Schwan Food Co. v. Ryan Frederick,
No. 1289, Sept. Term, 2017, Opinion by Leahy, J.
Workers’ Compensation > Appeals > Presumptions and Burden of Showing Error
When the employer prevails before the Commission, and the claimant elects an appeal
under what is essentially a de novo trial pursuant to § 9-745(d), the parties retain their initial
burdens of proof and persuasion. Baltimore Cty. v. Kelly, 391 Md. 64, 75 (2006).
However, when the employer appeals a decision of the Commission decision in favor of
the claimant and elects a jury trial under § 9-745(d), “the burden of proof, which was borne
by the claimant before the Commission, switches to the employer before the circuit court.”
Id. Accordingly, “[t]he decision of the Commission is, ipso facto, the claimant’s prima
facie case.” Id.
Workers’ Compensation > Appeals > Presumptions and Burden of Showing Error
The burden before the trier of fact in the circuit court is “upon the appellant to overcome
the presumption that the decision of the Commission is prima facie correct,” which is why
the proceeding is qualified as an “essentially de novo trial.” Baltimore Cty. v. Kelly, 391
Md. 64, 76 (2006) (internal quotations omitted).
Workers’ Compensation > Arising Out of and In the Course of Employment >
Questions of Fact and Law
Typically, whether an injury arises out of and in the course of employment is a mixed
question of law and fact. However, “when the facts have been ascertained and agreed upon
by the parties, or are undisputed, and there is no dispute as to the inferences to be drawn
from the facts, the question becomes one of law and may be decided by the court.”
Harrison v. Cent. Constr. Corp., 135 Md. 170, 878 (1919).
Workers’ Compensation > Arising Out of and In the Course of Employment
Whether an injury arises out of and in the course of employment is informed by the “facts
and circumstances of each individual case.” Livering v. Richardson’s Restaurant, 374 Md.
566, 574 (2003).
Workers’ Compensation > In the Course of Employment in General
An injury occurs in the course of employment, within the meaning of LE § 9-101(b)(1),
“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.” Montgomery Cty. v. Wade, 345 Md. 1, 11 (1997) (citations
omitted).
Workers’ Compensation > In the Course of Employment in General
As Professor Arthur Larson has explained, the “[i]n the course of” employment
requirement “tests work-connection as to time, place and activity[.]” 2 Arthur Larson, et
al., Larson’s Workers’ Compensation Law § 12 at 12-1 (Matthew Bender rev. ed. 2018).
Workers’ Compensation > In the Course of Employment > Employee’s Home as a
Work Site in General
Whether an employee’s home qualifies as a work site under Maryland workers’
compensation law is established by three indicia: (1) the quantity and regularity of work
performed at home; (2) the presence of work equipment at home; and (3) the special
circumstances of the employment rendering it necessary, and not merely personally
convenient, to work at home. 2 Arthur Larson, et al., Larson’s Workers’ Compensation
Law § 16.10[2] at 16-24 (Matthew Bender rev. ed. 2018). Under the last (third) prong, the
fact-finder should also consider whether the employer acquiesced to the employee’s use of
his or her home as a work site, or reasonably should have known the employee was
regularly using the home as a work site. Cf. Livering v. Richardson’s Restaurant, 374 Md.
566, 580 (2003); see also Roberts v. Montgomery Cty., 436 Md. 591, 606-07 (2014).
Workers’ Compensation > Injuries While Traveling Between Work-Related Sites
An employee’s travel between work-related sites may be deemed incidental to the
employment, in which case the going and coming rule would not apply to bar compensation
for injuries sustained during the travel. Roberts v. Montgomery Cty., 436 Md. 591, 607-08
(2014).
Workers’ Compensation > In the Course of Employment > Injuries While Leaving
Employee’s Home to Travel to Another Work-Related Site
Injuries sustained by the employee en route from the employee’s home work site to another
work-related site may arise out of and in the course of employment. Cf. Roberts v.
Montgomery Cty., 436 Md. 591, 607 (2014) (explaining that when an employee is injured
while traveling between work-related sites, such travel is incidental to employment and an
injury sustained during such travel is compensable).
Workers’ Compensation > In the Course of Employment > Injuries Before Leaving
Employee’s Home
When an employee’s home does not qualify as a work site and the injury occurs while
performing an activity unrelated to employment and “before [a] journey [between the home
and work] has begun[,]” the injury falls outside the course of employment. Prince
George’s Cty. v. Proctor, 228 Md. App. 579, 589, 591 (2016).
Circuit Court for Baltimore County
Case No. 03-C-16-005618
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1289
September Term, 2017
SCHWAN FOOD CO., ET AL.
v.
RYAN FREDERICK
Leahy,
Reed,
Salmon, James P.
(Senior Judge, Specially Assigned),
JJ.
Opinion by Leahy, J.
Filed: June 27, 2019
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2019-06-27 11:01-04:00
Suzanne C. Johnson, Clerk
“So be sure when you step,
Step with care and great tact.
And remember that life’s
A Great Balancing Act.”
Dr. Seuss
“Oh, The Places You'll Go!”
(1990)
Technological innovation enables citizens of Maryland to work for companies
located anywhere in the world, at any time, from any place in the State.1 This modern
expediency drives the primary issue before us: whether an injury that an employee sustains
while leaving his or her home to travel to a work-related site can be deemed to have
“arise[n] out of and in the course of employment.”2 In examining this issue, we must
address a matter of first impression under Maryland workers’ compensation law; namely,
whether an employee’s home can qualify as a work place or work site.
Appellee, Ryan Frederick, worked as a customer service representative for
1
Dawn R. Swink, Telecommuter Law: A New Frontier in Legal Liability, 38 Am.
Bus. L. J. 857, 857-61 (2001) (exploring the growing presence of “home-based employees”
or “home office workers” due to advances in information technology that are shifting the
focus away from centralized workplaces to decentralized workplaces, and the resultant
effect on employer liability); see also Kenneth G. Dau-Schmidt, The Impact of Emerging
Information Technologies on the Employment Relationship: New Gigs for Labor &
Employment Law, 2017 U. Chi. Legal F. 63, 63, 69-73 (2017) (exploring generally the
legal consequences of how information technology has altered aspects of the employment
relationship, including the ability to allow “greater disaggregation of the work process in
space and time” such that employees can undertake production from geographically
disparate workplaces throughout the United States or abroad).
Maryland Code (1991, 2016 Repl. Vol.), Labor and Employment Article (“LE”),
2
§ 9-101(b)(1).
appellant, Schwan Food Company (“Schwan”),3 which is based in Minnesota with no local
offices in Maryland. His job entailed traveling in his personal car to various grocery stores
throughout Maryland to meet Schwan’s delivery drivers and receive inventory deliveries
for each of his accounts. On the morning of January 28, 2016, while still at home, Mr.
Frederick used his employer-provided handheld computer to download his route for the
day. His plan was to drop his son off at daycare on the way to his first account, the Walmart
in Ellicott City. Unfortunately, he slipped on black ice on the sidewalk by his car in front
of his home and suffered injury to his right leg.
Mr. Frederick filed a claim with the Workers’ Compensation Commission
(“WCC”). Schwan maintained that Mr. Frederick’s injury was not compensable because
he was on his way to drop off his son—a personal errand. The WCC issued a summary
decision denying Mr. Frederick benefits after finding that “the claimant did not sustain an
accidental injury arising out of and in the course of employment[.]” Mr. Frederick
petitioned for judicial review in the Circuit Court for Baltimore County on May 24, 2016,
and requested a jury trial.
Mr. Frederick’s case proceeded to trial before a jury on July 25, 2017. At the close
of Mr. Frederick’s case, the circuit court denied Schwan’s motion for judgment and, at the
close of all evidence,granted Mr. Frederick’s motion for judgment. The court concluded
that Mr. Frederick had been working from his “home office” before he set out to travel to
his first account, and consequently, the injury that he sustained “arose out of and in the
3
The other appellant is Schwan’s insurer, the New Hampshire Insurance Company.
2
course of his employment.”
Schwan timely appealed to this Court from the order reversing the WCC’s decision.
Schwan challenges the circuit court’s determination that Mr. Frederick’s injuries arose out
of and in the course of his employment with Schwan.
We hold that injuries sustained by the employee en route from the employee’s home
work site to another work-related site may arise out of and in the course of employment.
As detailed in our discussion, in order to determine whether a home qualifies as a work
site, we adopt a three-part test rooted in eminent principles of workers’ compensation law.
In this case, we conclude that material facts remain in dispute as to whether Mr. Frederick’s
home qualified as a home work site and whether he had commenced his work day and was
fulfilling his work duties, or something incident thereto, at the time of his injury. Because
it was for the jury to resolve these predicate factual issues, the circuit court erred in ruling,
as a matter of law, that Mr. Frederick’s injury arose out of and in the course of employment.
Accordingly, we remand for a new trial.
BACKGROUND
A. The Petitioner’s Case
Mr. Frederick was the only witness to testify at his trial in the circuit court. He
explained that he was employed with Schwan for about four years4 and described his job
duties as a customer service representative:
I would travel [] from store to store, meet with decision[] making personnel
in the store, store managers, department managers, decide display aspects,
like the end caps in the store where [] they have stuff at the end of the aisles
4
Mr. Frederick testified that he is no longer employed with Schwan.
3
. . . on display, decide sales, [ascertain the] space[s] they were going to give
me in the shelves. Decide, you know, quantity and inventory that the store
may have wanted. Also helping replenish[] the shelves [] to make sure the
shelves stayed full for customers to come in and purchase product.
According to Mr. Frederick, he could not have held his position as a customer service
representative without having his own car to travel to each of his accounts.5 Schwan
reimbursed him for mileage incurred while traveling between his first and last accounts
through a “fuel card that was pre-loaded at the beginning of each week” with funds to cover
his travel expenses. Mr. Frederick admitted that Schwan did not normally reimburse him
for mileage he incurred driving to his first account—although he did claim this mileage for
tax purposes.
The “Home Office”
Mr. Frederick testified that his office was at his home in Mount Washington where
he had a computer and printer set up on his dining room table for work. Although Schwan
did not pay for the computer, printer, or internet at his house, Mr. Frederick did receive an
employee discount on his internet service pursuant to an agreement between the internet
service provider and Schwan. Mr. Frederick asserted that Schwan was aware that he
received this discount. Schwan also provided him with the Intermac—a small handheld
computer that he used to complete work-related tasks. The Intermac required a WiFi
connection, so he would use his Intermac at home where he had WiFi to complete his daily
downloads and uploads of sales information. Mr. Frederick used the Intermac to enter his
5
For the sake of consistency, we shall refer to individual grocery stores as separate
“accounts.”
4
reimbursable mileage for each day as well. He conceded that he could run the downloads
on his Intermac after he left his home so long as he could connect to WiFi; however, he
was unsure whether the Walmart in Ellicott City, or any of his accounts, had WiFi.
Additionally, Schwan mailed certain work materials, such as big display posters and
coupons for grocery stores, to Mr. Frederick’s home about “once or twice a week.” He
kept all of these work materials at his home because there was nowhere else he could keep
them; he was prohibited from storing the materials at the grocery stores, and many of the
materials were “too large to even store in [his] car and still be able to use [his] car on a
daily basis.”
Mr. Frederick’s Typical Work day
At trial Mr. Frederick described his typical work day around the time of his accident.
He did not have set working hours; however, his typical work day began in the morning at
his home “as soon as the phone started ringing really.” He stated, “[p]eople would start
calling you at [] 4 a.m. because that’s when they were there and . . . available.” Mr.
Frederick related that his daily routine back in January 2016
. . . would start in the morning. . . . Before I left my home I would do my
download in my hand held. That kind of gave me an idea of what stores you
had to go to that day. Gave me an idea of where the truck drivers were going
to be going because we did not deliver our own product.
We had to coordinate with truck drivers in the morning before we
went out [in order] to figure out [] which other customer service route stores
[the drivers] had on hand . . . so we knew where we were going and as to
where the truck was going so you weren’t kind of running around trying to
chase a delivery truck.
Mr. Frederick would then use the information from the downloads to contact the driver and
other customer service representatives who had deliveries on that same truck to determine
5
the order of the deliveries. He would complete these communications from his home
before leaving to drive to his first account.
When asked what other “work activities” he conducted at his home, Mr. Frederick
replied:
[F]rom home, my day would actually start much earlier as a lot of the
department managers [who work during] the receiving hours [at] grocery
stores [work] overnight . . . so there were a lot of times where . . . you made
contact with these people before you left your home [] to decide if they were
going to give you display space, or, if they were going to give you that, you
had to coordinate that with them before they left the store in case you didn’t
make it to the store in time[.]
Once these preliminary communications were completed, Mr. Frederick would leave his
home and travel from store to store using his personal vehicle to carry out his other work
duties. He would typically hold business meetings with Schwan employees in grocery
store parking lots or, for “large meetings where everyone was to be involved,” Schwan
would rent out a room in a public library or hotel.
The Morning of the Accident
On January 28, 2016, Mr. Frederick related that the weather was “crappy” and that
Maryland had just experienced one of the biggest snow storms in a long time. He testified:
That day started, I don’t remember exactly what time. I got up, I did my
download. I get in contact with my driver[] to kind of figure out where he
was going to be. Because of inclement weather the drivers tend to start a
little bit later to give the road some time to get cleared up so they’re not
driving the big trucks out on the roads with icy conditions.
I had been in contact with my drivers. I ha[d] done some e-mails.
That’s . . . about it that morning.
He left his home around 9:00 a.m. to go to his first account, the Walmart in Ellicott City.
Mr. Frederick testified that he had his work materials in his hands and his five-year-old son
6
walking beside him, “[o]ff to the left somewhere.” He explained that he planned to drop
off his son at daycare on his way to the Walmart.6
Mr. Frederick explained that dropping off his son at daycare was not his primary
objective when he left the house, and that if he were not going to work, his son would not
have been going to daycare. The daycare was a “block and a half” off-route from his house
to the Walmart.
Ultimately, Mr. Frederick “never made it to the car.” He fell on black ice that was
on the walkway to his car outside of his house and suffered a fracture to his right leg, which,
the record reflects, required open reduction internal fixation and a subsequent surgery.
B. Motion for Judgment
At the close of Mr. Frederick’s case, Schwan moved for a motion for judgment.
Schwan argued that “it’s clearly uncontradicted that [Mr. Frederick] was on his way to his
son’s daycare at the time that this injury occurred[.]” When the trial judge asked why this
made a difference, Schwan pressed that Mr. Frederick’s intent to drive his child to daycare
established that Mr. Frederick was not in the course of his employment at that time.
Further, Schwan continued, even if the court were to find that he was in the course of his
employment, Mr. Frederick “deviated once he left the threshold of his house and continued
to his son’s daycare and any injuries during that trip . . . don’t arise out of and in the course
of his employment[.]” Schwan had to concede that obviously, regardless of whether Mr.
Frederick had to take his child to daycare, it anticipated Mr. Frederick would be walking
6
Mr. Frederick noted there was no specific time by which his son needed to be at
the daycare.
7
out to his car to go to his first account that morning. Schwan clarified, however, that it was
not arguing that the “going and coming rule” precluded Mr. Frederick’s recovery of
benefits.
Counsel for Mr. Frederick responded that the injury occurred “during a time and
place where [Schwan] would expect him to be” because his workday began in his home
when he completed his downloads and spoke with his drivers. Counsel argued that the
injury was also compensable under the dual-purpose doctrine because “the daycare is two-
thirds of the way to where his first stop is, you can’t argue that . . . two-thirds of the trip is
not providing a benefit to the employer.”
After hearing Schwan’s rebuttal, the trial judge denied Schwan’s motion for
judgment. Following a brief recess, Schwan rested its case and both parties moved for
judgment. The court, again, denied Schwan’s motion for judgment but granted Mr.
Frederick’s motion for judgment as a matter of law, ruling that his injury arose out of and
in the course of his employment. The court explained:
In this case here the employer effectively requires the employee to be
where the accident occurred because it did not have an office in Maryland
making it necessary for the employee to establish an office of some type to
perform work for his employer.
***
Although Mr. Frederick did testify that he was going to make a stop
at his child’s daycare, he did have to leave his home office to [] go get to a
customer’s location. And this was [] not only a location where the employee
may be working for the employer, [] effectively it happened at the place
where he was working for the employer because he had established a
presence at his home office. And also going to the customer’s location is not
only consistent with his work, it is essential based on the nature of Mr.
Frederick’s job that he provided testimony regarding.
The trial judge also ruled, in the alternative,
8
that the exceptions to the going and coming rule, that . . . at least two of them
apply – that the employee’s mode of transportation was required by the
employer and that the employee was injured during a trip that served both a
personal and business purpose.
The court entered an order on August 2, 2017, reversing the decision of the WCC
and remanding the matter for entry of an order stating that Mr. Frederick sustained an
accidental injury arising out of and in the course of employment. Schwan thereafter filed
its timely appeal to this Court on August 17, 2017.
I.
STANDARD OF REVIEW
In this appeal, we examine whether the circuit court erred in granting judgment in
favor of Mr. Frederick and ruling, as a matter of law, that his injury arose out of and in the
course of his employment. In determining whether the circuit court properly granted
judgment in this case, we consider the idiosyncratic procedure for “appeals” to the circuit
court from decisions of the WCC. See Baltimore Cty. v. Kelly, 391 Md. 64, 74 (2006).
The Court of Appeals in Kelly summarized the methods of appeal available to a party
aggrieved by a decision of the WCC:
A party dissatisfied by the action of the Commission may seek review in a
circuit court by either proceeding on the record made before the Commission
(much like judicial review of the final action of most state administrative
agencies) or receive a new evidentiary hearing and decision before a jury
(much like an original civil complaint brought in a circuit court).
Id. at 67. The latter method of appeal, found in Maryland Code (1991, 2016 Repl. Vol.),
Labor and Employment Article (“LE”), § 9-745(d), affords “an ‘essentially’ de novo trial.”
Id. at 74. Under either method of appeal, however, “the decision of the Commission is
9
presumed to be prima facie correct” and “the party challenging the decision has the burden
of proof.” LE § 9-745(b). Therefore, “a different calculus emerges” with regard to the
burden of production before the circuit court depending on whether the employer or the
claimant chooses to appeal the decision of the WCC. When, like the instant case, the
employer prevails before the Commission, and the claimant elects an appeal under what is
essentially a de novo trial pursuant to § 9-745(d), the parties retain their initial burdens of
proof and persuasion. Kelly, 391 Md. at 75. However, when, unlike in this case, the
employer appeals a decision of the Commission in favor of the claimant and elects a jury
trial under § 9-745(d), “the burden of proof, which was borne by the claimant before the
Commission, switches to the employer before the circuit court.” Id. “The decision of the
Commission is, ipso facto, the claimant’s prima facie case.” Id. (internal citations omitted).
The burden before the trier of fact in the circuit court is “upon the appellant to overcome
the presumption that the decision of the Commission is prima facie correct,” which is why
the proceeding is qualified as an “essentially de novo trial.” Id. at 76 (internal quotations
omitted).
In an appeal from a circuit court’s ruling on a motion for judgment, we conduct “the
same analysis that a trial court should make when considering the motion for judgment.”
D.C. v. Singleton, 425 Md. 398, 406-07 (2012) (citation omitted). In doing so, we consider
“the evidence and reasonable inferences drawn from the evidence in the light most
favorable to the non-moving party.” Beall v. Holloway-Johnson, 446 Md. 48, 63 (2016)
(citation omitted) (quoting Thomas v. Panco Mgmt. of Md., LLC, 423 Md. 387, 393
(2011)). The circuit court may grant a motion for judgment when “the evidence is not such
10
as to generate a jury question, i.e., permits but one conclusion[.]” Address v. Millstone, 208
Md. App. 62, 80 (2012) (citation omitted). More specifically, in the context of a worker’s
compensation case, we follow the general principle that:
[t]he question as to whether an injury arose out of or in the course of
employment is ordinarily, like negligence or want of probable cause, a mixed
question of law and fact, but when the facts have been ascertained and agreed
upon by the parties, or are undisputed, and there is no dispute as to the
inferences to be drawn from the facts, the question becomes one of law and
may be decided by the court.
Harrison v. Cent. Constr. Corp., 135 Md. 170, 878 (1919); Atlantic Refining Co. v.
Forrester, 180 Md. 517, 527-29 (1942). Accordingly, “if there is any evidence, no matter
how slight, that is legally sufficient to generate a jury question, the case must be submitted
to the jury for its consideration.” Marrick Homes LLC v. Rutkowski, 232 Md. App. 689,
698 (2017) (emphasis added) (internal quotation marks omitted).7 In sum, “[w]e review
the trial court’s grant of [the] [m]otion for [j]udgment de novo, considering the evidence
and reasonable inferences drawn from the evidence in the light most favorable” to the
employer in this case, Gales v. Sunoco Inc., 440 Md. 358, 363 (2014) (internal quotations
omitted), and we will remand if we determine that the evidence generated a question for
the jury, Marrick Homes LLC, 232 Md. App. at 698.
II.
DISCUSSION
Schwan’s primary contention on appeal is that Mr. Frederick’s injury did not, as a
7
In Marrick Homes LLC, this Court recognized that “[w]e review the grant of a
motion for judgment under the same standard as we review grants of motions for judgment
notwithstanding the verdict.” 232 Md. App. at 697 (citation omitted).
11
matter of law, occur in the course of his employment. First, Schwan argues that Mr.
Frederick did not commence his work day at his home and that he was “not performing or
discharging any actual duty related to his employment” at the time of the injury because he
left his home with the intent to take his son to daycare before traveling to his first account.
According to Schwan, Mr. Frederick’s application of the law “to a salesperson who offices
from home . . . creates a time and space conundrum, in which [Schwan] is deemed liable
for any potential injuries [Mr. Frederick] may endure, despite having no definitive
awareness of where [Mr. Frederick] is or what activities he is participating in prior to arrival
at the first [account].” Schwan characterizes Mr. Frederick’s anticipated travel as a
personal deviation, arguing that the fact that Mr. Frederick left his home with the intent to
“eventually” go to a work-related site did not bring the trip within the scope of his
employment. For this same reason, Schwan asserts that the dual-purpose doctrine does not
apply to bring the injury within the course of employment. And, Schwan contends, because
Mr. Frederick was not in the course of his employment, his injury also did not arise out of
his employment and fails the positional-risk test.
Mr. Frederick responds that he “was injured during a time frame and in a location
that his employer could expect him to be in the performance of his job duties.” Specifically,
he avers that his work day commenced when he conducted some work activities at his
home because it was his “base of work operations.” Moreover, he claims his work day
extended through the time of the injury because he left his home with the purpose of
carrying out his work obligation to arrive at his first account. Mr. Frederick further argues
that although the purpose of his travel was work-related, even if the travel served some
12
personal purpose because it was “convenient” to take his son to daycare, his injury would
still be compensable under the dual-purpose doctrine. Regarding the positional-risk test,
Mr. Frederick maintains that his injury was compensable because, but for his work
obligation to travel to his first account, he would not have been in the location where he
was injured.
This case involves a constellation of factual determinations in the analysis of
whether Mr. Frederick’s injury occurred “in the course of” his employment. Namely,
whether, under the terms and conditions of his employment and the totality of the
circumstances, Mr. Frederick’s home was a place where he could reasonably have been in
the performance of his work duties and whether he had commenced his work day and was
fulfilling his work duties, or something incident thereto, at the time he left to go to his first
account. First, we review the applicable legal framework.
A. The Maryland Workers’ Compensation Act
Over a century ago, the Maryland Workers’ Compensation Act (“the Act”) became
law. 1914 Md. Laws, ch. 800. Today the Act is codified at LE §§ 9-101 through 9-1201,8
and instructs that “[t]his title shall be construed to carry out its general purpose.” LE § 9-
102(a).9 The Court of Appeals has interpreted the Act’s purpose to be “to protect workers
8
During the 1991 legislative session, the General Assembly introduced H.B. 1, ch.
8, Laws of 1991, for the purpose of adding the “Labor and Employment Article” to the
Code of Maryland and repealing and recodifying, inter alia, the laws of Maryland
pertaining to workers’ compensation. Specifically, H.B. 1 repealed and recodified Article
101 as Title 9 of the Labor and Employment Article.
9
The stated purpose of the Act in 1914 was to “promote the general welfare of this
State by providing compulsory insurance against accident or death of workmen engaged in
13
and their families through compensation for a loss of earning capacity due to workers’
injuries that arise out of and in the course of employment.” Calvo v. Montgomery Cty.,
459 Md. 315, 324 (2018) (citation omitted). The Act is remedial in nature and, therefore,
“is to be construed as liberally in favor of injured employees as its provisions will permit
in order to effectuate its benevolent purposes as remedial social legislation.” 10 Id. (quoting
Alitalia Linee Aeree Italiane v. Tornillo, 329 Md. 40, 48 (1993)).
Under the Act, “each employer of a covered employee shall provide compensation
in accordance with this title to[] the covered employee for an accidental personal injury
sustained by the covered employee[.]” LE § 9-501(a). An “accidental personal injury” is
defined as one which “arises out of and in the course of employment[.]” LE § 9-101(b)(1).11
extra-hazardous employments in this State, and providing for the form, kind and method
of such insurance and the incidents thereto[.]” 1914 Md. Laws, ch. 800, Preamble.
10
Section 9-102(b) clarifies that: “The rule that a statute in derogation of the
common law is to be strictly construed does not apply to this title.” LE § 9-102(b). See
Montgomery Cty. v. Robinson, 435 Md. 62, 83 (2013) (explaining that because “we have
repeatedly emphasized the Act’s remedial nature and that it ‘should be construed as
liberally in favor of the injured employees as its provisions will permit in order to effectuate
its benevolent purposes[,]’ we, therefore, ‘do not apply the canon of construction that a
statute in derogation of the common law should be strictly construed.’”).
11
The long-standing requirements for establishing an “accidental personal injury”
have remained substantively unchanged since the Act’s inception in 1914. The Court of
Appeals, in reviewing the legislative bill file on H.B. 1 and H.B. 692 (the companion bill
to H.B. 1), has explained that the goal of the Act’s recodification was “to rewrite the law
in a more clear and concise manner without making any substantive changes. . . . Thus,
while the language of a revision differs from the derivative statute, the legislative intent
does not change.” Belcher v. T. Rowe Price Found., Inc., 329 Md. 709, 743 (1993) (internal
quotations omitted).
Since 1992, there have been no amendments to LE § 9-501, and § 9-101 has been
amended only twice without any substantive change to the “arising out of and in the course
of” requirements for purposes of sustaining a compensable accidental personal injury. The
2009 amendments focused primarily on the total amount of death benefits payable to
14
Thus, “[t]he statute requires that the claimant satisfy two conditions precedent to bring a
claim within the ambit of the Act—both ‘arises out of’ and ‘in the course of’ employment
must be proven.” Livering v. Richardson’s Restaurant, 374 Md. 566, 574 (2003) (emphasis
added) (citations omitted). Whether an injury arises out of and in the course of employment
is informed by the “facts and circumstances of each individual case.” Id.
1. “Arises out of employment”
The “arises out of” prong of the statute “refers to the causal connection between the
employment and the injury.” Id. at 574 (citing Montgomery Cty. v. Wade, 345 Md. 1, 9-
10 (1997)); see also Montgomery Cty. v. Smith, 144 Md. App. 548, 556 (2002) (“Arising
out of employment ‘refers to the cause or origin of the accident.’”) (citation omitted). An
injury “arises out of” employment “‘when there is a causal connection between the
employment and the injury such that the injury ‘results from some obligation, condition,
or incident of employment.’” Prince George’s Cty. v. Proctor, 228 Md. App. 579, 588
(2016) (quoting Livering, 374 Md. at 574). The Court of Appeals has instructed that “[t]he
term ‘arises out of’ requires, not that the performance of an employment-related task be the
direct or physical cause of the injury, but, more broadly, that the injury be incidental to the
employment, such that it was by reason of the employment that the employee was exposed
to the risk resulting in the injury.” Mulready v. Univ. Research Corp., 360 Md. 51, 57
partially dependent individuals. S.B. 863, ch. 616, Laws of 2009. During the most recent
session, the General Assembly passed S.B. 94, ch. 5, Laws of 2019, thereby amending the
name of the Consumer Price Index used to calculate compensation awards for permanent
total disability benefits. On March 27, 2019, the bill was enacted into law under Article II,
§ 17(b) of the Maryland Constitution, and will go into effect on July 1, 2019.
15
(2000) (citation omitted).
The Court of Appeals in Mulready first adopted the test currently used to determine
“arising out of” causation: the positional-risk test. Id. at 59. The test originally sought to
determine “arising out of” causation in cases involving traveling employees. The Court
pronounced the positional-risk test as:
Absent facts indicating a distinct departure by the employee on a personal
errand that would not be in the contemplation of the parties, an injury to a
traveling employee generally is compensable so long as it occurred as a result
of an activity reasonably incidental to the travel that the employer required.
Id. at 66.
Several years later, in Livering, the Court of Appeals considered whether an
accidental injury suffered by an employee on her day off, but while checking her work
schedule at her place of employment, was compensable under the Act. 374 Md. at 571.
In reaching its decision, the Court refined the positional-risk test to focus the inquiry on
whether the injury would have been sustained “but for” the fact that the conditions and
obligations of employment placed the employee where the injury occurred. Id. at 575
(citation omitted). The Court determined that a necessary component of Ms. Livering’s
employment was to check her schedule, and that her employer knew that she and other
employees visited the restaurant to check their schedules and acquiesced in the custom. Id.
at 580. Therefore, “[c]hecking her scheduling was [] incident to her employment.” Id.
Moreover, because she was injured while checking her schedule, the Court further
concluded that Ms. Livering “would not have been injured but for the fact that she visited
the restaurant to confirm her schedule.” Id. Consequently, the positional-risk test is now
16
applied in circumstances not only involving an employee on work-related overnight travel,
but also in situations “where an employee is injured while engaging in activities incidental
to employment.” Roberts v. Montgomery Cty., 436 Md. 591, 605 (2014).
2. “In the course of employment”
Distinct from the “arising out of” requirement,12 the “in the course of” requirement
of LE § 9-101(b)(1) considers the “the time, place, and circumstances of the accident in
relation to the employment.” Wade, 345 Md. at 11. As Professor Arthur Larson has
explained, the “[i]n the course of” employment requirement “tests work-connection as to
time, place and activity[.]” 2 Arthur Larson, et al., Larson’s Workers’ Compensation Law
§12 at 12-1 (Matthew Bender rev. ed. 2018). Assessing whether an injury occurred in the
course of employment is a fact-specific inquiry. State v. Okafor, 225 Md. App. 279, 286
(2015) (citation omitted). Stated succinctly, “[a]n 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.” Wade, 345 Md. at 11 (citations omitted). The Court of
Appeals’s explanation in Wade enumerates three integral components of an “in the course
of” analysis:
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.” Questions pertinent to this inquiry are: 1) when the
12
We observe from the collection of published opinions on point that the facts
relevant to these two distinct statutory requirements often overlap. See Livering 374 Md.
at 580 (“Because many of the facts relevant to analyzing ‘arising out of’ and ‘in the course
of’ overlap in this particular case, we shall consider the two tests together.”)
17
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. . . . 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.
Id. at 11-12 (citations omitted) (emphasis added). It has also been established, however,
that the phrase “in the course of employment” is not limited to “the actual manipulation of
the tools of the work, nor to the exact hours of work.” Wade, 345 Md. at 12 n.6 (citation
omitted).
The going and coming rule commands that injuries are not considered to have
occurred in the course of employment if sustained while an employee is going to or from
his or her place of work. Calvo, 459 Md. at 329 (citations omitted); Roberts, 436 Md. at
606; Garrity v. Injured Workers’ Ins. Fund, 203 Md. App. 285, 293 (2012) (citations
omitted). “With its genesis in the practical need of drawing a ‘line’ delineating an
employee’s ‘scope of employment,’” Santa Rosa Junior College v. Workers’ Comp.
Appeals Bd., 708 P.2d 673, 677 (Cal. 1985), the going and coming rule addresses the time
and space boundaries of the employment. Cf. Reisinger-Siehler Co. v. Perry, 165 Md. 191,
52 (1933) (“While service on regular hours at a stated place generally begins at that place,
there is always room for agreement by which the service may be taken to begin earlier or
elsewhere.” (emphasis added)). The underlying rationale for the rule is that “employees
are responsible for ensuring their presence at work, and during the commute, they generally
face the same hazards as other commuters. Thus, the risks are not usually ‘directly
attributable to a person’s particular employment.’” Calvo, 459 Md. at 329 (citations
omitted). Such injuries, therefore, are not usually compensable unless they fall within one
18
of the recognized exceptions to the going and coming rule. Okafor, 225 Md. App. at 287.
B. Time, Place, and Activity
As we noted earlier, Schwan attacks the circuit court’s ruling chiefly under the “in
the course of employment” prong of LE § 9-101(b)(1). “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.” Wade, 345 Md. at 11 (citations omitted).
1. Place
a. General Principles
We begin with the “place” component of the “in the course of” prong. The parties
in this case dispute whether Mr. Frederick’s home was a work site. The Act does not define
“work site” or “place of employment,” and we have found no reported decisions in
Maryland that address the issue squarely within the context of injuries sustained by home-
based employees or home office workers. We glean certain principles from both Maryland
and out-of-state cases, however, that guide our analysis of whether the home can be
recognized as a work site under Maryland’s workers’ compensation law.
As a starting point, we recognize Professor Larson’s admonition that, “[t]eachers,
doctors, lawyers, architects, artists, executives—in fact almost any employee—may have
frequent occasion to perform services of some kind at home[.]” Larson § 16.10 at 16-27
(emphasis added); see also Bobinis v. State Ins. Fund, 235 A.D.2d 955, 956 (N.Y. App.
Div. 1997) (warning courts to be cautious in determining when an employee’s home has
become part of the employer’s premises “[a]s it is commonplace for many professional and
19
managerial level employees to take work home”).
Maryland cases that apply the “going and coming” rule have established that an
employee may not claim that work done at home for the employee’s own personal
convenience transforms the personal nature of a “going and coming” trip into a business
trip. See Stoskin v. Bd. of Educ. of Montgomery Cty., 11 Md. App. 355, 358 (1971)
(employee who reviewed work materials at home and was injured the next morning on a
public street upon arriving at her place of work could not rely on the work done at home to
recover under the dual-purpose exception to the going and coming rule); see also Fairchild
Space Co. v. Baroffio, 77 Md. App. 494, 498 (1989) (employee who chose to prepare a
presentation at home and was injured the next morning in a car accident while going to her
place of work could not rely on the work done at home to recover under the dual-purpose
exception).
The resounding rationale offered in these cases is that where there is no evidence as
to the nature of the employment agreement with respect to off-premises work, the courts
are unwilling to hold that an employee’s unilateral decision to select an off-premises place
in which to do work furthers the employer’s interests. See Stoskin, 11 Md. App. at 359
(“There is no evidence showing any agreement, either express or implied, between
[employee] and her employer that [employee] was undertaking, outside of her regular place
of employment, a special assignment for her employer’s benefit[.]” (emphasis added)); see
also Fairchild, 77 Md. App. at 499 (“Because there is no evidence that [employer] required
[employee] to perform the work at home, the ‘dual purpose’ exception to the ‘coming and
going’ rule is inapplicable.” (emphasis added)).
20
Other important precepts that we draw from our decisional law include that an
analysis of whether a home can be deemed a work site must take a totality of the
circumstances approach, and that the fact finder must determine the issue according to the
“facts and circumstances of each individual case.” Livering, 374 Md. at 574. As the Court
of Appeals has instructed, “[t]he word ‘employment,’ as used in [the] Act, includes not
only the actual physical labor but the whole period of time or sphere of activities.” Saylor
v. Black & Decker Mfg. Co., 258 Md. 605, 610 (1970) (quoting Watson v. Grimm, 200 Md.
461, 466 (1952) (emphasis added)). As such, a determination as to the “zone of protection”
provided by the Act is one that must be “made in each case on its particular facts.” Id.; see
also Okafor, 225 Md. App. at 286 (explaining that in analyzing whether an injury occurred
in the course of employment, “the entire sphere and period of employment may be
considered and also whether the employee has placed himself outside his employment, and
if so, how far. This is a fact-specific inquiry.”) (internal quotations omitted) (emphasis
added)).
b. Larson’s Indicia of a Home Work Site
With the aforementioned principles in mind, we find persuasive Professor Larson’s
approach to determining when a home qualifies as a place of employment:
When reliance is placed upon the status of the home as a place of employment
generally, instead of or in addition to the existence of a specific work
assignment at the end of the particular homeward trip, three principal indicia
may be looked for: [1] the quantity and regularity of work performed at
home; [2] the continuing presence of work equipment at home; and [3]
special circumstances of the particular employment that make it necessary
and not merely personally convenient to work at home.
21
2 Larson § 16.10[2] at 16-24 (emphasis added).13 Like most other jurisdictions that have
analyzed the question of when the home becomes a work site, we will look to Larson’s
“three principal indicia.” 2 Larson § 16.10[2] at 16-24; see, e.g., Kaycee Coal Co. v. Short,
450 S.W.2d 262, 265 (Ky. Ct. App. 1970) (finding, without expressly citing, Larson’s three
“indicia of genuine home employment premises status” to be present under the facts of the
case); Bobinis, 235 A.D.2d at 956 (concluding that the employee’s home did not achieve
the status of a work site under Larson’s framework); Kahn v. State, 289 N.W. 2d 737, 743
(Minn. 1980) (determining that injuries sustained while en route from another work site to
the home was compensable because the home qualified as a work site under Larson’s test);
Wilson v. Serv. Broads. Inc, 483 So.2d 1339, 1342 (Miss. 1986) (applying Larson’s test to
determine whether employee’s home constituted a place of work for purposes of
determining whether the employee’s injury was compensable as an exception to the going
and coming rule); Manzo v. Amalgamated Industries Union Local 76B, 575 A.2d 903, 906-
13
Maryland courts have consistently quoted, with approval, Professor Larson’s
discussions on various workers’ compensation issues. See, e.g., McElroy Truck Lines, Inc.
v. Pohopek, 375 Md. 575, 593 (2003) (quoting, with approval, Larson’s treatise in
introducing a comparative test for trucking and other transitory types of employment); see
also Mulready, 360 Md. at 55 (quoting, with approval, Larson’s treatise in adopting the
positional-risk test); Mackin v. Harris, 342 Md. 1, 7-10 (1996) (adopting a narrower
version of a test enunciated in Larson’s treatise for purposes of determining when a
subsequent injury is compensable under the Act); Alitalia Linee Aeree Italiane, 329 Md. at
46-47 (adopting Larson’s own conveyance exception to the going and coming rule); Darby
v. Marley Cooling Tower Co., 190 Md. App. 736, 744-45 (2010) (finding Larson’s
discussion on standing instructive on this Court’s interpretation of Maryland’s rule on
standing to appeal WCC decisions); Barnett v. Sara Lee Corp., 97 Md. App. 140, 149
(1993) (finding Larson’s discussion of fringe benefits to be “persuasive” in interpreting the
meaning of a term in the Act); Fairchild Space Co., 77 Md. App. at 498-99 (turning to
Larson’s rendition of the dual-purpose exception).
22
08 (N.J. Super. Ct. App. Div. 1990) (applying Larson’s test to determine whether
employee’s home constituted a work place for purposes of rendering an injury sustained
during travel from the home in New Jersey to the employer’s office in New York
compensable); Hille v. Gerald Records, 242 N.E.2d 816, 819 (N.Y. 1968) (finding that the
employee’s home had achieved the “status of a place of employment” under Larson’s three
indicia for purposes of applying the dual-purpose exception); see Black River Dairy Prods.,
Inc. v. Dep’t of Industry, Labor & Human Relations, 207 N.W.2d 65, 69 (Wisc. 1973)
(applying Larson’s test to conclude that the employee’s home constituted a work site and
that he was, therefore, already at work at the time of the injury).
The Wisconsin Supreme Court in Black River addressed, inter alia, “whether the
evidence [wa]s sufficient to sustain the finding that the workmen’s compensation claimant,
who was injured in a fall going from his home to his delivery truck, was performing
services incidental to his employment[.]” 207 N.W.2d. at 66. Black River Dairy Products
(“Black River”) employed Donald Smith as a salesman for one of its products, Roma Pizza.
Id. In his role as a salesman, Mr. Smith promoted, sold, and delivered Roma Pizzas to
various customers. Id. Mr. Smith made his deliveries with an employer-provided delivery
truck. Id. Mr. Smith did not have fixed working hours and used his own discretion in
determining the amount of hours he worked per day. Id. His “practice,” however, was to
leave his home around 7 a.m. so that he could arrive at his first customer by 8 a.m., and
then to work an average of 10 to 14 hours per day. Id. Because the company’s office was
almost 200 miles away from Green Bay, where Mr. Smith lived, Black River did not require
him to report to the office. Id. Mr. Smith, instead, conducted his bookwork and business
23
calls from his home. Id. He also received a weekly stipend of $20 for payment of
“electricity, phone calls, and promotion expenses.” Id. Black River had about 40 other
employees working the same position as Mr. Smith and “they all operated the same way.”
Id.
On the night before the accident, Mr. Smith prepared for the next day’s route in his
“customary manner”; he loaded up his delivery truck with pizzas and parked the truck in
his driveway, which allowed him to plug the truck’s electrical cord into his home and
activate the truck’s freezer unit to keep the pizzas frozen for the next day. Id. The next
morning, Mr. Smith left his home through a back door, intending to get into his delivery
truck to drive to his first customer of the day. Id. at 66-67. Unknown to Mr. Smith, there
was an invisible sheet of ice on the sidewalk and driveway to his home. Id. at 67. He
slipped and fell while walking to his truck and suffered a back injury. Id.
Reversing the trial court’s decision, the Wisconsin Supreme Court held that Mr.
Smith’s injury arose out of and in the course of his employment.14 Id. at 69. The Court
14
On the basis of the Wisconsin workers’ compensation statute, the Court
determined that the case could be analyzed by applying either (1) the “traveling salesman”
rule or (2) an exception to the “going and coming” rule. Id. at 67, 68-69. The Court began
with Wisconsin’s traveling-salesman exception. Id. at 68. This exception provided that,
when an employee’s job is to travel on behalf of an employer and to do work away from
the employer’s premises, the employment begins as soon as the employee leaves his or her
home to go to the first work-related site. Id. at 68. Applying this exception, the Court
observed that Mr. Smith’s duty as a salesman required travel on behalf of the company and
work away from the company’s premises “by traveling within a prescribed route promoting
business.” Id. Furthermore, he was injured while acting in a customary manner—walking
to his truck with the intent to go to his first stop and to perform his duty as a salesman. Id.
Accordingly, the Court concluded that his injury fell within the scope of his employment
because Mr. Smith’s workday began as soon as he left his home and he was performing
work for the benefit of his employer at the time of the injury. Id.
24
looked to Professor Arthur Larson’s “three principal indicia” in order to determine whether
Mr. Smith’s home could be deemed the premises of the employer for purposes of falling
under the exception to the going and coming rule under Wisconsin’s workers’
compensation statute. Id. at 69. Employing Larson’s framework, the Court observed that
Mr. Smith returned home every day to complete work-related tasks and also kept the
employer-provided delivery truck at his home because it required an electrical connection
to keep the employer’s products frozen. Id. The “only reasonable inference,” the Court
observed, was that Mr. Smith did not work at home for his personal convenience, “but
because the employer furnished him no other place to do this work.” Id. Moreover, Black
River’s practice of giving Mr. Smith a weekly stipend to pay for certain home-related
expenses demonstrated its awareness and approval of Mr. Smith’s practice of using his
home as a place of employment. Id. The Court concluded that Mr. Smith’s home “should
be deemed the premises of his employer” and, therefore, Mr. Smith was already at work at
the time of the injury. Id.
By contrast, New Jersey’s intermediate appellate court in Manzo applied Larson’s
three principal indicia and concluded that the employee’s home did not qualify as a work
site. 575 A.2d at 907-08. Mr. Manzo was the president of Industrial Union Local 76B (“the
Union”). Id. at 904. At the time of his death, Mr. Manzo was driving a car, leased by the
Alternatively, the Court analyzed the case under Wisconsin’s statutory exception to
the going and coming rule. Id. The statute established that the premises of an employer,
for purposes of sustaining compensable injuries while going to or from work, encompassed
“the premises of any other person on whose premises service is being performed.” Id. at
69.
25
Union, from his home in New Jersey to the Union’s office in New York City when he was
struck and killed by another automobile. Id. Mr. Manzo’s wife subsequently filed a claim
for dependency benefits with the Workers’ Compensation Court, which ultimately awarded
benefits and concluded that the “going and coming rule” did not preclude compensation.
Id.
The workers’ compensation judge found that Mr. Manzo’s home had become a “job
site” because he regularly used his home to conduct union business and that on the morning
of his death, Mr. Manzo was performing union business. Id. at 904-06. Specifically, the
judge found that (1) Mr. Manzo’s office was located in New York City where his secretary
and all appropriate office equipment were located; (2) the Union had an office in New
Jersey which contained other appropriate office equipment; (3) Mr. Manzo, in his role as
the president, often conducted union business from his home and kept all business records,
as well as a phone for which the Union paid, at his home; and (4) Mr. Manzo had done
some union work at home before leaving for his New York office on the day of the accident.
Id. at 905. Based on these findings of fact, the judge concluded that Mr. Manzo’s trip
occurred while “he was going from one job site to another and thus arose out of and in the
course of his employment.” Id. The New Jersey intermediate appellate court disagreed.
In addressing the compensation judge’s conclusion that Mr. Manzo’s home had
become a job site, the court narrowed its analysis to whether “it [was] necessary for
Mr. Manzo to use his home for the conduct of union business or [whether] it [was] simply
for his personal convenience[.]” Id. at 907. The court applied Larson’s framework and
prior appellate decisions in and outside of New Jersey, and rejected the compensation
26
judge’s conclusion that “Mr. Manzo’s work related activities at home were for the benefit
of the Union, as opposed to his own convenience, [a]s not supported by the evidence”
because the Union had provided offices in both New York and New Jersey containing
business equipment. Id. at 907. Therefore, the Court disagreed with the conclusion that
Mr. Manzo was traveling from one job site to another as “there [wa]s no dispute that, at
the time of the accident preceding Mr. Manzo’s death, he was on his way from his home
to his office in New York City.” Id. at 908.
Principles contained in Maryland law require an enhancement to Larson’s third
prong. In evaluating whether special circumstances of the employment rendered it
necessary, and not merely personally convenient, for the employee to work at home (the
third prong), there must also be evidence that the employer acquiesced to the employee
regularly using his or her home as a work site, or reasonably should have known the
employee was regularly using the home as a work site. The Court of Appeals’s analysis in
Livering is instructive.
As previously discussed supra Part.A.1., the employee in Livering was injured on
her day off while checking her work schedule at her place of employment. 374 Md. at 571.
Central to its determination that checking her work schedule at the restaurant was a task
incident to her employment was the Court’s recognition that although “[t]he employer
neither required nor prohibited employees from visiting the establishment to check the
schedule, [] it knew about and acquiesced in the custom.” Id. at 580 (emphasis added).
“Moreover, by unexpectedly changing the work schedule, the employer impliedly required
employees constantly to be aware of it.” Id. Consequently, the Court held that because
27
Ms. Livering’s injury “occurred on the employer’s premises while performing and as a
result of, a task incident to her employment,” her injury arose out of and in the course of
employment. Id. at 580.
The Court of Appeals more recently in Roberts looked again to whether the
employer acquiesced to the firefighter’s activities at a certain fire station in that case. 436
Md. at 597-98. At the time of Mr. Roberts’s injury, he was on “light duty” and was
traveling from physical training at a nearby high school, which his employer encouraged,
to his regular duty station to pick up his mail. Id. at 597-98. The Court concluded that the
regular duty station was a work-related site to which Mr. Roberts was traveling at the time
of his injury “because the mail he was picking up was that left for him at the site and the
practice of gathering the mail was one about which his supervisors were aware. As a result,
the County ‘acquiesced’ in Mr. Roberts’s act of gathering the mail at Fire Station 19.” Id.
at 606-07 (citing Livering, 374 Md. at 580) (emphasis added). Given this determination,
together with the County’s concession that the physical training rendered the high school
a work-related site, the Court held that Mr. Roberts’s travel was incidental to his
employment and, therefore, the injury he sustained was covered by the Act. Id. at 607.
We observe that other jurisdictions that have adopted Larson’s framework have
spoken to the requirement that the employer know about or acquiesced to an employee
regularly using his or her home as work site. See, e.g., Black River Dairy Prods., 207
N.W.2d at 69 (concluding that, in addition to the presence of Larson’s three indicia, the
employer’s practice of giving the employee a weekly stipend for certain home-related
expenses demonstrated its awareness of the employee’s practice of using his home as a
28
work site); cf. Bobinis, 235 A.2d at 956-57 (holding that an employee’s home did not
achieve the status of a work site under Larson’s framework and that “[f]urther, [the]
claimant’s supervisor testified that he encouraged his employees to perform their work,
other than hearings, in the office as much as possible”).
In sum, we hold that whether an employee’s home qualifies as a work site under
Maryland workers’ compensation law is established by three indicia: (1) the quantity and
regularity of work performed at home; (2) the presence of work equipment at home; and
(3) the special circumstances of the employment rendering it necessary, and not merely
personally convenient, to work at home. 2 Larson § 16.10[2] at 16-24. Under the last
(third) prong, the fact-finder should also consider whether the employer acquiesced to the
employee’s use of his or her home as a work site, or reasonably should have known the
employee was regularly using the home as a work site. Cf. Roberts, 436 Md. at 606-07;
Livering, 374 Md. at 580.
2. Time
Even where the home qualifies as a work site, additional factual determinations must
be made to satisfy the “time” component of the “in the course of” prong.15 For example,
even assuming Mr. Frederick’s home qualified as a work site for his job, he must also have
commenced his work day at the time he left to go to his first account in order to bring his
injuries within “the period of [his] employment.” Wade, 345 Md. at 11.
15
We do not undertake an analysis of the “arising out of” prong of LE § 9-101(b)(1),
pursuant to which the fact-finder would consider whether the injury would have been
sustained “but for” the fact that the conditions and obligations of employment placed the
employee where the injury occurred. Livering, 374 Md. at 575.
29
In Proctor, we considered the “pertinent question of when the employment began
and ended” in assessing whether an injury that an employee sustained while leaving his
home was compensable under the Act. 228 Md. App. at 591 (internal quotations omitted).
Proctor, a Prince George’s County police detective, was injured “when he jumped to the
side to avoid knocking over his two-year old son as he and his family were walking out the
front door of their home.” Id. at 582. Det. Proctor had been on vacation the week preceding
the injury and was not scheduled to return to work until two days after the date of the injury.
Id. at 583. When the injury occurred, Det. Proctor was off-duty and was leaving his home
to go pick up his police cruiser from the County’s automotive repair facility. Id. at 583-
84. The WCC denied Det. Proctor benefits, prompting him to petition for judicial review
in the circuit court. Id. 585. Before the circuit court, “the parties agreed that there was no
dispute as to the facts of the case and resolved to determine the legal issue through cross-
motions for summary judgment.” Id. After a hearing, the circuit court reversed the WCC’s
decision, ruling that Det. Proctor’s actions arose out of and in the course of his employment
at the time of the injury. Id. at 586.
Prince George’s County, the employer, appealed to this Court, arguing that Det.
Proctor’s injury was not compensable because he was neither engaged in any law
enforcement activity nor under any directive to retrieve his cruiser at the time of the injury.
Id. at 587. In the alternative, the County posited that the “going and coming” rule precluded
recovery. Id. Ultimately, we held that Det. Proctor’s injuries did not arise out of or in the
course of his employment. Id. at 591. In reaching our holding, we explained:
Although “course of employment” is not strictly limited to the actual labor or to
30
the precise hours of work, it is “generally taken for granted that workers’
compensation was not intended to protect against all the perils of th[e] journey”
between home and work. Injury to a worker that occurs before that journey has
begun falls outside the course of employment.
Id. at 589 (internal citations omitted) (emphasis in original). We derived this principle
from the Court of Appeals’s decision in Police Commissioner of Baltimore City v. King,
219 Md. 127 (1959). In King, the Court of Appeals considered whether the beneficiaries
of a deceased Baltimore City police officer were entitled to death benefits from various
funds. Id. at 129. On the date of the accident, the officer in King had been at his home
watching television with his son and then went upstairs to get ready to report for duty. Id.
at 130. After about five minutes, the officer started down the stairway while partially
dressed and “carrying his shirt, tie, cap, keys, claw and gun.” Id. The officer slipped as he
descended the stairway, accidentally discharging his service revolver and fatally wounding
himself. Id.
The relevant statute for an award of death benefits under the fund at issue—the
Special Fund—required that the officer have been injured “while in the actual performance
of duty” and “while in the actual discharge of duty” in order to recover benefits. Id. at 132-
33. The Court in King construed the scope of the phrase “in the actual performance of
duty” by analogizing it to the terms “out of and in the course of employment” under
Maryland workers’ compensation law. Id. at 134-35. The Court then explained:
We have consistently recognized the general rule that injuries sustained by
employees while going to or returning from their regular place of work do
not “arise out of and in the course of their employment,” but in this case we
are requested to hold that one who is dressing himself prior to starting on his
trip to work is “in the actual performance of duty” or “in the discharge of
duty.” We think this would extend the rule entirely too far.
31
Id. at 135 (footnote omitted). The Court also acknowledged that, although the police
department required the officers to “to hold themselves in readiness for emergency duty,”
the officer must nevertheless be actually discharging his regular duty or emergency duty at
the time of the injury. Id. at 134-35. This led the Court to conclude, “As Patrolman King
was off-duty and not performing or discharging any actual police duty at the time of his
unfortunate accident, we must hold that he was not in the actual performance or discharge
of duty.” Id. at 136.
Returning again to Proctor, we observed, in light of King that at the time of his
injury, Det. Proctor had been on vacation and was not expected to return to work for another
two days; he was injured on his front porch while leaving his home; and, although he was
preparing to make his journey to retrieve his cruiser, he had not yet embarked on this
journey and was not subject to any directive to retrieve the cruiser. Proctor, 228 Md. App.
at 590-91. Given these circumstances, we held that Det. Proctor’s injuries did not occur in
the course of his employment:
Here, as in King, Det. Proctor was “off-duty and not performing or
discharging an actual police duty at the time of his unfortunate accident[.]”
Looking to the pertinent question of “when the employment began and
ended,” we cannot say that Det. Proctor’s injury occurred “within the time
and space boundaries of the employment.” Rather, [Det. Proctor’s] injury
occurred on his own front porch, while he was not on duty, and while he was
“not performing or discharging any actual police duty at the time of his
unfortunate accident.” We disagree that a fall on Det. Proctor’s own front
porch was “within the range of dangers associated with [his] employment.”
Accordingly, we agree with the WCC’s determination that Det. Proctor’s
injury “did not arise out of and in the course of employment as alleged[.]”
Id. at 591 (internal citations omitted) (emphasis added). We also concluded that the going
32
and coming rule was not what barred Det. Proctor’s recovery because his injuries “arose
before he embarked on any work-related journey.” Id. at 591-92. Therefore, we declined
to analyze whether any exception to that rule applied to Det. Proctor’s case. Id. at 592.
3. Activity
Finally, the third component of the “in the course of” prong requires that the injury
also occur “while fulfilling those [work] duties or engaged in something incident thereto.”
Wade, 345 Md. at 11 (citations omitted). In the case in which a home qualifies as a work
site, and an employee has commenced his or her work day before leaving home to travel
to another work-related site, the Court of Appeals’s decision in Roberts explains when the
travel between the two work sites may be incidental to employment.
Thaddus Roberts was a paid firefighter employed by Montgomery County (“the
County”). 436 Md. at 594. Mr. Roberts was working a “light duty” position at the Fire
Department’s main headquarters as a result of a prior work injury. Id. at 596. While on
light duty, Mr. Roberts “worked four [10] hour shifts per week, starting at 7 a.m. and ending
at 5 p.m.” and was encouraged by the Fire Department to engage in two hours of physical
training per shift at any location of his choice. Id. Additionally, Mr. Roberts would go to
Fire Station 19, his “regular duty” station, about once per month to pick up work mail. Id.
On the date of the accident, Mr. Roberts was driving from his physical training at a high
school to Fire Station 19 to gather his mail when he was involved in a car accident. Id. at
597-98.
The WCC denied Mr. Roberts benefits, ruling that he did not sustain an accidental
injury arising out of and in the course of his employment. Id. at 599. Mr. Roberts
33
petitioned for judicial review in the circuit court. Id. The County moved for summary
judgment, arguing that Mr. Roberts’s injury was barred by the going and coming rule. Id.
at 599-600. In response, Mr. Roberts countered that “he was in a place he could reasonably
be expected to be in going from one ‘work-related duty’ of physical training, to another,
checking his work mail, which was ‘acquiesced to by Mr. Roberts’s supervisors,’” and that
“but for” these work-related duties, he would not have been injured. Id. at 600. The circuit
court nevertheless granted the County’s cross-motion for summary judgment and affirmed
the WCC’s decision because the injury occurred while “he was coming and going” to work.
Id. at 600-01 (internal quotations omitted). This Court, in an unreported opinion, affirmed
the trial court’s ruling and reasoned that Mr. Roberts was only “at work” when he was at
the employer’s headquarters, thus Mr. Roberts was only going to work at the time of his
injury. Id. at 601.
The Court of Appeals granted certiorari to address whether the going and coming
rule or the positional-risk test applied to determine whether Mr. Roberts’s injury arose out
of and in the course of his employment.16 Id. at 606. The County conceded that the
physical training was a work-related activity and that “any injury sustained during physical
training” at the high school would have been compensable, but argued that Mr. Roberts
was “not at his work site” until he reached the headquarters. Id. The Court rejected the
County’s argument and determined that Fire Station 19 was a work-related site because
16
As discussed, the going and coming rule takes injuries outside of the course of
employment and, as a result, bars compensation. Therefore, if the going and coming rule
applies, there is no need to also apply the positional-risk test to determine causation. Cf.
Roberts, 436 Md. at 607 n.15.
34
“the mail he was picking up was that left for him at the site and the practice of gathering
the mail was one about which his supervisors were aware. As a result, the County
‘acquiesced’ in Mr. Roberts’s act of gathering the mail at Fire Station 19.” Id. at 606-07
(emphasis added). Based on this determination, the Court held that Mr. Roberts’s injury
arose out of and in the course of his employment:
Mr. Roberts, thus, was en route from a work-related activity to a site where
he was to engage in a work-related act, to which the employer acquiesced.
His travel, therefore, was incidental to his employment. Travel incidental to
employment cannot be excluded from coverage by application of the going
and coming rule. As a result, the injury he sustained is covered by the
Workers’ Compensation Act, because “but for” his travel between work-
related sites he would not have been injured.
Id. at 607-08 (emphasis added) (footnote omitted). The Court noted further that cases
exploring the exceptions to the going and coming rule were inapplicable because the going
and coming rule did not apply. Id. at 607 n.15.
To be sure, even if an employee sustains an injury during a compensable journey, a
deviation during such a trip could, depending on the circumstances, take an injury outside
the scope of employment. See Rumple v. Henry H. Meyer Co., 208 Md. 350, 358 (1955)
(“There is no exact method of determining the legal effect of a deviation. It depends upon
the circumstances; the nature of the work and the terms of the contract of employment
being most important.”).
C. Analysis
Applying all of the foregoing principles to the case before us, we cannot say that the
evidence permitted “but one conclusion” with regard to whether Mr. Frederick’s injury
occurred in the course of his employment. Millstone, 208 Md. App. at 80. Though this
35
inquiry can be a pure question of law in a case in which the parties stipulate that “there is
no dispute as to the inferences to be drawn from the facts,” Calvo, 459 Md. at 326, that was
not the case here. The parties dispute all the factual points discussed above.
Looking to the place component of the “in the course of” prong, material facts
remained in dispute in this case relating to all of the indicia for determining whether the
home qualified as a work site. Mr. Frederick testified that he routinely conducted work-
related tasks from his home in the mornings before leaving for his first account, including
the daily downloads on the Intermac and phone communications with his accounts and the
truck drivers on his daily route. He also testified, however, that one-on-one business
meetings with other Schwan employees were typically held in grocery store parking lots
and that larger meetings were held in a rented public library or hotel.
With regard to the work equipment in his home, Mr. Frederick admitted that Schwan
did not provide either the computer or the printer that he set up on his dining room table.
Besides the coupons and big display posters that Schwan mailed to Mr. Frederick’s home,
there was no evidence of any other work equipment in the home. The parties dispute
whether the discounted internet service that Schwan provided Mr. Frederick was
specifically to further his work-related activities at home.
The parties heavily dispute whether Mr. Frederick’s performance of work-related
activities at home was engendered by mere personal convenience or necessity. The record
establishes that Schwan did not provide any local offices from which he could work. Mr.
Frederick testified that, therefore, he had to conduct his daily downloads and send his
reimbursable mileage entries on the Intermac at his home because the device required WiFi
36
connection. However, he also testified on cross-examination that he could run the
downloads on his Intermac after he left his home so long as he could connect to WiFi.
Based on this testimony, Schwan argues that “it was really out of his personal convenience
that he used [the Intermac] at home in the morning.” From this evidence, the jury could
have concluded that Mr. Frederick’s use of the Intermac at home to conduct his daily
downloads was done for either personal convenience or necessity.
Significantly, the record does not establish whether or not Schwan acquiesced to
Mr. Frederick using his home as a work site, or reasonably should have known of such use.
For example, although Schwan did not provide any local office from which Mr. Frederick
could work, Black River Dairy Prods., 207 N.W.2d at 69, Mr. Frederick also admitted that
Schwan typically rented space for large work-related meetings and did not reimburse him
for mileage he incurred driving to his first accounts. Thus, at the motion for judgment
stage, the evidence did not establish, as a matter of law, that Mr. Frederick’s home met the
criteria of a home work site.
The facts also permitted alternative inferences regarding the time component of the
“in the course of” analysis. Schwan argued that Mr. Frederick was not at work until he
arrived at his first account and that it was Schwan’s understanding that the employment
relationship began at his first account—the point at which he was eligible to receive
reimbursement for his mileage. To the contrary, Mr. Frederick argued that his work day
had begun at his home because that was “his office,” and because he had already spoken
to his drivers and conducted his daily downloads prior to leaving for his first account.
Clearly, the question of whether Mr. Frederick had begun his work day before he left to
37
take his child to daycare was a question for the jury.
Finally, it was also for the jury to decide the activity component: whether Mr.
Frederick’s injury occurred “while fulfilling th[e] duties [of his employment] or engaged
in something incident thereto.” Wade, 345 Md. at 11. The trial court concluded that Mr.
Frederick’s injury occurred while “going to [his] customer’s location” from his home office
and that such a task was essential to his job.17 The factual disputes regarding the time and
space boundaries of Mr. Frederick’s employment, however, affect whether his walk to his
car (the activity) was incidental to his employment.
In a case in which an employee is injured leaving his or her home to go to work, the
law typically bars recovery under the going and coming rule, unless one of its exceptions
apply. Calvo, 459 Md. at 329 (citations omitted). Proctor, on which Schwan relies, applies
in cases in which the home is not a work site and the injury occurs while performing an
activity unrelated to employment and “before [a] journey [between the home and work]
has begun[.]” 228 Md. App. at 589, 591. In cases in which the home is deemed a work
site, an injury that occurs during travel between work-related sites, may be within the scope
of employment. Roberts, 436 Md. at 607. However, if, for example, an employee deviates
during the course of an otherwise work-related trip, then depending on the circumstances,
the deviation may take the injury outside the course of employment. Rumple, supra, 208
Md. at 358. Each analysis is dependent on resolution of the predicate facts informing place,
time, and activity, which, in this case, remain in dispute.
17
The court viewed the injury, in the alternative, as occurring during a commute
and, accordingly, found it compensable under the exceptions to the going and coming rule.
38
We hold that the trial court erred in concluding, as a matter of law, that Mr.
Frederick’s injury “occurred in the course of his employment.” See, e.g., Scherr v. Miller,
229 Md. 538, 544-45 (1962) (holding that the trial court properly denied the employer’s
motion for judgment because it was “possible for a jury to draw either of two incompatible
inferences from the conflicting evidence” with respect to the issue of causation); Harrison,
135 Md. at 877-78 (reversing the trial court’s grant of a motion for judgment because there
were disputed facts and inferences as to whether the injury arose out of and in the course
of employment).18
JUDGMENTS OF THE CIRCUIT COURT
FOR BALTIMORE COUNTY VACATED;
CASE REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH
THIS OPINION. APPELLEE TO PAY
COSTS.
18
Similarly, in light of the unresolved factual disputes relating to the “in the course
of” prong, we also cannot say, as a matter of law, that Mr. Frederick’s injury arose out of
his employment. As the Court of Appeals observed in Livering, “many of the facts relevant
to analyzing ‘arising out of’ and ‘in the course of’ overlap” in some cases. 374 Md. at 580.
That is also the case here. Unable to determine whether Mr. Frederick’s home was a work
place, whether his work day had commenced, and whether he was engaged in an activity
incidental to employment at the time of his injury, we are simply unable to apply the
positional-risk test to determine whether Mr. Frederick’s injury would not have occurred
but for the conditions and obligations of his employment. See id. at 575.
39