Montgomery County v. Smith

⁵⁵¹ SALMON, J. The issue we must decide is whether an injury, which an off-duty prison guard suffered while playing basketball at the detention center where he worked, arose “out of and in the course of [his] employment,” as that phrase is used in the Workers’ Compensation Act. See Md.Code Ann., Lab. & Empl. § 9—101(b)(1) (2001). The answer to that question basically turns on whether Smith’s injury was “sufficiently work-related to be an incident of employment.” Mack Trucks, Inc. v. Miller, 23 Md.App. 271, 274 , 326 A.2d 186 (1974). We shall hold that it was not.

I. FACTS On February 3, 2000, George R. Smith (“Smith”) was employed by Montgomery County as a correctional officer at the County’s detention center located in Rockville. The detention center has a gymnasium built for the use of the detention center’s inmates. Nevertheless, employees of the detention center are permitted to use the gymnasium when they are off-duty so long as inmates are not using it. Gymnasium use by off-duty employees is neither encouraged nor discouraged by the County.

About 4:30 p.m. on February 3, 2000, Smith, while off duty, was playing basketball 1 in the detention center’s gymnasium. In the course of this activity, he jumped, landed awkwardly, and injured both of his knees. He missed the next three months from tvork due to his injuries. Smith filed a claim with the Maryland Workers’ Compensation Commission (“the Commission”) against the County, in which he sought compensation for injuries suffered on February 3.

The only issue presented to the Commission was whether the injury “arose out of and in the course of’ Smith’s ⁵⁵² employment. The Commission ruled in favor of Smith and ordered the County to pay Smith’s medical expenses, plus $427 per week for the period between February 3 and April 30, 2000. The County filed in the Circuit Court for Montgomery County a petition for judicial review. After the parties conducted discovery, Smith and the County both filed motions for summary judgment.

Movants each claimed that there was no dispute as to any material fact concerning the issue of whether Smith’s injuries arose out of and in the course of his employment. Smith filed an affidavit in support of his motion, in which he averred, inter alia, that the reason he was playing basketball on the date in question was “to maintain the high level of physical fitness required ... [of] a corrections officer.” He also said in his affidavit that, “on several occasions” prior to the accident, shift commanders had joined correctional officers in the gymnasium and had also played basketball. Smith attached to his motion several pages from the Montgomery County Department of Corrections and Rehabilitation Departmental Procedural Manual (“the manual”). The manual classified uniformed correctional officers, such as Smith, as “Medical Group I.” Group I officers were required to have “an extraordinary degree of physical fitness and mental health.” Group I employees in Smith’s age group (he was thirty-one when injured) were also required to have complete periodic medical examinations “not less than” once every threé years.

The County supported its summary judgment motion with an affidavit by Richard Tegethoff, Deputy Warden of Custody and Security at the detention center where Smith worked. In his affidavit, Warden Tegethoff said, inter alia: [Corrections officers, including George R. Smith, are required to undergo a physical examination prior to being hired and periodic physical examinations thereafter, but are not subject to any further mandatory physical fitness tests, and physical ability is neither regulated nor evaluated after being hired. ⁵⁵³ ... [Wjhile it is desirable that corrections officers maintain a general state of good physical fitness for the safe performance of their job duties, the Montgomery County Department of Corrections neither promotes nor discourages participation in physical fitness activities. Smith’s counsel filed a memorandum opposing the County’s summary judgment motion, in which he argued: Here, ... [Smith’s] injury arose out of and in the course of his employment, because [he] is a corrections officer on call twenty-four (2k) hours a day. At any time during one of the games, the [ajppellee could have been called to duty and would have been required to stop playing and respond.

Also, the Montgomery County Policy and Procedures Manual requires that correctional officers maintain extraordinary physical condition to continue in the position. Lastly, at the time of his injury, the [ajppellee was training to meet fitness standards to become part of the [ajppellant’s elite “Emergency Response Team. ” The fitness standards for this team were established in a [m]emorandum from [Smith’s] supervisor, Richard Tegethoff, the individual that signed the [a]ppellant’s late filed affidavit (see Exhibit A). The fitness standards required are extremely high level of cardiovascular and physical strength conditioning. Mr. Tegethoffs [m]emorandum was issued on February 2, 1999 (the day before the [a]ppellee’s injury), 2 and the deadline to meet the standards for the Emergency Response Team was in March 1999 (approximately one month later)!

Clearly, peak physical fitness was a requirement of [Smith’s] job, and it was while trying to achieve this level of physical fitness that [he] injured himself. (Emphasis added.) The portion of counsel’s argument that we have emphasized was not supported by affidavit and is not shown to be true by ⁵⁵⁴ any document in the file; it therefore should have been disregarded by the motions judge. See Md. Rule 2-311(d). 3 After hearing oral argument from counsel, the court granted summary judgment in favor of Smith and denied the County’s motion. The motions judge explained why in her oral opinion: What I have to determine is was the Commission correct.

There is a presumption of correctness in the Commission’s findings. [4] I find that Mr. Smith as a correctional officer was playing basketball after hours at the detention center on the premises with the consent and knowledge of the employer. I also find that it is a benefit to the employer in the special situation of a detention center to have extra guards so near and available in case there is a problem. That is an extra benefit to the employer, so I will sustain the finding of WCC [Workers’ Compensation Commission]. There was nothing in the record to support the “findings” of the court set forth in the last-quoted paragraph.

II

ANALYSIS 5 A. The Distinction Between and Definitions of “Arising Out of’ and “In the Course of Employment” In order for a worker’s injury to be compensable, it must be shown that he or she suffered an “accidental personal injury.” ⁵⁵⁵ Included in the definition of an accidental personal injury is an accident “that mises out of and in the course of employment.” 6 See Md.Code Ann., Lab. & Empl. § 9—101(b)(1) (hereafter “L.E.”) (2001) (emphasis added). The Court of Appeals, in Knoche v. Cox, 282 Md. 447, 453-56 , 385 A.2d 1179 (1978), discussed, in detail, the difference between “in the course of employment” and “arising out of employment.” Only if both conditions are satisfied is the injury within the operation of the Act. Id. at 453 , 385 A.2d 1179 (citing Perdue v. Brittingham, 186 Md. 393, 402 , 47 A.2d 491 (1946)). Nevertheless, as Professor Clifford Davis observed, “where an injury clearly ‘arises’ from the employment, the ‘in the course’ requirement may be relaxed, and where the injured employee is squarely ‘in the course’ of employment, the arising requirement may be relaxed.” Clifford Davis, Workmen’s Compensation in Connecticut—The Necessary Work Connection, 7 Conn.

L.Rev. 199, 201 (1974) (citing Malone, Some Recent Developments in the Substantive Law of Workmen’s Compensation, 16 Vand. L.Rev. 1039, 1050 (1963)). See also King Waterproofing Co. v. Slovsky, 71 Md.App. 247 , 252 n. 4, 524 A.2d 1245 (1987) (citing 1A A. Larson, Workmen’s Compensation Law § 29.00 (1985)). ⁵⁵⁶ 1. “Arising Out of Employment” Arising out of employment “refers to the cause or origin of the accident.” Knoche, 282 Md. at 455 , 385 A.2d 1179 . “[T]he injury arises out of employment when it results from some obligation, condition or incident of the employment, under the circumstances of the particular case.” Id. “The causative danger ‘need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.’ ” Id. at 455-56 , 385 A.2d 1179 (quoting Hill v. Liberty Motor, 185 Md. 596, 607-08 , 45 A.2d 467 (1946)). “[I]t is not necessary that there should exist a direct, active, or physical connection between the act causing the accident and the employment, but it is sufficient if the accident, without having for its cause the serious and willful misconduct of the servant, arises directly out of circumstances which the servant had to encounter because of his special exposure to risks that, although external, were incidental to his employment.” Knoche, 282 Md. at 456 , 385 A.2d 1179 (quoting Boteler v. Gardiner-Buick Co., 164 Md. 478, 482 , 165 A. 611 (1933)). When determining whether an accident arose out of the employment, Maryland uses the “positional risk test.” 7 Mulready v. University Research Corp., 360 Md. 51, 66 , 756 A.2d 575 (2000).

Under this 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. at 59 , 756 A.2d 575 . The positional risk test is essentially a “but for” approach; thus, “an injury is compensable if it would not have happened ‘but for’ the fact that the conditions or obligations of the employment put the claimant in the ⁵⁵⁷ position where he was injured.” John D. Ingram, The Meaning of “Arising Out of’ Employment in Illinois Workers’ Compensation Law, 29 J. Marshall L.Rev. 153, 158 (1995) (hereafter “Ingram”). This is a more liberal standard than the “increased risk test,” which most states employ. 8 Id. Ingram says: An example of the positional risk test is found in Nippert v. Shinn Farm Construction Company, [ 388 N.W.2d 820 (Neb.1986) ], where workers were erecting a shed on a farm.

One worker was injured when he was thrown thirty feet by a tornado, whose path was one-half to one-and-one-half miles wide and travelled about fifty-eight miles. The court held that his injury “arose out of’ his employment, because his employment duties put him in a position where he would not otherwise have been, which exposed him to a risk, even though the risk was not greater than the risk to the general public. “But for” his employment, he would not have been there to be injured. Id. (footnotes omitted). “In determining whether an accident arose out of the employment, the Court ‘has endeavored to keep in mind both the legislative mandate that the Workmen’s Compensation Act shall be so interpreted and construed as to effect its general social purpose and the concomitant consideration that workmen, like other members of the general public, are not insured against the common perils of life.’ ” Knoche, 282 Md. at 455 , 385 A.2d 1179 (quoting Sica v. Retail Credit Co., 245 Md. 606, 612 , 227 A.2d 33 (1967)). ⁵⁵⁸ 2. “In the Course of Employment” An injury arises “in the course of employment” when it occurs: (1) within the period of employment, (2) at a place where the employee reasonably may be in the performance of his duties, and (3) while he is fulfilling those duties or engaged in doing something incident thereto.

Knoche, 282 Md. at 454 , 385 A.2d 1179 . Pertinent inquiries include: When did the period of employment begin? When did it end? Wfiien was its continuity broken?

How far did the employee, during the period of employment, place himself outside the employment? Montgomery County v. Wade, 345 Md. 1, 11 , 690 A.2d 990 (1997); Proctor-Silex Corp. v. DeBrick, 253 Md. 477, 480 , 252 A.2d 800 (1969). Thus, “in the course of employment” refers to the “place, time and circumstances under which the accident resulting in the injury or death occurs.” Knoche, 282 Md. at 455 , 385 A.2d 1179 . Larson synthesized the “in the course of’ cases concerning recreational or social activities by saying that such accidents are within the course of employment when: (1) They occur on the premises during a lunch or recreation period as a regular incident of the employment; or (2) The employer, by expressly or impliedly requiring participation, or by making the activity part of the services of an employee, brings the activity within the orbit of the employment; or (3) The employer derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life. [9] 4 Arthur Larson, Workers’ Compensation Law § 22.01 (2001).

Larson’s synthesis, hereafter referred to as the “Larson Rule,” has been quoted previously with approval by the Court ⁵⁵⁹ of Appeals and by this Court. See Sica v. Retail Credit Co., 245 Md. 606, 613 , 227 A.2d 33 (1967); Turner v. State Office of the Public Defender, 61 Md.App. 393, 403 , 486 A.2d 804 (1985). The Rule consists of three independent parts. In Larson’s words, if at least one is found, “the absence of the others is not fatal.” 4 Arthur Larson at § 22.03(1).

Application of the Larson Rule to the case at hand would spell defeat for Smith because none of the three factors is here present. In the area of company picnics and parties, when the degree of employer involvement descends to mere sponsorship or encouragement, Larson states that “the questions [of compensability] become closer, and it becomes necessary to consult a series of tests bearing on work-connection.” Id. at 22.04[3]. Among the questions to be asked are: Did the employer in fact sponsor the event? To what extent was attendance really voluntary?

Was there some degree of encouragement to attend in such factors as taking a record of attendance, paying for the time spent, requiring the employee to work if he did not attend, or maintaining a known custom of attending? Did the employer finance the occasion to a substantial extent? Did the employees regard it as an employment benefit to which they were entitled as of right? Did the employer benefit from the event, not merely in a vague way through better morale and good will, ⁵⁶⁰ but through such tangible advantages as having an opportunity to make speeches and awards?

Id. B. Maryland Off-Premises Recreational Cases—Company Picnics and Company Parties In Sica, 245 Md. at 606 , 227 A.2d 33 , an employee (Sica) was seriously injured when he dove into shallow water at his employer’s annual picnic. Id. at 611 , 227 A.2d 33 . The picnic, as well as the employees’ Christmas party, were touted in Sica’s pre-employment interview as fringe benefits of his employment.

Id. at 609 , 227 A.2d 33 . The picnic was organized by a committee of employees with the authorization of the employer’s managers. Id. The cost of the picnic was paid for by the employer, and employees were urged by the employer to attend, although attendance was not compulsory.

Id. at 610 , 227 A.2d 33 . On the date Sica was injured, the picnic was held about thirty miles from where Sica usually worked. Id. In Sica , the trial court ruled that Sica’s injuries did not arise out of or in the course of his employment.

Id. at 611 , 227 A.2d 33 , The Court of Appeals reversed, id. at 621 , 227 A.2d 33 , holding that the third factor in the Larson Rule had been proven, i.e., that the “employer derived substantial direct benefit from the [picnic] activity beyond the intangible value of improvement in employee health and morale common to all kinds of recreation and social life.” Id. at 618 , 227 A.2d 33 . Thus, Sica was entitled to compensation for his injury. 10 ⁵⁶¹ In Coats & Clark’s Sales Corp. v. Stewart, 39 Md.App. 10 , 383 A.2d 67 (1978), we considered whether an employee’s (Stewart’s) injuries, sustained on a trip to the grocery store to purchase food for a baby sitter “arose out of and in the course of his employment.” Id. at 14 , 383 A.2d 67 . The babysitter was needed so that Stewart and his wife could attend a dinner party to honor two employees with whom Stewart worked. Id. at 11 , 383 A.2d 67 .

Stewart was to present a gift to one of the honored employees at the dinner party. Id. The party, scheduled to begin at 6:00 p.m., was to be held at a co-employee’s home, and was paid for by the employer. Id.

At 5:00 p.m., while driving an automobile provided by his employer, Stewart was fatally injured in an accident. Id. The trial court determined that the company-sponsored dinner party was sufficiently work related to be an incident of Stewart’s employment. Id. at 17 , 383 A.2d 67 .

We agreed, saying: In our view, the task of obtaining food for a baby sitter is a reasonable and necessary incident to obtaining a baby sitter’s services. Because that task would not have been undertaken except for the obligation of employment, it, like the task of transporting the baby sitter, is an integral component of an employee’s attendance at a work-related social event. Accordingly, we hold that an employee’s self-contained trip to obtain food for a baby sitter needed to enable him to attend a work-related social event is a special errand or mission. Therefore, an employee’s injury sustained during such a trip is one sustained in the course of ⁵⁶² his employment and is compensable. [11] Id.

C. On-Premises Coffee and Lunch Break Cases It has been repeatedly and consistently observed that in borderline course-of-employment situations, such as going and coming, or having lunch, the presence of the activity on the premises is of great importance.... Accordingly, it should not be necessary, in the typical case of injury during a noon-hour ball game on the company’s ball diamond or in its gymnasium to bolster the case by adding proof of employer sponsorship of the activity or employer benefit therefrom. It is generally held sufficient that the activity is an accepted and normal one, since it thereby becomes a regular incident and condition of the employment. 4 Arthur Larson, Workers’ Compensation Law, § 22.03[1] (2001). In Mack Trucks, Inc. v. Miller, 23 Md.App. 271 , 326 A.2d 186 (1974), an employee of Mack Trucks ruptured a kidney during a lunch break while playing touch football on a plot of land owned by the employer and located near the plant where the employee worked.

Id. at 272 , 326 A.2d 186 . Football had not been expressly authorized by Mack Trucks, but the employer’s safety director had been a spectator at previous games—which had been going on for three months prior to the claimant’s injury. Id. Judge Lowe, for this Court said: Not only do the employer’s actual knowledge and acquiescence establish the recreational activity as an “incident of employment,” but the period over which it had persisted. would, itself, permit that inference. 1 Larson’s Workmen’s ⁵⁶³ Compensation, § 22.12; citing Moore’s Case, 330 Mass. 1 , 110 N.E.2d 764 , analyzed and relied upon in Sica .

The language of Judge Oppenheimer justifying the Sica result seemed to augur the circumstance here. He gave an illustrative example of a social activity or event that would be sufficiently work-related to be an incident of employment. “The modern institution of the ‘coffee break’ benefits the employer, in maintaining the employees’ morale, as well as the participating employees. There can be little question but that an accident sustained during such an interval on the portion of the employer’s premises set aside for that activity arises out of the employment.” Sica v. Retail Credit Co., 245 Md. at 612 , 227 A.2d 33 . Id. at 274 , 326 A.2d 186 .

Mack Trucks fits within part one of the Larson Rule. Unlike the case at hand, however, the injury occurred within working hours. In King Waterproofing Co. v. Slovsky, 71 Md.App. 247 , 524 A.2d 1245 (1987), Slovsky was struck by a car while crossing a highway. Id. at 249 , 524 A.2d 1245 .

Slovsky was working a four-hour shift from 4:00 p.m. to 8:00 p.m. on the day of his injury. Id. At 6:30 p.m., during a paid meal break, he was struck while going to a carry-out restaurant located across a public highway from his office. Id.

The Commission found that Slovsky’s injury arose out of and in the course of his employment, and on appeal, the trial court agreed and granted summary judgment in favor of Slovsky. Id. at 251-52 , 524 A.2d 1245 . This Court framed the issue for consideration as whether the employee sustained an accidental injury while engaged in some personal comfort activity incidental to his employment. Id. at 253 , 524 A.2d 1245 .

We likened the facts of the case to prior cases where courts had said, in dicta, that an injury sustained during a coffee break on the employer’s premises is ⁵⁶⁴ deemed to have arisen out of the employment. Id. (citing Mack Trucks, Inc., supra, and Sica, supra.) The Slovsky Court reasoned: If an injury that occurs during an on-premises coffee break can arise out of employment, in the sense that it results from an incident of the employment, it follows that an injury sustained during an off-premises coffee break also can arise out of employment. There would appear to be a greater likelihood, however, that an employee who leaves his employer’s premises during a coffee break or rest break may depart from the course of his employment.

In regard to the compensability of injuries sustained during off-premises coffee breaks, Professor Larson writes: It is clear that one cannot announce an all-purpose “coffee break rule,” since there are too many variables that could affect the result. The duration might be five minutes, seven minutes, 10 minutes, or even 20 minutes by which time it is not far from that of a half-hour lunch period. Other variables may involve the question whether the interval is a right fixed by the employment contract, whether it is a paid interval, whether there are restrictions on where the employee can go during the break, and whether the employee’s activity during this period constituted a substantial personal deviation. Id. at 253-54 , 524 A.2d 1245 (quoting 1 Arthur Larson, Workmens’ Compensation Law § 15.54, at 4-116.38 to .40 (1985) (footnotes omitted)).

The Court continued: We do not find the circumstances of the instant case to be significantly distinguishable from those in Maryland Casualty Co. v. Insurance Co. of North America, 248 Md. 704 , 238 A.2d 88 (1968). There, the Court of Appeals held that an injury sustained by an employee of a racing stable occurred in the course of employment where the employee was injured while en route by automobile to a restaurant near the race track to have coffee. The employee in Maryland Casualty was on call around the clock and was paid on that basis. Although there was a cafeteria located at the race track, the record indicated that it was located at such a ⁵⁶⁵ distance from the employee’s work area that a car was considered necessary to get there and return in a reasonable time.

The Court relied on these facts, “coupled with the knowledge of the employer that his employees frequently left the track for coffee and meals and that they did so with his approval,” in concluding that the injured employee was “within the course of his employment” at the time of his injury. 248 Md. at 708 , 238 A.2d 88 . In the case sub judice, as in Maryland Casualty, the employee left his employer’s premises, with the employer’s tacit consent, to obtain refreshments that were unavailable on the premises. The fact that the employee in Maryland Casualty was “on call,” and therefore arguably within his employer’s control, is of no practical significance since that employee probably could not have returned to his place of employment, when summoned, in less than 20 minutes, the established duration of the break in the instant case. The appellants argue that it was unnecessary for the appellee to leave the employer’s premises to obtain refreshments because the employer provided such items as coffee and instant soup mixes on the premises.

The fact that the employer may have provided certain refreshments, however, does not support an inference that employees were not permitted to leave the premises, given the employer’s acquiescence in that practice. Moreover, the limited fare available on the premises did not satisfy those who, like the appellee, preferred a cold drink. Under all the circumstances, the appellee, at the time he was injured, was reasonably engaged in ministering to his personal comfort, and his conduct did not constitute a departure from the course of his employment. Id. at 255-56, 524 A.2d 1245 .

Slovsky , like Mack Trucks, is distinguishable from the case sub judice in that the injury occurred during working hours. D. On-Premises Recreation Cases When seeking for a link by which to connect an activity with the employment, one has gone a long way as soon as one ⁵⁶⁶ has placed the activity physically in contact with the employment environment, and even further when one has associated the time of the activity somehow with the employment. This done, the exact nature and purpose of the activity itself does not have to bear the whole load of establishing work connection, and consequently the employment-connection of that nature and purpose does not have to be as conspicuous as it otherwise might. Conversely, if the recreational activity takes place on some distant vacant lot, several hours after the day’s work has ceased, some independently convincing association with the employment must be built up to overcome the initial presumption of disassociation with the employment established by the time and place factors. 4 Arthur Larson, Workers’ Compensation Law § 22.03 (2001).

Time and place, two overt physical indicia of course-of-employment, are strong factors identifying an activity with the employment. Id. at § 22.04(4)(b). If both [timé and place] are present, that is, if the game is played on the premises during a lunch or recreation period, compensability has been seen to be clear. But even if only one of the two elements is present, the case has made a very strong start.

Thus, if the game is played outside hours, the fact that it is played on the premises is a heavy, although not necessarily decisive, weight on the side of coverage, and may offset a serious deficiency in some other component of the case.” Id. Here, as discussed, infra, Smith made “a good start” in showing compensability by proving that his injury occurred on his employer’s premises. The question then becomes, did he produce enough other evidence to allow a fact-finder to conclude that his accident arose out of and in the course of his employment. Smith relies heavily on Austin v. Thrifty Diversified, Inc., 76 Md.App. 150 , 543 A.2d 889 (1988), in support of his compensability argument.

In Austin , the parents of John Austin ⁵⁶⁷ (“John”) brought a tort claim against John’s employer for their late son’s wrongful death. Id. at 152 , 543 A.2d 889 . The issue presented was whether the exclusive remedy for John’s parents was under the Workers’ Compensation Act. Id. at 151-52 , 543 A.2d 889 .

The answer to that question depended on whether John’s death arose out of and in the course of his employment with Thrifty Diversified, Inc., t/a Better Engineering (“Thrifty”). Id. John worked for Thrifty as a welder. Id. at 153 , 543 A.2d 889 .

On the date of his fatal injury, he received permission to use his employer’s welding equipment to repair a friend’s automobile exhaust system. Id. Shortly after John’s shift ended, while still on his employer’s premises and while working on his friend’s exhaust system, John was electrocuted by faulty welding equipment supplied by Thrifty. Id.

In Austin , the trial judge granted summary judgment in favor of Thrifty on the ground that John’s death arose out of and in the course of his employment, and as a consequence, John’s parents’ exclusive remedy was under the Workers’ Compensation Act. Id. at 156 , 543 A.2d 889 . We affirmed, id. at 165 , 543 A.2d 889 , saying: In the instant case, the deceased’s death “would not have ensued if it had not been for the employment”; it was only because the deceased was an employee of appellee that he was permitted to use appellee’s equipment, on appellee’s premises, for a personal project. Moreover, the instrumentality of the death, the place where it happened, and the activity giving rise to it were the same as those he encountered in his employment; hence, it may be said that the death was brought about by the hazard of the employment.

Under these circumstances, it may not be seriously contended that the death did not arise out of the deceased’s employment. Id. at 159 , 543 A.2d 889 (emphasis added). Turning to the issue of whether Austin’s injuries arose “in the course of employment,” the Austin Court found instructive cases dealing with employees injured or killed while engaged ⁵⁶⁸ in picnics and other company sponsored social activities. Id. at 159-61 , 543 A.2d 889 .

The Austin Court noted that an important factor in those