Empl. § 9-745(d). 2 See, e.g., Whitehead v. Safway Steel Products, Inc., 304 Md. 67, 74 (1985) (noting that a jury should decide “whether an incident arose out of and in the course of employment” when there are conflicting facts, witnesses or inferences); Abell v. Albert F. Goetze, Inc., 245 Md. 433, 436 (1967) (“The lower court, sitting without a jury, found as a fact that appellant ‘did not receive an injury . . . in the course of his employment . . . .’” (emphasis added)); Todd v. Easton Furniture Co., 147 Md. 352, 359 (1925) (question of whether employee’s injury “arose out of and in the course of his employment” was appropriate for resolution by jury in a circuit-court judicial-review action, and not by court through a directed verdict, because of possible opposing inferences of fact to be drawn from uncontradicted evidence); Jewel Tea Co. v. Weber, 132 Md. 178, 182 (1918) (in a judicial-review action, “it was for the jury to determine the questions of fact presented by the appeal, and, among them, the question whether the [deceased’s] injury . . . arose out of and in the course of his employment” (emphasis added)). - 12 - It is true that, in some cases, the issue of whether an injury arises out of and in the course of employment is treated as a pure question of law.

But this is only when the parties stipulate that the facts are not in dispute and that “there is no dispute as to the inferences to be drawn from the facts” either. Schwan Food Co. v. Frederick, 241 Md. App. 628, 668 (2019) (quoting Calvo, 459 Md. at 326 ); Coca-Cola Bottling Works v. Lilly, 154 Md. 239, 244 (1928) (“[T]he question involved . . . is a mixed question of law and fact, [and] it only becomes a question of law for the court to decide, when the facts upon which the decision of the court is rendered have been ascertained and agreed upon by the parties, or when such facts are undisputed and there is no dispute as to the inferences to be drawn from them.”) In this case, it is apparent from the arguments made in the parties’ briefs, from the transcript of the evidentiary hearing before the circuit court, and from our analysis of the evidence introduced at trial that not all the facts in the case were undisputed and that opposing inferences could have been drawn even from the facts upon which the parties agreed. B. The circuit court’s compensable-injury finding In Maryland, employers must compensate “covered employee[s]” for certain accidental personal injuries. Lab. & Empl. § 9-501.

A compensable “accidental personal injury” is one that “arises out of and in the course of employment.” Lab. & Empl. § 9- 101(b). At the end of the de novo evidentiary hearing, the circuit court concluded that Maloney’s firehouse injury met these criteria—that it arose out of and in the course of his employment. The County’s second appellate contention is that this conclusion by the circuit court was in error. To support its position, the County focuses mainly on the facts - 13 - that Maloney was not on duty when he was injured, that he was not required to stay at Station 33 that night, and that he chose to stay there for his own convenience.

These arguments are not persuasive. 1. The standard of review “When the trial court holds an essential trial de novo under [Lab. & Empl.] § 9-745(d) to resolve a question of fact, the trial court has acted as trier of fact, and, as a result, we review the decision of the trial court as we would in any other bench trial.” McLaughlin v. Gill Simpson Electric, 206 Md. App. 242, 253 (2012).3 In Breeding v. Koste, 443 Md. 15 3 In their discussion of the appropriate standard of review, the parties blurred the distinction between the standard applied by Maryland courts when reviewing the decision of the Commission in an “unadorned” administrative appeal, Spradlin, 161 Md. App. at 167 , and in cases like the present one. In an unadorned administrative appeal, appellate courts look through the judgment of the circuit court and review the Commission’s decision. See Hranicka v. Chesapeake Surgical, Ltd., 443 Md. 289, 297 (2015) (“Generally, in an appeal from judicial review of an agency action, we review the agency’s decision directly, not the decision of the circuit court[.]”).

But when the procedures for an “essentially” de novo trial under Lab. & Empl. § 9-745(d) are triggered, the circuit court becomes “totally unconcerned with whether the Commission ‘correctly construed the law and facts’ or not.” General Motors Corp. v. Bark, 79 Md. App. 68, 76 (1989). In this context, “the propriety of the Commission’s original fact-finding is a matter of no consequence.” Spradlin, 161 Md. App. at 173 ; see also Egypt Farms v. Lepley, 49 Md. App. 171, 176 (1981) (“The court [in an ‘essentially’ de novo trial] is not bound by the Commission’s fact findings as is normally the case in administrative appeals, but is free to weigh the evidence (and the inferences from it) and reach entirely opposite conclusions.”). The Commission’s decision is before us only insofar as it was evidence in the record developed by the circuit court to support its independent conclusion that Maloney’s injury arose out of and in the course of his employment. Cf.

Bark, 79 Md. App. at 85 (“Because of the very nature of de novo fact finding, we are not assessing . . . the propriety of the Commission’s decision. What matters rather is the propriety of the [circuit judge’s] decision.”). - 14 - (2015), the Court of Appeals elaborated on the standard of appellate review applied, pursuant to Md. Rule 8-131(c), to bench trials: We give due regard to the trial court’s role as fact-finder and will not set aside factual findings unless they are clearly erroneous. The appellate court must consider evidence produced at the trial in a light most favorable to the prevailing party and if substantial evidence was presented to support the trial court’s determination, it is not clearly erroneous and cannot be disturbed. Questions of law, however, require our non-deferential review.

When the trial court’s decision involves an interpretation and application of Maryland statutory and case law, our Court must determine whether the [trial] courts conclusions are legally correct. Where a case involves both issues of fact and questions of law, this Court will apply the appropriate standard to each issue. Id. at 27 (cleaned up). As we explained above, the question of whether an injury arises out of and in the course of employment is a factual one—or a mixed question of law and fact—as