DALLAS E. GRAVETTE
VISUAL AIDS ELECTRONICS, ET AL
Appeal from the Circuit Court for Prince George's County, Toni E. Clarke, Judge.
Argued by: Gerald F. Gay (Arnold, Sevel & Gay, PA on the brief) all of Towson, MD for Appellant
Argued by: Dane Ruttum (Law Office of Joseph M. Jagielski on the brief) all of Baltimore, MD for Appellee.
Panel: Wright, Matricciani,
Salmon, James P. (Retired, Specially Assigned), JJ.
This appeal concerns a workers' compensation claimant who, when injured, was a " traveling employee." The term " traveling [216 Md.App. 687] employee" as used in workers' compensation cases means an employee who is required to travel away from his employer's premises in order to perform his job. Venture-Newberg Perini Stone and Webster v. Illinois Workers' Compensation Commission, 981 N.E.2d 1091, 1095, 2012 IL App (4th) 110847WC, 367 Ill.Dec. 363 (Ill. App., Fourth Dist. 2012). The issue presented is whether the injury suffered by the traveling employee in this case arose out of and in the course of his employment.
The seminal case in Maryland involving the compensability of an injury suffered by a traveling employee is Mulready v. University Research, 360 Md. 51, 756 A.2d 575 (2000). Mulready involved a traveling employee who slipped and fell while taking a shower in a hotel room. Id. at 53. The Mulready Court concluded that the slip and fall injury arose out of the worker's employment and was compensable. Id. at 66. In reaching this conclusion, the Court announced the rule to be applied in traveling employee cases, viz:
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. Thus, even injuries suffered by traveling employees as a result of common perils of everyday life or as a result of purportedly personal acts generally are
compensable. Inasmuch as, under ordinary circumstances, a traveling employee's eating and bathing are reasonably incidental to the travel required by the employer, injuries resulting from these activities are compensable. Reverting to the terminology that we have used to describe the cases reviewed above, the rule which we adopt is substantially the positional-risk test, as opposed to the increased risk test.
Id. at 66.
Earlier in the Mulready opinion, 360 Md. at 59, the Court quoted with approval from Olinger Construction [216 Md.App. 688] Company v. Mosbey, 427 N.E.2d 910 (Ind. Ct. App., 1981) as follows:
The increased risk test requires that " the employee be exposed to a quantitatively greater degree of risk than the general public." Id. at 913. Under the positional-risk test, " an injury arises out of employment if it would not have occurred if the employee's job had not required him to be in the place where he was injured." Id.
This case sub judice has at least two important features also found in Mulready . The claimants in both cases were injured at a hotel where the worker was assigned by an employer to work on a temporary basis. Also, as in Mulready, here the claimant was off-duty when the accident occurred. But in this case, unlike Mulready, the employee slipped and fell on a dance floor located in the hotel, rather than in his assigned hotel room. The question to be decided boils down to whether engaging in a recreational activity like dancing while on premises where the employee is assigned to stay, is an activity [like eating in a hotel restaurant or taking a shower], " reasonably incidental to the travel required by the employer[.]" Mulready, 360 Md. at 66. The Maryland Workers' Compensation Commission (" the Commission" ) and the trial judge in this matter, answered that question in the negative. For the reasons set forth below, we hold a contrary view and shall reverse the judgment entered by the circuit court.
Dallas E. Gravette was injured on July 10, 2011 in Prince George's County. At the time of his injury he was an employee of one of the appellees in this case, Visual Aids Electronics (the " employer" ). Mr. Gravette filed a workers' compensation claim as a result of his fall, after which an evidentiary hearing was held before the Commission. The [216 Md.App. 689] Commission filed an order denying the claim on the grounds that Mr. Gravette " did not sustain an accidental injury arising out of and in the course of employment as alleged to have occurred on July 10, 2011." Mr. Gravette filed a petition for judicial review of the Commission's decision in the Circuit Court for Prince George's County. Gravette's case was heard, non-jury, on January 31, 2013. The parties stipulated to all the facts that were relevant to the sole issue before the circuit court, which was, " Did the July 10, 2011 accident arise out of and in the course of Gravette's employment?" Set forth below in part II is a summary of the undisputed facts.
Visual Aid Electronics (" employer" ) is in the business of providing " audio visual equipment, including computer equipment, and technical staff to set up and service
the equipment in . . . hotels and convention centers." Prior to the accident, the employer contracted to provide its services to a customer at the Gaylord National Resort and Convention Center (hereafter " the Gaylord Center" ) located in Prince George's County.
Mr. Gravette, at all times here pertinent, was a resident of Idaho. To fulfill its contract to provide equipment and services at the Gaylord Center, the employer made arrangements for Mr. Gravette to stay at the Gaylord Hotel, which is part of the Gaylord Center. Gravette's employer paid for Gravette's travel expenses from Idaho to Maryland and for the price of his hotel room.
Mr. Gravette was assigned to work at the hotel on behalf of his employer, and to stay there between July 7 and July 16, 2011. On July 10, 2011, the date of his injury, Gravette worked at the hotel between 7:00 a.m. and 3:00 p.m. as an audio visual technician for his employer. The accident occurred at the Pose Ultra Lounge & Nightclub (hereafter " the Nightclub" ), which is a facility located in the Gaylord Hotel. Gravette was injured at about midnight on July 10, 2011.
[216 Md.App. 690] Entry into the Nightclub is restricted to persons registered at the Gaylord Hotel and their guests. Gravette, while off-duty, was dancing when he slipped on some liquid on the dance floor and fell, injuring his pelvis. There was no indication that Gravette was intoxicated at the time he was injured.
Gravette was not in the Nightclub at the request or direction of his employer nor was he engaged in any " specific activity that was for the benefit" of his employer.
The trial judge concluded, in a written opinion, that Gravette's injuries were not compensable. The trial judge explained:
After review of Mulready and the cases cited therein, this Court concludes that [Gravette] is not entitled to workers' compensation benefits. Mulready determined that injuries " incidental to the travel requested by employer" such as eating and bathing are compensable. Mulready, supra at 66. Further, " a distinct departure by the employee on a personal errand that would not be in the contemplation of the parties" is not compensable. Id. at 66. These distinctions are made on a case by case basis.
This Court concludes, based on the facts of this case, that [Gravette's] act of going to the Nightclub and dancing was not " reasonably incidental to the travel required by the employer." Id. at 66, 756 A.2d at 582. The activity in this case is distinguishable from examples of eating and bathing as necessary activities incidental to travel, as delineated by the Court of Appeals, which would be " in the contemplation of the parties" when an employee goes on a business trip. This Court concludes, however, that dancing at a nightclub with individuals who are not clients of [the employer] is not incidental and would not be in contemplation of the parties. This is a purely personal errand by [Gravette] and not something that would be anticipated by [the employer]. This falls outside the spectrum of necessary activities that [216 Md.App. 691] are incidental to travel. Therefore, [Gravette] did not sustain an injury arising out of and in the course of his employment and is not entitled to workers' compensation benefits.
A. Standard of Review
Our review of workers' compensation proceedings is governed by Md. Code, Labor & Employment Article (2008 Repl. Vol.) § 9-745,
which provides, in relevant part, as follows:
(b) Presumption and burden of proof. - In each court proceeding under this title:
(1) the decision of the Commission is presumed to be prima facie correct; and
(2) the party challenging the decision has the burden of proof.
(c) Determination by court. - The court shall determine whether the Commission:
(1) justly considered all of the facts about the accidental personal injury, occupational disease, or compensable hernia;
(2) exceeded the powers granted to it under this title;
. . .
(e) Disposition . - (1) If the court determines that the Commission acted within its powers and correctly construed the law and facts, the court shall ...