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Calvo v. Maryland County

Court of Appeals of Maryland

May 21, 2018

RINA CALVO
v.
MONTGOMERY COUNTY, MARYLAND

          Argued: February 5, 2018

          Circuit Court for Montgomery County Case No.: 412413V

          Barbra, C.J. Greene Adkins McDonald Watts Hotten Getty, JJ.

         OPINION

          Adkins, J.

          "Each case involving the going and coming rule and its exceptions must turn on its own particular facts." Alitalia Linee Aeree Italiane v. Tornillo, 329 Md. 40, 46 (1993). Rina Calvo was injured in a car accident while driving from her home to a mandatory work training on a Saturday-normally her day off. We consider whether the Circuit Court for Montgomery County should have granted summary judgment in judicial review proceedings of an order of the Workers' Compensation Commission ("Commission"). In so doing, we shed light on a complicated and factually-intensive exception to the going and coming rule: the special mission or errand doctrine.

         FACTS AND LEGAL PROCEEDINGS

         Calvo has been employed by Montgomery County ("County") as a bus driver for approximately 20 years. Her regular work schedule is Monday through Friday, and she is based at the Silver Spring Depot. On May 6, 2015, Calvo received a letter notifying her that she was scheduled to attend an "important mandatory training" set for Saturday, May 16, 2015, at the Gaithersburg Depot. The notice stated that Calvo was not required to be in uniform to attend the "customer service class, "[1] and that the training was set to run from 8:00 a.m. to 4:30 p.m. The County required all employees to attend this training annually. En route to the training, Calvo was rear-ended by another car while waiting at a traffic light.

          Calvo filed a claim with the Commission, seeking compensation for injuries sustained in the rear-end collision. At the Commission hearing on October 30, 2015, Calvo testified about her injury, as well as the mandatory nature of the training. She believed that if she missed the training she would probably get suspended or be prevented from going back to work "full duty."[2] Before the Commission, the parties argued the applicability of the special mission exception. The Commission awarded compensation after finding that Calvo "sustained an accidental injury arising out of and in the course of employment . . . ."

         The County sought judicial review of the Commission's Order in the Circuit Court for Montgomery County, and requested a jury trial. Shortly thereafter, the County filed a motion for summary judgment on grounds that the "going and coming rule" prohibited recovery-because accidental injuries sustained while going to or coming from work do not ordinarily arise out of and in the course of employment, and none of the exceptions to the rule applied. Calvo opposed the Motion, maintaining that compensation was proper under the special mission exception, or because she was a traveling employee. After a hearing, the Court granted the County's motion.

         The Court concluded that as a matter of law, Calvo's accident fell within the going and coming rule, and that Calvo was not a traveling employee. The Court considered that Calvo was not compensated for her travel, it was an "annual, regular training" that was "part and parcel of her job, " and it was not "out of the ordinary." It found that the training was "bus driver stuff, " which involved "go[ing] over the rules of the road, " and that the change in location, work on a day off, and the difference in distance did not bring Calvo's case within the special mission exception.

         In an unreported opinion, the Court of Special Appeals affirmed the Circuit Court's grant of summary judgment Calvo v. Montgomery Cty., No. 1036, 2017 WL 2666161, at *8 (Md. Ct. Spec. App. June 21, 2017). The intermediate appellate court agreed that there was no dispute of material fact and concluded that the going and coming rule controlled. Id. at *4, 6.

         We granted certiorari to resolve the following question:[3]

Did the Circuit Court err in concluding as a matter of law that Calvo's injury did not arise out of and in the course of her employment, and granting summary judgment?

         Our answer is yes.

         STANDARD OF REVIEW

         Maryland Rule 2-501(a) permits a party to seek summary judgment at any time "on the ground that there is no genuine dispute as to any material fact and that the party is entitled to judgment as a matter of law." In reviewing a summary judgment motion, a court should not attempt to resolve factual issues, but only determine if there is a dispute of material fact sufficient to try the case. Baltimore Cty. v. Kelly, 391 Md. 64, 73 (2006). Even if "the relevant facts are undisputed, 'if those facts are susceptible to inferences supporting the position of the party opposing summary judgment, then a grant of summary judgment is improper.'" Ashton v. Brown, 339 Md. 70, 79-80 (1995) (quoting Clea v. Mayor & City Council of Baltimore, 312 Md. 662, 677 (1988)). We review a grant of summary judgment without deference, and construe the facts, and any reasonable inferences that may be drawn from them, in the light most favorable to the non-moving party. Rockwood Cas. Co. v. Uninsured Emp'rs' Fund, 385 Md. 99, 106 (2005).

          DISCUSSION

         The Workers' Compensation Act ("Act") is intended to protect workers 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. See Howard Cty. Ass'n for Retarded Citizens, Inc. v. Walls, 288 Md. 526, 531 (1980). The Act "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." Tornillo, 329 Md. at 48; Roberts v. Montgomery Cty., 436 Md. 591, 603 (2014).

         Maryland Code (1991, 2016 Repl. Vol.), § 9-501 of the Labor and Employment Article ("LE") 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 . . . ." An "accidental personal injury" is an "accidental injury that arises out of and in the course of employment[.]" LE § 9-101(b).

         LE § 9-737 permits a party to seek judicial review of Commission orders in circuit court. A party may request review on the record before the Commission, which we have described as similar to "judicial review of the final action of most state administrative agencies . . . ." Kelly, 391 Md. at 67. Alternatively, a party may select a "new evidentiary hearing and decision before a jury . . . ." Id. at 67-68; LE § 9-745(d). The latter is what the County requested, and so our review is "much like" that due a motion for summary judgment following "an original civil complaint brought in a circuit court." Id.

          Regardless of the method of appeal, the Commission's decision is "presumed to be prima facie correct[, ]" and "the party challenging the decision has the burden of proof." LE § 9-745(b). To prevail in judicial review, the appellant must overcome the statutory presumption. Kelly, 391 Md. at 76; LE § 9-745(b)(1). After the Commission issues an award to a claimant, "the burden of proof, which was borne by the claimant before the Commission, switches to the employer before the circuit court." Kelly, 391 Md. at 75-76. A successful claimant has no burden of production in judicial review-the Commission's decision may serve as the claimant's prima facie case. Id. at 76 (citing General Motors Corp. v. Bark, 79 Md.App. 68, 80 (1989)).

         The parties raise perennial questions about the fact/law dichotomy inherent in review of summary judgments. Calvo contends that whether an accident arose out of and in the course of employment, the special mission exception, and her status as a traveling employee are questions of fact. Calvo maintains that summary judgment was improper because the County did not offer additional evidence in its motion for summary judgment, and the Commission's factual determinations are presumed correct. She relies on Kelly, 391 Md. at 80, for the proposition that a circuit court may not enter summary judgment against a claimant who prevailed before the Commission.

         The County argues that summary judgment was proper because there is no material dispute of fact, the going and coming rule bars compensation as a matter of law, and the facts do not permit any other inferences. The County does not disagree that the Commission's decision is presumed prima facie correct but maintains that the presumption only applies if the issue on appeal is a question of fact, not of law. The County agrees that an agency's interpretation of a statute it administers receives deference but observes that a court may always consider whether the agency made an error of law.

         LE § 9-745(b)(1) provides that the Commission's decisions are presumed correct, but the presumption "does not extend to questions of law." Wal Mart Stores, Inc. v. Holmes, 416 Md. 346, 357 (2010); Beyer v. Decker, 159 Md. 289, 291 (1930). Although the Commission is entitled to deference in its interpretation of the statute it administers, we may still consider whether its legal conclusions were erroneous. Holmes, 416 Md. at 359; W.M. Schlosser Co. v. Uninsured Emp'rs' Fund, 414 Md. 195, 204 (2010).

         The question of whether evidence before the Commission is legally sufficient to support its decision is a question of law. Moore v. Clarke, 171 Md. 39, 45 (1936). When the Commission's decision involves "consideration of conflicting evidence as to essential facts, or the deduction of permissible but diverse inferences therefrom, its solution of such conflict is presumed to be correct . . . ." Id. If the undisputed facts do not permit a conclusion, or any permissible inferences consistent with the Commission's award, the case will be resolved solely as a question of law. Id. at 46; see also Hygeia Ice & Coal Co. v. Schaeffer, 152 Md. 231, 235 (1927).

         Cases involving the going and coming rule and its exceptions hinge on the specific facts of each case. Tornillo, 329 Md. at 46; see also Reisinger-Siehler Co. v. Perry, 165 Md. 191, 198 (1933) ("The question, therefore, whether a case is an exception to the general rule, depends upon its own particular facts."). But, as we explained in Harrison v. Cent. Constr. Corp., 135 Md. 170, 180 (1919):

[t]he question as to whether an injury arose out of or in the course of employment is ordinarily, like negligence or 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.

         Contrary to Calvo's arguments, Kelly does not establish that summary judgment is never permissible against a prevailing claimant during judicial review of a Commission decision. See 391 Md. at 77-78. In Kelly, the employer sought judicial review of a Commission Order that awarded compensation after finding that a car accident at work aggravated an employee's old injury. Id. at 69-70. In circuit court, the employer moved for summary judgment, arguing that the case presented a complex medical question and the employee failed to provide sufficient medical evidence connecting his need for treatment with the car accident. Id. at 72. The employee maintained that a factual dispute over causation existed and opposed summary judgment on the basis of the Commission record and the presumption of correctness. The Circuit Court granted summary judgment. Id. at 72-73.

         We determined that summary judgment was improper. The prevailing employee was entitled to rely on the Commission's determination of causation, and the employer was required to produce evidence establishing the lack of causation because, as the losing party, it bore the burdens of proof and production at summary judgment. Id. at 77. We held that there was sufficient evidence before the Commission to support the conclusion that the car accident aggravated the employee's old injury. Id. at 80. We explained that "'[t]he general rule in Workmen's Compensation cases is that where there is any evidence from which a rational conclusion may be drawn, as opposed to the theory of prayer for a directed verdict, the trial court must leave to the jury all considerations as to the weight and value of such evidence.'" Id. (quoting Jewel Tea Co. v. Blamble, 227 Md. 1, 4 (1961) (emphasis in original)).

         Kelly teaches us that summary judgment is improper against a prevailing party when the moving party does not carry its burden, or if there is any evidence that can rationally permit the Commission's factual determination. Id. With these principles in mind, we turn to the question of whether the Circuit Court improperly granted summary judgment for the County.

         Arises Out Of And In The Course Of Employment

         A claimant who seeks compensation must prove that the injury "both arose out of and in the course of the employment." Montgomery Cty. v. Wade, 345 Md. 1, 9 (1997) (emphasis in original). "'Arises out of' refers to the causal connection between the employment and injury." Livering v. Richardson's Rest., 374 Md. 566, 574 (2003). We have adopted the positional risk test to determine if an injury arose out of employment. Id. at 575. Under this test, "'[a]n 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.'" Id. (quoting A. Larson, Workers' Compensation Law § 3.05 (2002)) (emphasis in original).

         In analyzing whether the injury occurred "in the course of employment" we consider "the time, place, and circumstances of the accident in relation to the employment." Id. at 576-77. "An injury is in the course of employment 'when it occurs during the period of employment where the employee reasonably may be in performance of his or her duties and while fulfilling those duties or engaged in something incident thereto.'" Id. at 577 (quoting Wade, 345 Md. at 11).

         To determine whether Calvo's injury arose out of her employment, we consider whether Calvo would have been injured but for her employer's requirement that she attend the Saturday training. Id. The Circuit Court found that Calvo's injury did not arise out of her employment. The Court of Special Appeals applied the positional risk test, observing that the parties do not dispute that the travel was "sufficiently work-related" and that but for Calvo's obligation to attend the training, she would not have been traveling the route. Calvo, 2016 WL 2666161, at *6. The parties do not dispute that Calvo ordinarily did not work on Saturdays, and that the training was mandatory. But for the County's requirement that she attend, Calvo would not have been driving when and where she was injured. Therefore, under the positional risk test, Calvo satisfies the "arises out of" requirement. Livering, 374 Md. at 575; see also 1 Clifford B. Sobin, Maryland Workers' Compensation § 6:1, at 158 (2017 ed.).

         Whether Calvo's injury occurred in the course of her employment depends on the time, place, and circumstances of her injury relative to her employment. Livering, 374 Md. at 576-77. To fall within the Act, her injury must have occurred during her employment when she was in the performance of her duties or doing something incident to those duties. Id. at 577; Wade, 345 Md. at 11. The parties do not dispute that Calvo was traveling from her home to the Gaithersburg Bus Depot for training when she was injured. Rather, they dispute the legal character of this journey.

          The County contends that the going and coming rule controls. Under this rule, employees' injuries sustained while going to or coming from work are not ordinarily in the course of employment. Roberts, 436 Md. at 606; Tornillo, 329 Md. at 44. Such injuries are not usually compensable because employees are responsible for ensuring their presence at work, and during the commute, they generally face the same hazards as other commuters. Roberts, 436 Md. at 606. Thus, the risks are not usually "directly attributable to a person's particular employment." Morris v. Bd. of Educ. of Prince George's Cty., 339 Md. 374, 380 (1995). Applying this rule, the County reasons that Calvo should not receive compensation because she was traveling to work. We have, however, recognized several exceptions to the going and coming rule.[4] See Tornillo, 329 Md. at 44.

          Calvo offers two reasons for why the Circuit Court should not have granted summary judgment. First, she argues that the special mission or errand exception to the going and coming rule applies, and therefore her injury arose out of and in the course of her employment. She also contends that she was a traveling employee. Because applying the traveling employee rule would bar the applicability of the going and coming rule, we address this argument first.[5]

         The Traveling Employee

         Calvo argues that whether she was a traveling employee is a material question of fact. She contends that the Circuit Court erred in determining that the nature of her journey did not make her travel incidental to her employment. Calvo maintains that if she was indeed a traveling employee, then the going and coming rule would not apply at all, and the positional risk test applies to determine whether her injury occurred in the course of her employment. The County contends that the going and coming rule applies, and that Calvo was not a traveling employee because she was on her way to work, rather than staying at a different site for work, traveling between work sites, or on her employer's premises.

         A traveling employee is "an employee who is required to travel away from . . . [an] employer's premises in order to perform his [or her] job." Gravette v. Visual Aids Elecs., 216 Md.App. 686, 686-87 (2014). The seminal traveling employee case in Maryland is Mulready v. Univ. Research Corp., 360 Md. 51 (2000). There, an employee for an American company was on a business trip in Canada when she slipped and fell in her hotel shower. Id. at 53-54. The parties agreed that Mulready was acting in the course of her employment at the time of her injury. We considered whether Mulready's injuries arose out of her employment. Id. at 54-55. We adopted the positional risk test and reasoned that Mulready should receive compensation because her injury arose from an activity that was "reasonably incidental" to travel required by her employer. Id. at 66. We explained:

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 acts are compensable.

Id.

         Although Calvo argues that her status as a traveling employee is a factual question, we fail to see any support for that theory. The traveling employee rule applies to situations in which "the employee suffered the injury on premises, distant from the employee's home where the employee was staying in order to carry out the employer's business." Id. at 61-62 (emphasis added); see also Gravette, 216 Md.App. at 692-93. The requirement that Calvo report from her home to a different, but not very distant, work location does not transform her into a traveling employee. Her injury did not occur on the premises of a different location where her employer required her to stay to perform work functions. Calvo simply does not qualify as a traveling employee under applicable legal standards.

          Calvo argues that two of our other cases, Livering v. Richardson's Rest., 374 Md. 566 (2003), and Roberts v. Montgomery Cty., 436 Md. 591 (2014), provide a basis to conclude that her injury occurred in the course of her employment because travel to the training was incident to her employment. In Livering, 374 Md. at 580-81, we held that an employee's injury arose out of and in the course of her employment when-while on her day off-she was injured at the restaurant where she worked while checking her schedule. In that instance, Livering's visit to restaurant on her day off was an effort to accommodate her employer's practice of frequently changing the work schedule. Livering had no phone, so she confirmed her schedule by either visiting the restaurant or calling in from elsewhere. Id. We applied the positional risk test to determine that Livering's injury arose out of her employment. Id. at 575-76. Relying on cases "involving off-duty or post-termination injuries sustained ...


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