- March 23, 2017
- Posted by: admin
- Category: Workers Compensation
Maryland Workers Compensation Accidental Injury Analysis
Claims are either accidental injuries or occupational diseases or none of the above.
Our initial analysis in support of the Worker’s Compensation Commission decision requires us to first define the term accidental personal injury. Accidental personal injury is defined as “an accidental injury that arises out of and in the course of employment.” Md. LABOR AND EMPLOYMENT Code Ann. § 9-101(b) (1).
Based upon the above definition, there are three elements to an accident personal injury: 1) accidental injury 2) arises out of the employment, and 3) in the course of the employment. Harris v. Board of Education of Howard County, 375 Md. 21, 825 A.2d 365 (2003)
With regard to the first element, accidental injury, for years, the Court of Appeals required an unusual activity in order to be a compensable claim. Slacum v. Jolley, 153 Md. 343, 138 A. 244 (1927). This particular element was eliminated in the case of Harris v. Board of Education of Howard County. Under the plain language of the statute, what must be accidental is the injury and not the activity giving rise to the injury. . The Court of Appeals stated in the Harris opinion: “consequently what must be unexpected, unintended, or unusual is the resulting injury and not the activity of which the injury arises”.
In addition to the requirement of an accidental injury there are two other elements in order to sustain an accident personal injury and those elements include, arising out of the employment and the second element is in the course of the employment. Nevertheless, as Professor Clifford Davis observed, “where an injury clearly ‘arises’ from the employment, the ‘in the course’ requirement may be relaxed, and where the injured employee is squarely ‘in the course’ of employment, the arising requirement may be relaxed.” Clifford Davis, Workmen’s Compensation in Connecticut – The Necessary Work Connection, 7 Conn. L. Rev. 199, 201 (1974) (citing Malone, Some Recent Developments in the Substantive Law of Workmen’s Compensation, 16 Vand. L. Rev. 1039, 1050 (1963)). See also King Waterproofing Co. v. Slovsky, 71 Md. App. 247, 252 n.4, 524 A.2d 1245 (1987) (citing 1A A. Larson, Workmen’s Compensation Law § 29.00 (1985)). Similarly, in deciding whether an injury is compensable, we apply a rule of inverse relationships. The stronger the facts are to show that an injury “arose out of employment,” the more relaxed the requirement that the injury be shown to be “in the course of employment” and vice versa. Montgomery County v. Smith, 144 Md. App. 548, 555 (Md. Ct. Spec. App. 2002)
The Court Of Appeals has defined the “arising out of” element of accidental injury as follows. “Arises out of” refers to the causal connection between the employment and the injury. An injury arises out of employment when it results from some obligation, condition, or incident of employment. Montgomery County v. Wade, 345 Md. 1, 9-10, 690 A.2d 990, 994 (1996). The phrase “‘arises out of’ requires, not that the performance of an employment-related task be the direct or physical cause of the injury, but, more broadly, that the injury be incidental to the employment, such that it was by reason of the employment that the employee was exposed to the risk resulting in the injury.” Mulready v. University Research Corp., 360 Md. 51, 57, 756 A.2d 575, 578 (2000). Livering v. Richardson’s Restaurant, 374 Md. 566, 823 A 2d 687 (2003).
In Livering: “Judge Rodowsky, writing for the Court in Mulready, examined the different tests sometimes employed in determining ‘arising out of’ causation. He noted two tests — one known as the increased risk test and the other known as the positional-risk test. Id. at 59, 756 A.2d at 579. Explaining the difference between the two tests, he stated:
‘The increased risk test requires that ‘the employee be exposed to a quantitatively greater degree of risk than the general public.’ 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., 756 A.2d at 579. The positional-risk test is a more liberal test than the increased risk test. See id. at 59, 756 A.2d at 579; Montgomery County v. Smith, 144 Md.App. 548, 557, 799 A.2d 406, 412 (2002). 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, 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’).
Maryland has adopted the positional-risk test to determine whether an accidental injury arose out of employment. See Mulready, 360 Md. at 66, 756 A.2d at 583; Wade, 345 Md. at 11, 690 A.2d at 994; Knoche, 282 Md. at 455-57, 385 A.2d at 1183-84. In Mulready, in the context of a traveling employee, we noted that ‘[u]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.’’ 360 Md. at 59, 756 A.2d at 579. In that case, a traveling employee sustained an injury after slipping in a hotel bathtub. Id. at 53-54, 756 A.2d at 576. Mulready was staying in the hotel to conduct employer business but was not actively engaged in work at the time of her injury. The parties agreed that her injury occurred in the course of her employment but disputed whether it arose out of that employment. We reasoned that her personal act of bathing was reasonably incidental to the travel required by her employer. Id. at 66, 756 A.2d at 583. In effect, but for her travel, Mulready would not have been injured. We held that her injury, resulting from an incident of her employment, arose out of employment.
The positional-risk test also encompasses injuries that occur during activities incidental to employment that are not required specifically by the employment. In Wade, we applied the positional-risk test and held that a police officer’s accidental injury, suffered while participating in a voluntary police department program, arose out of employment. See 345 Md. at 9-11, 690 A.2d at 994. Officer Wade, while not on scheduled duty and while operating her personal patrol vehicle (PPV), was hit from behind by another vehicle and injured. Wade was on her way to her mother’s home. Her employer, the Montgomery County Police Department, operated a program permitting, but not requiring, employees to utilize patrol vehicles for personal use, subject to certain conditions. We held that Wade’s injury arose out of her employment because Wade ‘would not have been operating a PPV but for her employment and consequent participation in the program.’ Id. at 11, 690 A.2d at 994. We found the requisite causal link between her work and her injury in that her injuries stemmed from use of her police vehicle within departmental guidelines. Id., 690 A.2d at 994.”
Livering at 575-576.
“In Knoche, the employee was “killed when the dentist for whom she worked accidentally fired a gun that he had been showing to a patient… The bullet struck the hygienist as she was cleaning up dental powder.” The court in Mulready concluded that Knoche stands for the proposition “that the term ‘arises out of’ requires, not that the performance related task be the direct or physical cause of the injury, but more broadly that the injury be incidental to the employment, such that it was by reason of the employment that the employee was exposed to the risk resulting in the injury.” Mulready at 578.
The case of Montgomery County v. Smith, 144 Md. App. 548, 799 A.2d 406 (2002), cert. denied, 371 Md. 264, 808 A.2d 808 (2002), , provides a good example of a situation that does not fit the definition of “arises out of”.
County corrections guard who was injured in an after-hours basketball game in the facility’s gymnasium failed to satisfy either the arising out of or the in course of employment requirements for compensability; he was not required to be in that place at that time, and the exercise, while beneficial, was insufficiently tied to his employment as a guard. Montgomery County v. Smith, 144 Md. App. 548, 799 A.2d 406 (2002), cert. denied, 371 Md. 264, 808 A.2d 808 (2002). Gymnasium use by off-duty employees is neither [**409] encouraged [***2] nor discouraged by the County.
The last element of an accidental injury is arises “in the course of” employment. When an injury occurs during the period of employment at a place where the employee reasonably may be in the performance of his or her duties and while he or she is carrying out those duties for something incident thereto then it arises “in the course of” employment. Hampton Construction Company v. Beccio, 92 Md.App 452, 608 A.2d, 1264 (1992). The words “in the course of” refer to the time, place and circumstances under which an injury occurred. Miller v.Coles, 232 Md.522, 194 A.2d, 614 (1963).
The case of Montgomery County v. Smith, 144 Md. App. 548, 799 A.2d 406 (2002), cert. denied, 371 Md. 264, 808 A.2d 808 (2002), while finding that the accident neither arose out of or in the course of employment, provides a good summary of the law on the definition of “in the course of employment”.
“An accidental injury arises “in the course of employment” when it occurs: (1) within the period of employment, (2) at a place where the employee reasonably may be in the performance of his duties, and (3) while he is fulfilling those duties or engaged in doing something incident thereto. Knoche, 282 Md. at 454. Pertinent inquiries include: When did the period of employment begin? When did it end? When [***14] was its continuity broken? How far did the employee, during the period of employment, place himself outside the employment? Montgomery County v. Wade, 345 Md. 1, 11, 690 A.2d 990 (1997); Proctor-Silex Corp. v. DeBrick, 253 Md. 477, 480, 252 A.2d 800 (1969). Thus, “in the course of employment” refers to the “place, time and circumstances under which the accident resulting in the injury or death occurs.” Knoche, 282 Md. at 455. [**413]
Larson synthesized the “in the course of” cases concerning recreational or social activities by saying that such accidents are within the course of employment when:
(1) They occur on the premises during a lunch or recreation period as a regular incident of the employment; or
(2) The employer, by expressly or impliedly requiring participation, or by making the activity part of the services of an employee, brings the activity within the orbit of the employment; or
(3) The employer derives substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life… Arthur Larson, Workers’ Compensation Law § 22.01 (2001).
Larson’s synthesis, hereafter referred to as the “Larson Rule,” has been quoted previously with approval by the Court [*559] of Appeals and by this Court. See Sica v. Retail Credit Co., 245 Md. 606, 613, 227 A.2d 33 (1967); Turner v. State Office of the Public Defender, 61 Md. App. 393, 403, 486 A.2d 804 (1985). The Rule consists of three independent parts. In Larson’s words, if at least one is found, “the absence of the others is not fatal.” 4 Arthur Larson at § 22.03(1)..
In the area of company picnics and parties, when the degree of employer involvement descends to mere sponsorship or encouragement, Larson states that “the questions [of compensability] become closer, and it becomes necessary to consult a series of tests bearing on work-connection.” Id. at 22.04. Among the questions to be asked are: Did the employer in fact sponsor the event? To what extent was attendance really voluntary? Was there some degree of encouragement to attend in such [***16] factors as taking a record of attendance, paying for the time spent, requiring the employee to work if he did not attend, or maintaining a known custom of attending? Did the employer finance the occasion to a substantial extent? Did the employees regard it as an employment benefit to which they were entitled as of right? Did the employer benefit from the event, not merely in a vague way through better morale and good will,[*560] but through such tangible advantages as having an opportunity to make speeches and awards?
Maryland Off-Premises Recreational accidental injury Cases – Company Picnics and Company Parties
In Sica, 245 Md. 606, at 606, 227 [**414] A.2d 33, an employee (Sica) was seriously injured when he dove into shallow water at his employer’s annual picnic. Id.at 611.The picnic, as well as the employees’ Christmas party, were touted in Sica’s pre-employment interview as fringe benefits of his employment. Id. at 609. The picnic was organized by a committee of employees with the authorization of the employer’s managers. Id. The cost of the picnic was paid for by the employer, and employees were urged by the employer [***17] to attend, although attendance was not compulsory. Id.at 610. On the date Sica was injured, the picnic was held about thirty miles from where Sica usually worked. Id. In Sica, the trial court ruled that Sica’s accidental injury did not arise out of or in the course of his employment. Id. at 611. The Court of Appeals reversed, id. at 621, holding that the third factor in the Larson Rule had been proven, i.e., that the “employer derived substantial direct benefit from the [picnic] activity beyond the intangible value of improvement in employee health and morale common to all kinds of recreation and social life.” Id. at 618. Thus, Sica was entitled to compensation for his injury. Sica quotes with approval language used in Moore’s Case, 330 Mass. 1, 110 N.E.2d 764 (Mass. 1953). Sica, 245 Md. 606, at 614, 227 A.2d 33. The five Moore HN16factors are: “(1) The customary nature of the activity, (2) The employer’s encouragement or subsidization of the activity, . . . (3) The extent to which the employer managed or directed the recreational enterprise, . . . (4) The presence of substantial pressure or actual compulsion upon the employee to attend and participate, . . . (5) The fact that the employer expects or receives a benefit from the employee’s participation in the activity, whether by way of improved employer-employee relationships . . . through greater efficiency in the performance of the employee’s duties . . . .”
In Coats & Clark’s Sales Corp. v. Stewart, 39 Md. App. 10, 383 A.2d 67 (1978), we considered whether an employee’s (Stewart’s) injuries, sustained on a trip to the grocery store to purchase food for a baby sitter “arose out of and in the course of his employment.” Id. at 14. The babysitter was needed so that Stewart and his wife could attend a dinner party to honor two employees with whom Stewart worked. Id. at 11. Stewart was to present a gift to one of the honored employees at the dinner party. Id. The party, scheduled to begin at 6:00 p.m., was to be held at a co-employee’s home, and was paid for by the employer. Id. At 5:00 p.m., while driving an automobile provided by his employer, Stewart was fatally injured in an accident. The trial court determined that the company-sponsored dinner party was sufficiently work related to be an incident of Stewart’s employment. Id. at 17. We agreed, saying: In our view, the task of obtaining food for a baby sitter is a reasonable and necessary incident to obtaining a baby sitter’s services. Because that task would not have been undertaken except for the obligation of employment, [***19] it, like the task of transporting the baby sitter, is an integral component of an employee’s attendance at a work-related social event. Accordingly, we hold that an employee’s self-contained trip to obtain food for a baby sitter needed to enable him to attend a work-related social event is a special errand or mission. Therefore, an employee’s injury sustained during such a trip is one sustained in the course of [*562] his employment [**415] and is compensable.
C. On-Premises Coffee and Lunch Break Cases
It has been repeatedly and consistently observed that in borderline course-of-employment situations, such as going and coming, or having lunch, the presence of the activity on the premises is of great importance. . . . Accordingly, it should not be necessary, in the typical case of injury during a noon-hour ball game on the company’s ball diamond or in its gymnasium to bolster the case by adding proof of employer sponsorship of the activity or employer benefit therefrom. It is generally held sufficient that the activity is an accepted and normal one, since it thereby becomes a regular incident and condition of the employment. 4 Arthur Larson, Workers’ Compensation Law, § 22.03 (2001).
In Mack Trucks, Inc. v. Miller, 23 Md. App. 271, 326 A.2d 186 (1974), an employee of Mack Trucks ruptured a kidney during a lunch break while playing touch football on a plot of land owned by the employer and located near the plant where the employee worked. Id. at 272. Football had not been expressly authorized by Mack Trucks, but the employer’s safety director had been a spectator [***21] at previous games – which had been going on for three months prior to the claimant’s injury. Id. Judge Lowe, for this Court said: Not only do the employer’s actual knowledge and acquiescence establish the recreational activity as an “incident of employment,” but the period over which it had persisted would, itself, permit that inference. 1 Larson’s Workmen’s [*563] Compensation, § 22.12; citing Moore’s Case, 330 Mass. 1, 110 N.E.2d 764, analyzed and relied upon in Sica. The language of Judge Oppenheimer justifying the Sica result seemed to augur the circumstance here. He gave an illustrative example of a social activity or event that would be sufficiently work-related to be an incident of employment. “The modern institution of the ‘coffee break’ benefits the employer, in maintaining the employees’ morale, as well as the participating employees. There can be little question but that an accident sustained during such an interval on the portion of the employer’s premises set aside for that activity arises out of the employment.” Sica v. Retail Credit Co., 245 Md. 606, at 612, 227 A.2d 33. Mack Trucks, Inc.23 Md. App. 271 at 274. Mack Trucks fits within [***22] part one of the Larson Rule.
In King Waterproofing Co. v. Slovsky, 71 Md. App. 247, 524 A.2d 1245 (1987), Slovsky was struck by a car while crossing a highway. Id. at 249. Slovsky was working a four-hour shift from 4:00 p.m. to 8:00 p.m. on the day of his injury. Id. At 6:30 p.m., during a paid meal break, he was struck while going to a carry-out restaurant located across a public highway from his office. Id. The Commission found that Slovsky’s injury arose [**416] out of and in the course of his employment, and on appeal, the trial court agreed and granted summary judgment in favor of Slovsky. King Waterproofing Co., 71 Md. App. 247 at 251-52. This Court framed the issue for consideration as whether the employee sustained an accidental injury while engaged in some personal comfort activity incidental to his employment. King Waterproofing Co., 71 Md. App. 247 at 253. We likened the facts of the case to prior cases where courts had said, in dicta, that an injury sustained during a coffee break on the employer’s premises is [*564] deemed to have arisen out of the employment. Id. (citing Mack Trucks, Inc., supra, [***23] and Sica, supra. The Slovsky Court reasoned: If an injury that occurs during an on-premises coffee break can arise out of employment, in the sense that it results from an incident of the employment, it follows that an injury sustained during an off-premises coffee break also can arise out of employment. There would appear to be a greater likelihood, however, that an employee who leaves his employer’s premises during a coffee break or rest break may depart from the course of his employment. In regard to the compensability of injuries sustained during off-premises coffee breaks, Professor Larson writes: It is clear that one cannot announce an all-purpose “coffee break rule,” since there are too many variables that could affect the result. The duration might be five minutes, seven minutes, 10 minutes, or even 20 minutes by which time it is not far from that of a half-hour lunch period. Other variables may involve the question whether the interval is a right fixed by the employment contract, whether it is a paid interval, whether there are restrictions on where the employee can go during the break, and whether the employee’s activity during this period constituted a substantial personal deviation. King Waterproofing, 71 Md. App. 247 at 253-54 (quoting 1 Arthur Larson, Workmens’ Compensation Law § 15.54, at 4-116.38 to .40 (1985) (footnotes omitted)). The Court continued: We do not find the circumstances of the instant case to be significantly distinguishable from those in Maryland Casualty Co. v. Insurance Co. of North America, 248 Md. 704, 238 A.2d 88 (1968). There, the Court of Appeals held that an injury sustained by an employee of a racing stable occurred in the course of employment where the employee was injured while en route by automobile to a restaurant near the race track to have coffee. The employee in Maryland Casualty was on call around the clock and was paid on that basis. Although there was a cafeteria located at the race track, the record indicated that it was located at such a [*565] distance from the employee’s work area that a car was considered necessary to get there and return in a reasonable time. The Court relied on these facts, “coupled with the knowledge of the employer that his employees frequently left the track for coffee and meals and that they did so with his approval,” in concluding that the injured employee was “within [***25] the course of his employment” at the time of his injury. 248 Md. at 708, 238 A.2d 88. In the case sub judice, as in Maryland Casualty, the employee left his employer’s premises, with the employer’s tacit consent, to obtain refreshments that were unavailable on the premises. The fact that the employee in Maryland Casualty was “on call,” and therefore arguably within his employer’s control, is of no practical significance since that employee probably could not have returned to his place [**417] of employment, when summoned, in less than 20 minutes, the established duration of the break in the instant case. The appellants argue that it was unnecessary for the appellee to leave the employer’s premises to obtain refreshments because the employer provided such items as coffee and instant soup mixes on the premises. The fact that the employer may have provided certain refreshments, however, does not support an inference that employees were not permitted to leave the premises, given the employer’s acquiescence in that practice. Moreover, the limited fare available on the premises did not satisfy those who, like the appellee, preferred a cold drink. Under all the circumstances, [***26] the appellee, at the time he was injured, was reasonably engaged in ministering to his personal comfort, and his conduct did not constitute a departure from the course of his employment. King Waterproofing Co. 71 Md. App. 247 at 255-56.
For a case with a contrary holding see the line of cases with an INJURY RESULTING FROM UNRESTRAINED CURIOSITY OF EMPLOYEE IS NOT COMPENSABLE where such injury arose neither out of nor in the course of employment. Coates v. J.M. Bucheimer Co., 242 Md. 198, 218 A.2d 191 (1966).
Where curious employee, during her coffee break, went to see the lounge in a new building her employer was constructing and fell from a partially completed loading dock, her injuries did not “arise out of” and were not “in the course of” her employment. Coates v. J.M. Bucheimer Co., 242 Md. 198, 218 A.2d 191 (1966). Compensability in “curiosity cases” depends largely on whether or not what the employee was doing at the time of the injury was a momentary or impulsive act or a deliberate and conscious excursion involving deviation from the usual place of employment. Coates v. J.M. Bucheimer Co., 242 Md. 198, 218 A.2d 191 (1966). Every time an employee deviates from his immediate employment in order to satisfy his curiosity and an injury occurs it does not mean that he will be precluded from receiving compensation under the statute. If the deviation is trifling and momentary it should be disregarded like any other inconsequential act of turning aside. Coates v. J.M. Bucheimer Co., 242 Md. 198, 218 A.2d 191 (1966); Proctor-Silex Corp. v. DeBrick, 253 Md. 477, 252 A.2d 800 (1969).
D. On-Premises Recreation Cases
When seeking for a link by which to connect an activity with the employment, one has gone a long way as soon as one [*566] has placed the activity physically in contact with the employment environment, and even further when one has associated the time of the activity somehow with the employment. This done, the exact nature and purpose of the activity itself does not have to bear the whole load of establishing work connection, and consequently the employment-connection of that nature and purpose does not have to be as conspicuous as it otherwise might. Conversely, if the recreational activity takes place on some distant vacant lot, several hours after the day’s work has ceased, some independently convincing association with the employment must be built up to overcome the initial presumption of disassociation with the employment established by the time and place factors. 4 Arthur Larson, Workers’ Compensation Law § 22.03 (2001).
Time and place, two overt physical indicia of course-of-employment, are strong factors identifying an activity with the employment. Id. at § 22.04(4)(b). If both [time and place] are present, that is, if the game is played on the premises during a lunch or recreation period, compensability has been seen to be clear. But even if only one of the two elements is present, the case has made a very strong start. Thus, if the game is played outside hours, the fact that it is played on the premises is a heavy, although not necessarily decisive, weight on the side of coverage, and may offset a serious deficiency in some other component of the case.”
… In Austin v. Thrifty Diversified, Inc., 76 Md. App. 150, 543 A.2d 889 (1988),, the parents of John Austin [*567] (“John”) brought a tort claim against John’s employer for their late son’s wrongful death. Id. at 152. The issue presented was whether the exclusive remedy for John’s parents was under the Workers’ Compensation Act. Id. at 151-52. The answer to that [**418] question depended on whether John’s death arose out of and in the course of his employment with Thrifty Diversified, Inc., t/a Better Engineering (“Thrifty”). Id. John worked for Thrifty as a welder. Id. at 153. On the date of his fatal injury, he received permission to use his employer’s welding equipment to repair a friend’s automobile exhaust system. Id. Shortly after John’s shift ended, while still on his employer’s premises and while working on his friend’s exhaust system, John was electrocuted by faulty welding equipment supplied by Thrifty… the deceased’s death “would not have ensued if it had not been for the employment”; it was only because the deceased was an employee of appellee that he was permitted to use appellee’s equipment, on appellee’s premises, for a personal project. Moreover, the instrumentality of the death, the place where it happened, and the activity giving rise to it were the same as those he encountered in his employment; hence, it may be said that the death was brought about by the hazard of the employment. Under these circumstances, it may not be seriously contended that the death did not arise out of the deceased’s employment. Id. at 159 (emphasis added). Turning to the issue of whether Austin’s injuries arose “in the course of employment,” the Austin Court found instructive cases dealing with employees injured or killed while engaged [*568] in picnics and other company sponsored social activities. Id. at 159-61. The Austin Court noted that an important factor in those cases was whether the employer gained anything from the employee’s recreational endeavor. Id. at 160. The Austin Court quoted from the New Jersey Supreme Court case of Ricciardi v. Damar Products Co., 45 N.J. 54, 211 A.2d 347, 349 (N.J. 1965), as follows: We think it clear the picnic was sponsored by the employer in part at least to further its own interests. That the employees were free to attend or to stay away is not a critical fact. Nor is it decisive that wages were not paid those who did appear, . . . or that the picnic was held at a place other than the work premises. Rather[,] the question is whether the event is sufficiently work-connected to bring employees within coverage of the compensation law, a law which provides protection for employees, not because of fault or failure of the employer, but rather upon the belief that the enterprise itself should absorb losses which inevitably and predictably are an incident of its operation. Where, as here, the employer sponsors a recreational event for the purpose of maintaining or improving relations with and among employees, the employees gratify the employer’s wish by attending and thus serve the employer’s business aim. It therefore is correct to say the Legislature intended the enterprise to bear the risk of injuries incidental to that company event. Hence the picnic itself was a covered affair. (Citations omitted) . . . .Austin, 76 Md. App. 150 at 160. Later, the Austin Court concluded: In the instant case, we are not concerned with an employer sponsored social or recreational activity; rather, we are concerned with an employer’s policy of allowing employees to work on personal projects on its premises, using its tools, after the work day has ended. Nevertheless, the . . . [Sica v. Retail Credit Co., 245 Md. 606, 227 A.2d 33 (1967), and Coats and Clark’s Sales Corp. v. Stewart, 39 Md. App. 10, 383 A.2d 67 (1978)] analysis, to the extent that it focuses on the benefit expected by, or accruing to, the employer, is equally applicable to the case subjudice. The benefit expected by, or accruing to, the employer as a result of allowing personal projects to be done using its equipment and on its premises is no different than that flowing to the employer as a result of its sponsorship of recreational or social events. Austin, 76 Md. App. 150 at 161-62.
In McNamara v. Town of Hamden, 176 Conn. 547, 398 A.2d 1161 (Conn. 1978), the Supreme Court of Connecticut considered whether an injury sustained while an employee was playing ping-pong on his employer’s premises arose out of and in the course of his employment. McNamara, 176 Conn, 547, 398 A.2d 1161 at 1163. The claimant’s work day was from 8 a.m. to 4:30 p.m. Id. Approximately eighty of the claimant’s co-employees were in the habit of assembling at their employer’s garage before work about 7:30 a.m. every day. Id. Several months prior to the date of injury, this group of employees received permission from the employer to purchase a ping-pong table and accessories at the employees’ own expense, and [***33] to install the table in the garage. At 7:55 a.m. on the date he was injured, the claimant tripped and fell while playing ping-pong; he claimed workmen’s compensation benefits for lost time from work and medical expenses due to his fall. Id. Given that the employer sanctioned the ping-pong games by regulating permitted playing times, by allowing equipment on the premises, and by setting aside actual work hours in the afternoon for the activity, and that the games occurred regularly on the employer’s premises, the court held that sufficient facts existed upon which to conclude that the games were an incident of the employment. McNamara, 176 Conn. 547, 398 A.2d 1161 at 1166. The court concluded by outlining a rule for determining whether an activity is incidental to employment: “If the activity is regularly engaged in on the employer’s premises within the period of the employment, with the employer’s approval or acquiescence, an injury occurring under those conditions shall be found to be compensable.” Id.
In Nazario v. New York State Department of Correction, 86 A.D.2d 914, 448 N.Y.S.2d 531 (N.Y. App. Div. 1982), the court summarized the facts surrounding a prison guard’s accidental injury in a softball game thusly: Claimant’s team was comprised exclusively of coemployees and was managed by a sergeant at the facility. Participation was voluntary. Claimant testified [***37] that the essential purpose of the team was to promote employee morale. He further stated that written application to the superintendent of the institution was necessary for approval to use the field. The employer acquiesced in the use of its name on T-shirts worn by team members, but it does not appear that the employer provided financial support. Game scores and schedules were posted on the employer’s bulletin board. On appeal, the Nazario court affirmed in a succinct, but not terribly helpful, opinion: The determination of whether claimant’s accident arose out of and in the course of employment presents a factual question for the board. Pertinent herein is the fact that the employer could terminate the athletic activities on its premises at will. Moreover, it is not insignificant [***38] that the activity benefited [sic] employer-employee relations. In our view, there is substantial evidence to sustain the determination of the board. The essential nexus between the softball game and the employer has been established. Decision affirmed, with costs to the Workers’ Compensation Board.
In Keystone Steel & Wire Co. v. Industrial Commission, 40 Ill. 2d 160, 238 N.E.2d 593 (Ill. 1968), the claimant was a steel-mill recorder, who participated in an organized softball game, an activity commonly engaged in by co-employees. Keystone, 40 Ill. 2d 160, 238 N.E.2d 593 at 593-94. The claimant broke his leg while sliding into third base. Keystone, 40 Ill. 2d 160, 238 N.E.2d 593. The injury occurred on land managed and controlled by the employer after the claimant had completed his day’s work. Keystone, 40 Ill. 2d 160, 238 N.E. 2d at 593 at 594. The employees sponsored the softball game and paid for equipment, bases, services of umpires, and a trophy awarded at the end of the season. Keystone, 40 Ill. 2d 160, 238 N.E.2d 593 (Ill. 1968). The court said that it did not believe the scope of employment could be stretched to include the softball game in which claimant was injured. Keystone, 40 Ill. 2d 160, 238 N.E.2d 593 at 594. The court continued: The company in the case at bar exerted no pressure or encouragement for participation and derived no advertising benefit from the games. Moreover the company did not sponsor the event, nor was it held during regular working hours . . . . The ball game was solely for the recreation and personal diversion of the employees, without any substantial business advantage to the company. Whatever improvement may have resulted in morale or employee-employer relations is far too tenuous to provide a basis for saying the injury was sustained either out of or in the course of the employment. Nor is it of importance on this issue that the company acquiesced in the activities, provided the use of its land for the ball diamond, permitted the canteen machines to be located in the plant, and allowed employees to trade shifts in order to play. All the company did, in essence, is to cooperate in enabling employees to engage in social and recreational activities on their own time. To hold that such gratuitous contributions entail liability without fault for injuries at play penalizes the mere providing of benefits and will most certainly tend to discourage it. Facts such as those in this case are totally insufficient to convert this recreational activity into an incident of employment. However different the views may have become after the event, it is hardly likely that either the company, or the employee, or anyone else engaged in or watching the game then thought that it was part of the employment or that the claimant was on the job at the time. He was not hired as a ballplayer but as a factory worker, and his hours of work having ended for the day the only reasonable inference under the circumstance is that he was no longer in the course of his employment. Keystone, 40 Ill. 2d 160, 238 N.E.2d 593 at 594-595.”
Appellant may argue that a cigarette break is a detour not covered by the Act. In Spencer v. Chesapeake Paperboard Co., 186 Md. 522, 528 (Md. 1946) the court stated “if we assume that the fire was caused by a lighted cigarette, then the accidental injury may have arisen from an incident of the employment. It is recognized that there are many occasions where the employer must expect the employee to resort to the use of tobacco as a common adjunct to the discharge of his employment. Puffin v. General Electric Co., 132 Conn. 279, 43 A. 2d 746; Dzikowska v. Superior Steel Co., 259 Pa. 578, 103 A. 351, L. R. A. 1918F, 888. As the Supreme Court of California said during the First World War: “Tobacco is universally recognized to be a solace to him who uses it, and it may be that such a one, unless he finally shakes off the habit, cannot perform the labors of his life as well without it as with it. [***12] In the present war one of the constantly recurring calls upon the public of the world is for tobacco for the comfort of the participants in the conflict.” Whiting-Mead Commercial Co. v. Industrial Accident Commission, 178 Cal. 505, 173 P. 1105, 1106, 5 A. L. R. 1518. Spencer v. Chesapeake Paperboard Co., 186 Md. 522, 528 (Md. 1946)
. Another line of cases that might provide guidance in this case are the exceptions to the going and coming rule. The general rule is that if you are on your way to work and have not arrived or you have left the work premises and are on your way home there is no Worker’s Compensation coverage. The “exceptions” to the general going and coming rule recognized in Maryland are the “proximity rule” and the “premises rule”.
The elements of the “proximity rule” were defined by Chief Judge Murphy in Stoskin v. Board of Education of Montgomery County, 11 Md. App. [***8] 355, 274 A. 2d 397 (1971), The proximity rule — an exception to the general going and coming rule — is that an employee is generally considered to be in the course of his employment while coming to or going from his work, when, though off the actual premises of his employer, he is still in close proximity thereto, and is proceeding diligently at an appropriate time, by reasonable means, over the natural, practical, customary, convenient and recognized way of ingress or egress, either on land under the control of the employer, or on adjacent property with the express or implied consent of the employer. Stoskin v. Board of Educ., 11 Md. App. 355, 274 A.2d 397 (1971). Maryland Paper Products Company v. Judson, 215 Md. 577, 585. As analyzed in Pariser Bakery v. Koontz, 239 Md. 586, 591, the rule “allows compensation for an injury to an employee when, under the special facts of the case, the employment itself involves peculiar and abnormal exposure to a common peril which is annexed as a risk incident to the employment.” The gravamen of the proximity rule “is not that the employee is in close proximity to his place of employment, but rather that by reason of such proximity, the employee is subjected to danger peculiarly or to an abnormal degree beyond that to which the general public was subjected.” Pariser Bakery, at page 591.
The “premises rule”, also a creature of case law, is designed to allow compensation for injuries sustained before or after actual working hours while on the premises of the employer and/or under an extension of the literal concept of “premises”. 2 Larson, supra, § 15.12; Salomon v. Springfield Hospital, 250 Md. 150, 242 A. 2d 126 (1968); Proctor-Silex [*93] Corp. v. DeBrick, supra; Saylor v. Black & Decker Manufacturing Co., 258 Md. 605, 267 A. 2d 81 (1970).
Speaking for the Court of Appeals in Salomon, supra, Judge Marbury articulated the “premises rule” in the following context: “. . . we recognize that ordinarily an employee who has arrived on his employer’s premises as usual, in preparation for beginning his day’s work, is considered to be on the premises and therefore covered by workmen’s compensation even though his actual employment has not begun. . . .” 250 Md. at 155. (Emphasis added.) In addition there are a line of cases not referred to in Montgomery County v. Smith, which are cases involving an injury on the employers premises while not actually working.
“An accidental injury arises in the course of employment when it happens during the period of employment at a place where the employee reasonably may be in the performance of his duties and while he is fulfilling those duties or engaged in something incident thereto.’ Inquiries pertinent in this regard include: When did the period of employment begin? When did it end? When was its continuity broken? How far did the employee, during the period of employment, place himself outside the employment? Watson v. Grimm, 200 Md. 461, 466.” Id. at 183-84. Proctor-Silex Corp. v. DeBrick, 253 Md. 477, 252 A.2d 800 (1969).
Ordinarily an employee who has arrived on his employer’s premises as usual, in preparation for beginning his day’s work, is considered to be on the premises and therefore covered by workmen’s compensation, even though his actual employment has not begun; however, “premises” does not necessarily include all property owned by an employer. Salomon v. State, 250 Md. 150, 242 A.2d 126 (1968); Proctor-Silex Corp. v. DeBrick, 253 Md. 477, 252 A.2d 800 (1969); Saylor v. Black & Decker Mfg. Co., 258 Md. 605, 267 A.2d 81 (1970). Giant Food, Inc. v. Gooch, 245 Md. 160, 225 A.2d 431 (1967); Pappas v. Modern Mfg. Co., 14 Md. App. 529, 287 A.2d 798 (1972). Rice v. Revere Copper & Brass, Inc., 186 Md. 561, 48 A.2d 166 (1946); Proctor-Silex Corp. v. DeBrick, 253 Md. 477, 252 A.2d 800 (1969).
Maryland law recognizes that collecting wages and gathering personal effects are incidents of employment and that on-premises injuries suffered while performing these activities may occur in the course of employment. See Consolidated Eng’g Co. v. Feikin, 188 Md. 420, 52 A.2d 913 (1947); Nails v. Market Tire Co., 29 Md. App. 154, 347 A.2d [*578] [**694] 564 (1975). Professor Larson echoes this notion, stating [***14] that “injuries incurred by an employee while leaving the premises, collecting pay, or getting his clothing or tools within a reasonable time after termination of the employment are within the course of employment, since they are normal incidents of the employment relation.” A. Larson, supra, at § 26.00. Checking a work schedule is similar to collecting a paycheck or removing personal effects. Checking a work schedule–like collecting wages and personal effects–is incident to employment. Livering v. Richardson’s Rest., 374 Md. 566, 823 A.2d 687 (2003).
There is another line of cases under the premises rule that involves parking lots.
In Proctor-Silex, supra, where an employer’s parking lot in Baltimore County was located across Coolidge Avenue from the employer’s plant and the employee was injured when she slipped and fell as she was crossing from the parking lot to the building in which she was employed, the injuries were held to be compensable. In a comprehensive opinion reviewing Maryland cases and leading cases in other jurisdictions principally involving the subject of “premises”, Judge Smith quoted from Larson, op. cit., supra, § 15.41, with respect to parking lots: “As to parking lots owned by the employer, or maintained by the employer for his employees, the great majority of jurisdictions consider them part of the premises whether within the main company premises or separated from it.” (Emphasis added.). Giant Food v. Gooch, 245 Md. 160, 225 A. 2d 431 (1967); Smith v. General Motors Assembly Division, 18 Md. App. 478, 307 A. 2d 725 (1973); Pappas v. Modern Mfg. Co, supra. Travel between two parts of an employer’s premises, “One category in which compensation is almost always awarded is that in which the employee travels along or across a public road between two portions of his employer’s premises, whether going and coming, or pursuing [***13] his active duties. “Since, as shown later, a parking lot owned or maintained by the employer is treated by most courts as part of the premises, the majority rule is that an injury in a public street or other off-premises place between the plant and the parking lot is in the course of employment, being on a necessary route between the two portions of the premises. But if the parking lot is a purely private one, the principle of passage between two parts of the premises is not available, and an employee crossing a public street to get to the parking lot is not protected.” 253 Md. at 482, 483. (Emphasis in Proctor-Silex