Argued: February 5, 2018
Circuit Court for Montgomery County Case No.: 412413V
Barbra, C.J. Greene Adkins McDonald Watts Hotten Getty, JJ.
"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.
AND LEGAL PROCEEDINGS
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, " 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.
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." 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 . . . ."
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
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.
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.
granted certiorari to resolve the following
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?
answer is yes.
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).
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).
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).
§ 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)).
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.
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
§ 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).
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).
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
[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.
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.
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)).
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.
Out Of And In The Course Of Employment
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).
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).
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.).
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
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. See Tornillo, 329 Md. at 44.
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.
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.
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.
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.
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