Montgomery County v. Wade

KARWACKI, Judge. The principal issue presented in this case is whether an injury sustained by an off-duty police officer while operating a ⁵ patrol vehicle for personal purposes as permitted by departmental regulations is compensable under the Maryland Workers’ Compensation Act. Specifically, Petitioner, Montgomery County, seeks to classify the injury suffered by Respondent, police officer Pamela Wade, as falling without the contemplation of Maryland Code (1991 RephVol.), §§ 9-101(b) and 9-501 of the Labor and Employment Article (LE), 1 and thus, not compensable as an accidental injury within the meaning of those statutes. For the reasons recited below, we hold that Wade’s injuries fall within the relevant statutory framework and shall affirm the judgment of the Court of Special Appeals.

I. On September 4, 1988, Officer Wade, while not on scheduled duty or in uniform and while operating her personal patrol vehicle, was hit from behind by another vehicle. At the time of the accident, Officer Wade was on her way to her mother’s home; her grandmother was a passenger in the car. Officer Wade sustained upper body injuries that ultimately necessitated surgery. Thereafter, on October 18,1990, she filed a claim with the Workers’ Compensation Commission (hereinafter “the Commission”).

The Commission found, in an order dated August 27, 1991, that Officer Wade had “sustained an accidental injury arising out of and in the course of employment,” and, as a result, was entitled to temporary total disability benefits for those injuries. Judicial review of that order, which was sought by Montgomery County, came before a jury in the Circuit Court for Montgomery County on November 2, 1994. Following the court’s denial of the parties’ motions for judgment at the close of all the evidence and its refusal of a number of the County’s requested jury instructions, the jury confirmed the Commission’s award. The County appealed the judgment on that verdict to the Court of Special Appeals. ⁶ After the intermediate appellate court affirmed the judgment in an unreported opinion, we granted the County’s petition for certiorari.

II

Montgomery County police officers are permitted, under certain circumstances and subject to a variety of restrictions, to maintain a personal patrol vehicle, or PPV. According to the County, “[a] PPV is a bargained for benefit of employment available to Montgomery County police officers in the bargaining unit with its use subject to certain guidelines and restrictions.” According to the directive of the Montgomery County Police Department, published on July 1, 1985, the PPV program (hereinafter “the program”) was established “to provide the highest level of police service to the community by providing greater police visibility on the streets and in the neighborhoods of Montgomery County, and by enhancing the responsiveness of both on-duty and off-duty officers to calls for service.” 2 To this end, the program places very stringent procedural and operational regulations upon those who are assigned a vehicle. In operation thereof, the off-duty officers must carry a handgun, handcuffs, and department credentials, ⁷ and equip the PPV with items such as flares, a fire extinguisher, a nightstick, a tactical duty helmet, and a traffic vest and gloves. 3 They must monitor the police radio, and may make traffic stops “only when inaction would reflect unfavorably upon the department.” They must “respond to incidents or calls for service which come to their attention through any of the following means: (1) on view; (2) citizens!;] (3) radio monitored activity of a serious nature occurring within reasonable proximity to their location.” After responding to a scene while operating the PPV off-duty, the officers must complete an “activity card.” A Monthly Activity Summary Report, Unit/Shift Activity Report, and District PPV Summary must also be submitted to departmental officials. Further, the regulations provide that off-duty officers who respond to and work on an incident receive overtime compensation only for that period of time in excess of two hours.

Other regulations include prohibitions against taking the vehicle out of the County without authorization and against utilizing it as a form of travel to a place of secondary employment. The PPV may also not be used in furtherance of political activity, and bumper stickers are prohibited without approval. The participating officers must further abide by a number of strict regulations relative to the maintenance of the vehicle, upon which the County imposes mileage and gasoline constraints. It is undisputed that a benefit inures to the County by virtue of this program.

The County concedes as much. Indeed, according to Lt. Hargrove, even while officers are operating their PPVs for purposes other then responding to a call for police assistance, they are still providing a police service, to the extent that the PPV is a visual deterrent to criminal activity. The question remains, however, whether by virtue of the benefits the County receives from the program injuries sustained by participating officers are compensable as arising out of and in the course of the employment within the ⁸ meaning of the Workers’ Compensation Act.

It is to resolution of this query that we address our decision.

III

A. Under the Workers’ Compensation Act (hereinafter “the Act”), a compensable “[a]ccidental personal injury” includes “an accidental injury that arises out of and in the course of employment.” LE § 9—101(b)(1). 4 Just what “arises out of’ and “in the course of’ one’s employment has been the subject of considerable dispute, particularly in respect to police officers and other employees who, while not scheduled for duty twenty-four hours a day, in essence must hold themselves ready for duty at a moment’s notice by virtue of the nature of their employment. As a threshold matter, ascertaining the nature and extent of an employee’s duties is integral to a determination of the compensability vel non of an injury; that is to say, what arises out of and in the course of employment is highly dependant upon the precise nature of the employee’s duties. Each case requires individual evaluation. The County disputes that an officer operating a PPV while off duty for personal purposes may sustain any injury that arises out of and in the course of his or her employment.

Because Officer Wade was not responding to a call for service or otherwise performing a police function during the time she was using her PPV on September 4, 1988, the County posits, the requisite causal connection between the conditions under which the work is required to be performed and the resulting injury is absent. In other words, “a person who has the benefit of an employer provided vehicle (whatever the employer’s motivation) and chooses to use that vehicle for personal ⁹ reasons, is not operating the vehicle in the course of employment.” If, however, the County contends, this Court were to determine that there was a sufficient nexus between the employment relationship and its interest in providing PPVs to its police officers such that their use arose out of and in the course of the employment, the reasoning applicable to both the dual purpose doctrine and special errand exception to the “going and coming” rule, while not applicable, would render Officer Wade’s injury noncompensable. We do not agree with either proposition. B. The mere occurrence of an accident is an insufficient basis upon which to predicate a workers’ compensation claim.

Richard P. Gilbert & Robert L. Humphreys, Jr., Maryland Workers’ Compensation Handbook § 5.2 (2d ed.1993). The policy of the Act is to compensate only those injuries that are occupationally-related, and not those perils common to all mankind or to which the public is generally exposed. See Blake Constr. Co. v. Wells, 245 Md. 282, 289-90 , 225 A.2d 857, 862 (1967), and cases cited therein; Maryland Paper Prods.

Co. v. Judson, 215 Md. 577, 584 , 139 A.2d 219, 222 (1958). When a claimant seeks compensation for an accidental personal injury under LE §§ 9—101(b)(1) and 9-501, he or she must demonstrate that it both arose out of and in the course of the employment. These two conditions precedent are not synonymous; both must be proven in order to bring the claim within the operation of the Act. 5 Pariser Bakery v. Koontz, 239 Md. 586, 590 , 212 A.2d 324, 326 (1965). 1. An injury is said to “arise out of’ one’s employment when it results from some obligation, condition, or incident of ¹⁰ the employment.

Knoche v. Cox, 282 Md. 447, 455 , 385 A.2d 1179, 1183 (1978) (quoting Department of Correction v. Harris, 232 Md. 180, 184 , 192 A.2d 479, 481 (1963)); Watson v. Grimm, 200 Md. 461, 465 , 90 A.2d 180, 182 (1952); Consolidated Eng’g Co. v. Feikin, 188 Md. 420, 424 , 52 A.2d 913, 916 (1947). It is construed to refer to causal origin. 1 Arthur Larson, The Law of Workmen’s Compensation § 6.10 (1996). That is to say, it “requires a determination whether the injury had its origin in (and is therefore attributable to) the claimant’s work environment.” Gilbert & Humphreys, supra § 5.3 (citing Harris); see also Rice v. Revere Copper & Brass, Inc., 186 Md. 561, 565 , 48 A.2d 166, 167-68 (1946) (It refers to the cause or origin of the injury.). In establishing the nexus between the injury and the employment, the claimant must demonstrate that the injury is attributable to some service or act in the employment or is reasonably incident thereto.

Wells, 245 Md. at 290 , 225 A.2d at 862 ; see also Feikin, 188 Md. at 425 , 52 A.2d at 916 (It must be apparent to the rational mind that there was a causal connection between the conditions under which the work was required to be performed and the ensuing injury and that it is contemplated as such by a reasonable person familiar with the situation.); Harris, 232 Md. at 183-84 , 192 A.2d at 481 (The causative danger must be incidental to the nature of the work and not independent of the employment relationship.). Where there is no causal connection between the work and the event giving rise to the injury, then unusual or extraordinary conditions of employment constituting a risk peculiar to the work may establish the requisite causal nexus, either as an unusual cause or acceleration of the injuring event or as a cause of unusual consequences of the event, in which case the injury is said to have arisen out of the employment. Perdue v. Brittingham, 186 Md. 393, 402-03 , 47 A.2d 491, 495-96 (1946). Officer Wade’s use of her PPV on September 4, 1988, was clearly incidental to her role as a patrol officer.

The Montgomery County police department established a program whereby its officers were permitted to use their patrol cruisers as personal vehicles when not on regularly scheduled duty. ¹¹ It attached numerous and detailed regulations to this privilege and encouraged off-duty use of the PPVs in order to, inter alia, alleviate budget and staffing concerns and increase police presence throughout the County. Officer Wade would not have been operating a PPV but for her employment and consequent participation in the program. Thus, because her injuries stem from her use of the PPV within the department’s guidelines, the requisite causal link exists, and, under these circumstances, those injuries are properly considered to have arisen from her employment. 2. Given that Officer Wade’s injuries arose out of her employment, the compensability vel non of her claim, therefore, depends upon whether she was acting in the course of her employment at the time of the accident.

The “course of employment” test directs our attention to the time, place, and circumstances of the accident in relation to the employment. Knoche, 282 Md. at 454-55 , 385 A.2d at 1183 , Watson, 200 Md. at 465 , 90 A.2d at 182 ; Rice, 186 Md. at 565 , 48 A.2d at 167 -68 Larson, supra § 6.10. An analysis of the occupational correlation of these factors “demands that the injury be shown to have arisen within the time and space boundaries of the employment, and in the course of an activity whose purpose is related to the employment.” 1 Larson, supra § 14.00. Questions pertinent to this inquiry are: 1) when the employment began and ended, 2) whether the continuity of the period was broken, and 3) how far the employee placed himself or herself outside the employment during that period.

Harris, 232 Md. at 184 , 192 A.2d at 481 ; see also Watson, 200 Md. at 466-67 , 90 A.2d at 183 . Stated otherwise, an injury is in the course of employment when it occurs during the period of employment at a place where the employee reasonably may be in performance of his or her duties and while fulfilling those duties or engaged in something incident thereto. Id.; see Pariser Bakery, 239 Md. at 590 , 212 A.2d at 326 (“In the course of’ refers to an injury occurring while the employee is performing a duty that he or she is employed to perform at a place where ¹² he or she reasonably may be in performance thereof.); Miller v. Coles, 232 Md. 522, 527 , 194 A.2d 614, 616 (1963) (same) (quoting Watson, 200 Md. at 466 , 90 A.2d at 183 ). If the injury occurred at a point where the employee was within the range of dangers associated with the employment, it is held compensable under the Act.

When the employer provides the mode of transportation, the predicate for an award of compensation under the Act is even more clear—courts have held that injuries incurred under these circumstances are ordinarily compensable because the employer has broadened the scope of employment by its provision of the transportation. Gilbert & Humphreys, supra § 6.6-1 (citing Watson, 200 Md. at 469 , 90 A.2d at 184 ). Throughout this analysis, however, it must be borne in mind that “whether a given injury is in the course of the employment is determined by the facts and circumstances of each particular case.” Maryland Cas. Co. v. Insurance Co. of N. Am., 248 Md. 704, 707-08 , 238 A.2d 88, 90 (1968).

As we have stated, we must necessarily determine the scope of Officer Wade’s responsibilities to ascertain whether she was acting pursuant to the employment relationship she maintained with the department at the time of the accident. 6 If she was not performing those duties or engaged in something incident thereto, she may not recover. As a patrol officer, Officer Wade carried out her duties through the use of a marked police cruiser. As she explained to the circuit court, “Most people work in a building; we [patrol officers] work from our cruiser. That’s our office.” Incident to that use, the department, by virtue of its unique program, permitted eligible officers to retain possession of the vehicle in furtherance of the objectives it set forth.

See note ¹³ 1, supra. The department, however, conditioned the use of the PPVs upon adherence to a stringent set of guidelines, which required, inter alia, that participating officers equip the vehicles with specified items, monitor the police radio, and “respond to incidents or calls for service.” The guidelines, in essence, outline additional responsibilities by which the participating officers are to abide upon penalty of, at minimum, expulsion from the program. Any time Officer Wade placed the vehicle in operation while she was not on scheduled duty, she was bound to act within those guidelines. Taking this view, she may, therefore, properly be considered to have been operating the PPV under the auspices of the department at the time of the accident and, thus, within the course of her employment. a.

Despite the County’s importuning, we find further support for the conclusion of the Court of Special Appeals that Officer Wade’s injuries resulted in the course of her employment in the dual purpose doctrine. The doctrine brings within its scope trips that serve both business and personal missions. As explained by Judge Cardozo in In re Dependents of Marks v. Gray, 251 N.Y. 90, 93-94 , 167 N.E. 181, 183 (1929) (citation omitted): “If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk.” See also Atlantic Refining Co. v. Forrester, 180 Md. 517, 527 , 25 A.2d 667, 671 (1942); 1 Larson, supra § 18.12 (citing Watson, supra).

It is undisputed that, in the case sub judice, Officer Wade was not on scheduled duty on September 4, 1988, and she was ¹⁴ using the PPV in furtherance of a personal errand—namely, transporting her grandmother to and from her mother’s house. That is not to say, however, that her use of the vehicle was purely personal so as to place her without the Act. As the Court of Special Appeals pointed out, under the unique circumstances of this case, where the police department assigned the PPVs, required officer response to certain, specified situations, and encouraged off-duty use of the vehicles— albeit within departmental guidelines—each time Officer Wade and any other participating officer placed the vehicle in operation, a business purpose was being furthered. As gleaned from Lt.

Hargrove’s testimony, at minimum, the benefit of visual deterrence inured to the County. In fact, Officer Wade testified that she had responded to incidents and calls for