January 28, 2014
MONTGOMERY COUNTY, Maryland.
[Copyrighted Material Omitted]
Kenneth M. Berman (H. David Leibensperger, Berman, Sobin, Gross, Feldman & Darby, LLP, Gaithersburg, MD), on brief, for Petitioner.
Wendy Karpel, Associate County Attorney (Marc P. Hansen, County Attorney, Kathryn Lloyd, Associate County Attorney, Rockville, MD), on brief, for Respondent.
Argued before BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, McDONALD, and WATTS, JJ.
[436 Md. 594] The present case presents itself in the Workers' Compensation context, as Thaddus Roberts, Petitioner, a paid firefighter employed by Montgomery County, Respondent, filed a claim pursuant to the Maryland Workers' Compensation Act, alleging
[436 Md. 595] that he was injured in an accident that occurred when he was leaving the Washington Capital Beltway on his motorcycle, on his way from physical training at Friendly High School, located in Fort Washington, to Fire Station 19, in Silver Spring.
The operative facts are largely undisputed  and are derived from Mr. Roberts's affidavit filed in support of his Motion for Summary Judgment in the Circuit Court for Montgomery County, as well as his testimony before the Maryland Workers' Compensation Commission (" Commission" ). Mr. Roberts, at the time of his injury, was working in [436 Md. 596] a " light duty"  POSITION WITH THE Fire department, due To problems related to a prior compensable back injury and was assigned to Fire Department Headquarters, located in Rockville, as opposed to his " regular duty" station, which was Fire Station 19. While on light duty, Mr. Roberts worked four ten-hour shifts per week, starting at 7 a.m. and ending at 5 p.m. Mr. Roberts, as with other firefighters including those on light duty, were encouraged by the Fire Department to engage in two hours of physical training per shift, was paid during those two hours, and could physically train at any location of his choice.
While Mr. Roberts was on light duty, approximately once per month, he would " stop by" Fire Station 19 to pick up his " work mail,"  left for him at that location,
" which included things such as interoffice memos and letters from Montgomery County's Department of Human Resources," and was a practice observed by firefighters on light duty, about which Mr. Roberts's supervisors were aware. On the day of Mr. [436 Md. 597] Roberts's accident and resulting injury, he arrived at Friendly High School around 7 a.m. and trained until 8:30 a.m., at which time he left and traveled to gather the mail at Fire Station 19. En route, at approximately 9:15 a.m., Mr. Roberts was involved in the accident that is the genesis of the instant case.
[436 Md. 598] Montgomery County contested Mr. Roberts's claim at the Commission,  ALLEGING
that Mr. Roberts's injury did not arise out of or in the course of his employment, among other issues not before us. The Commission, after a hearing, disallowed [436 Md. 599] Mr. Roberts's claim in an order, which, in relevant part, provided:
The Commission finds on the first issue that the claimant did not sustain an accidental injury arising out of and in the course of employment as alleged to have occurred on October 28, 2010. Therefore, the remaining issues are not applicable, and the Commission will disallow the claim filed herein.
Mr. Roberts then filed a " Petition for Judicial Review," as well as a " Request for Jury Trial,"  in the Circuit Court for
Montgomery County and, thereafter, a Motion for Summary Judgment. The County responded and denied liability, as well as filed an Opposition to Claimant's Motion for Summary [436 Md. 600] Judgment and a Cross-Motion for Summary Judgment, in which it alleged that Mr. Roberts's injury did not arise out of and in the course of his employment, because he was " going and coming" to work at the time of his injury: " He was not traveling between two sections of the Employer's premises, nor was he injured in an employer-provided parking lot. He was simply on his way to work, driving his own motorcycle. None of the exceptions set forth in [ Board of County Commissioners for Frederick County v. Vache, 349 Md. 526, 709 A.2d 155 (1998)] apply, and his claim is barred by the going and coming rule." Mr. Roberts countered that his injury was compensable, because " but for" his " work-related duties of physical training and receiving his work mail, he would not have been travelling [sic] between Friendly High School and Station 19," and 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 [436 Md. 601] was " acquiesced to by Mr. Roberts's supervisors." The Circuit Court granted the County's Cross-Motion for Summary Judgment denying Mr. Roberts's claim, ruling orally and later in writing that Mr. Roberts was not entitled to workers' compensation, because the injury occurred while " he was coming and going" to work.
Mr. Roberts noted an appeal to the Court of Special Appeals, of which a panel, in an unreported opinion, affirmed the decision of the Circuit Court, over a dissent by Judge Albert Matricciani. The majority of the three-judge panel of the Court of Special Appeals agreed with the County and determined that Mr. Roberts was only
" at work" when he was at Headquarters, so that his injury was not compensable, because he was going to work at the time of his accident:
Although Roberts's schedule on October 28, 2010, consisted of four 10-hour shifts per week, beginning at 7 a.m. and ending at 5 p.m., and his pay for the day began at 7 a.m., he did not report to work at the Rockville headquarters because he " never made it." We deduce from this evidence that although Roberts was paid for ten hours per day, he was " at work" only when he was at the Rockville Headquarters.
The majority, moreover, reasoned:
Although Roberts and his co-workers check their mail periodically and their supervisors " were aware of the practice," neither party provided evidence to show that checking work-related mail was an official part of the employees' work duties rather than waiting until it was forwarded to their place of assignment. Thus, we presume that employees were permitted to check their mail on their own time and at their own risk.
In addition, in this case, Roberts was injured while on his way to Station 19 to pick up his office mail. There may have been a different outcome if Roberts had been injured while picking up his mail at Station 19.
Judge Matricciani, however, was " unpersuaded that Roberts was ‘ at work’ only when present at the Rockville Headquarters, [436 Md. 602] as the majority indicates.... His work day began at 7 a.m. and continued to 5 p.m.," and further opined:
Reasonable minds can differ as to whether appellant was " going" to work when he was injured. In my judgment, he would not have been injured " but for" his efforts to keep abreast of his work obligations and, thus, the " positional risk" test favors him under these circumstances. Montgomery Cnty. v. Wade, 345 Md. 1, 9-10 [690 A.2d 990] (1997) (" An injury is said to ‘ arise out of’ one's employment when it results from some obligation, condition, or incident of the employment." ); see also Livering v. Richardson's Rest., 374 Md. 566, 575 [823 A.2d 687] (2003) (" The positional-risk test is essentially a ‘ but for’ test" ).
We granted certiorari, Roberts v. Montgomery County, 431 Md. 444, 66 A.3d 47 (2013), to consider the following questions: 
1. A compensable workers' compensation injury is one that occurs in a place the employee would not have been " but for" his employment and while engaged in an activity incident to his employment. Mr. Roberts was involved in a car accident while he was already on duty, being paid, and traveling between his employer-encouraged physical training session and the firehouse where he worked. Did the majority in the Court of Special Appeals err in upholding the denial of workers' compensation to Mr. Roberts?
2. The " going and coming" rule bars workers' compensation benefits for injuries that occur while an employee is on his way to or from his job at the beginning or end of the day, or for a lunch period. Mr. Roberts was involved in a car accident while he was already on duty, being paid, and traveling between his employer-encouraged physical training session and the firehouse where he worked. Did the majority in the Court of Special Appeals err in holding that [436 Md. 603]
the " going and coming" rule bars Mr. Roberts' entitlement to workers' compensation benefits?
3. Did the majority in the Court of Special Appeals below err in upholding the denial of workers' compensation to Mr. Roberts, where its decision was premised on facts not contained in the record?
In considering these questions, we must determine whether, as a matter of law, Mr. Roberts sustained a " compensable injury."  We will hold he did and explain.
The Workers' Compensation Act, located at Sections 9-101 through 9-1201 of the Labor and Employment Article, was intended " ‘ to protect workers and their families from hardships inflicted by work-related injuries by providing workers with compensation for loss of earning capacity resulting from accidental injury arising out of and in the course of employment.’ " Johnson v. Mayor & City Council of Baltimore, 430 Md. 368, 377, 61 A.3d 33, 38 (2013), quoting Montgomery County v. Deibler, 423 Md. 54, 61, 31 A.3d 191, 195 (2011), quoting in turn Howard County Assoc. for Retarded Citizens, Inc. v. Walls, 288 Md. 526, 531, 418 A.2d 1210, 1214 (1980). The Act is remedial in nature and must be interpreted as such, " ‘ in order to effectuate its benevolent purposes.’ " Deibler, 423 Md. at 61, 31 A.3d at 195, quoting Design Kitchen & Baths v. Lagos, 388 Md. 718, 724, 882 A.2d 817, 821 (2005), quoting in turn Harris v. Board of Education of Howard County, 375 Md. 21, 57, 825 A.2d 365, 387 (2003); see Section 9-102(a) of the Labor and Employment Article (" This title shall be construed to carry out its general purpose." ).
Section 9-501(a) of the Labor and Employment Article, in pertinent part, provides that " 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" . Accidental personal [436 Md. 604] injury is defined in Section 9-101(b)(1) of the Labor and Employment Article as that which " arises out of and in the course of employment" .
" Arises out of" relates to the causal connection between the employment and the injury. Livering v. Richardson's Restaurant, 374 Md. 566, 574, 823 A.2d 687, 692 (2003). " In the course of" refers to the " time, place, and circumstances of the accident in relation to the employment." Montgomery County v. Wade, 345 Md. 1, 11, 690 A.2d 990, 995 (1997).
Under the " positional-risk" test, as adopted in
Mulready v. University Research Corp., 360 Md. 51, 66, 756 A.2d 575, 583 (2000) and refined in Livering, 374 Md. at 575, 823 A.2d at 692-93, the inquiry is 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:
The positional-risk test is essentially a " but for" test. Professor Larson succinctly states the test as follows: " An injury arises out of the employment if it would not have occurred but for the fact that the conditions and obligations of the employment placed [the employee] in the position where he [or she] was injured." A. Larson, Workers' Compensation Law § 3.05 (2002); see also J.D. Ingram, [436 Md. 605] The Meaning of " Arising Out of" Employment in Illinois Workers' Compensation Law, 29 J. Marshall L.Rev. 153, 158 (1995) (noting that under the positional-risk test " an injury is compensable if it would not have happened ‘ but for’ the fact that the conditions or obligations of the employment put the claimant in the position where he was injured" ).
Livering, 374 Md. at 575, 823 A.2d at 692 (alterations and emphasis in original).
The positional-risk test is adduced generally in the situation where an employee is injured while engaging in activities incidental to employment. See 2 Modern Workers Compensation § 114:10 (1993) (" If the injury does not have an inherent connection with the employment, the positional risk or but for test is applied to determine whether a sufficient nexus exists between the injury and the employment such that the injury is deemed to have arisen out of the employment." (footnote omitted)).
In Mulready, for example, we concluded that an allegation of injury to a traveling employee caused by a slip and fall in a hotel bathroom while attending a seminar in Canada, at the behest of her employer, arose out of her employment, because " but for" the travel required by her employer she would not have been injured. In Livering, the positional-risk test covered the situation in which an employee, enjoying a day off, visited the restaurant at which she was employed and was injured after checking her work schedule, because she " would not have been injured but for the fact that she visited the restaurant to confirm her schedule." Livering, 374 Md. at 580, 823 A.2d at 695.
In the present case, Mr. Roberts argues that " but for" his participation in employer-encouraged physical exercise at Friendly High School and gathering up his work mail at Fire Station 19, with the employer's acquiescence, he would not have been traveling between the two sites when he was injured. The County, however, disagrees and posits that the going and coming rule defeats compensability, because Mr. Roberts was not at his work site until he reached Headquarters, even though, it concedes that any injury sustained during [436 Md. 606] physical training at Friendly High School would have been covered by the Workers' Compensation Act, equating those premises to a work site.
The going and coming rule provides that injuries sustained by employees commuting to and from a fixed site of employment, " are generally not considered to arise out of and in the course of employment and are, therefore, not compensable under the Act." Morris v. Board of Education of Prince George's County, 339 Md. 374, 379, 663 A.2d 578, 582 (1995), citing Alitalia, 329 Md. at 44, 617 A.2d at 573-74; see Salomon v. State, 250 Md. 150, 154, 242 A.2d 126, 129 (1968) (claimant " was simply going to her place of employment" ); Tavel v. Bechtel Corp., 242 Md. 299, 301, 219 A.2d 43, 44 (1966) (claimant " injured on a public highway while driving in his own car from his home to his place of employment"
). The rule is premised on the idea that compensation in such situations is not warranted, because " ‘ getting to work is considered to be an employee's own responsibility and ordinarily does not involve advancing the employer's interests.’ " Board of County Commissioners for Frederick County v. Vache, 349 Md. 526, 531-32, 709 A.2d 155, 158 (1998), quoting Morris, 339 Md. at 380, 663 A.2d at 580, citing in turn Oaks v. Connors, 339 Md. 24, 660 A.2d 423 (1995).
The rub, then, is whether the positional risk test holds sway or the going and coming rule does. Although the County concedes that Mr. Roberts had been at Friendly High School for a work-related purpose, because he was engaging in physical training encouraged by the County, it asserts Fire Station 19 was not a work-related site; the work site it adopts, for the purposes of the going and coming rule, is Headquarters.
We disagree with the County's assertion that Fire Station 19 was not a work-related site to which Mr. Roberts was traveling, 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 [436 Md. 607] mail at Fire Station 19. See Livering, 374 Md. at 580, 823 A.2d at 695. Acquiescence, we have noted, is to " ‘ give an implied consent ... to any act, by one's mere silence, or without express assent or acknowledgment.’ " Osztreicher v. Juanteguy, 338 Md. 528, 534, 659 A.2d 1278, 1281 (1995), quoting Black's Law Dictionary 22 (5th ed. 1979).
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.
In our analysis, we find succor in opinions of our sister states, such as Jones v. Xtreme Pizza, 97 Ark.App. 206, 245 S.W.3d 670, 673-74 (2006) (" In the simplest terms, the going-and-coming rule does not preclude an award of benefits here because this is not a going-and-coming case.... Instead, Jones was where he was when the accident happened due to his employment-related activities." ) (citing Moncus v. Billingsley Logging & American Insurance Co., 366 Ark. 383, 235 S.W.3d 877 (2006)); Dade County School Board v. Polite, 495 So.2d 795, 797 (Fla.Ct.App.1986) (Physical education teacher's injuries deemed compensable when sustained while traveling from a school-sponsored track meet, which she was encouraged to attend, to her home school, because she " was not off-duty away from the employer's premises at the time of the accident but en route between premises to perform her final duty of the day." (internal quotation marks omitted)); Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503, 507 (Iowa 1981) [436 Md. 608] (" Caterpillar claims ... that compensation should be denied under the ‘ going and coming’ rule. Under the going and coming rule, compensation
is generally denied to an employee who is injured off the employer's premises while going to and from work.... The present situation is different. Shook was being paid by Caterpillar for his time en route to the negotiations. His travel was incidental to his duties. The time, place and activity were work-connected." ) (citing Frost v. S.S. Kresge Co., 299 N.W.2d 646, 648 (Iowa 1980)); Spurgeon v. Blue Diamond Coal Co., 469 S.W.2d 550, 553 (Ky.1971) (" Careful analysis of the various decisions in which the ‘ going and coming’ rule has been considered discloses that an employee's injuries sustained as the result of exposure to risks of the streets or highways are covered by the compensation act if the exposure to the hazards was the result of his work or if his employment was the reason for his presence at the place of danger." ); Denny's Restaurant v. Workmen's Compensation Appeal Board, 142 Pa.Cmwlth. 531, 597 A.2d 1241, 1244 (1991) (Employee injured en route between two restaurants owned by the same employer was entitled to workers' compensation, where he reported to one restaurant after being called in by the employer and was told upon arrival to report to another restaurant, although the court recognized that any injury that might have occurred if he reported directly from home to the second restaurant " would be covered by the going-and-coming rule and would not have been compensable." ); Toolin v. Aquidneck Island Medical Resource, 668 A.2d 639, 641 (R.I.1995) (" [W]e find a nexus between Toolin's injuries and her employment and therefore find that the going-and-coming rule does not operate to preclude compensation in the instant case." ).
Accordingly, we conclude that Mr. Roberts's injury arose out of and in the course of his employment and is covered by the Workers' Compensation Act.
JUDGMENT OF THE COURT OF SPECIAL APPEALS VACATED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO VACATE THE JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AND [436 Md. 609] REMAND THE CASE TO THE CIRCUIT COURT WITH INSTRUCTIONS TO VACATE THE DECISION OF THE WORKERS' COMPENSATION COMMISSION AND REMAND THE CASE TO THE COMMISSION FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY MONTGOMERY COUNTY.