SCHWAN FOOD CO., ET AL.
Circuit Court for Baltimore County Case No. 03-C-16-005618
Reed, Salmon, James P. (Senior Judge, Specially Assigned),
be sure when you step, Step with care and great tact. And
remember that life's A Great Balancing Act."
Seuss "Oh, The Places You'll Go!"(1990)
innovation enables citizens of Maryland to work for companies
located anywhere in the world, at any time, from any place in
the State. 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." 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.
Ryan Frederick, worked as a customer service representative
for appellant, Schwan Food Company ("Schwan"),
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
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.
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 course of his
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.
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.
The Petitioner's Case
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 years and described his job duties as a customer
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 . . .
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.
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. 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.
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
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.
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."
Frederick's Typical Work day
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
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 the order of the deliveries. He would complete
these communications from his home before leaving to drive to
his first account.
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[.]
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.
Morning of the Accident
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
I had been in contact with my drivers. I ha[d] done some
e-mails. That's . . . about it that morning.
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
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.
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.
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.
Motion for Judgment
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 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.
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."
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.
trial judge also ruled, in the alternative,
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.
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