Doe v. Buccini Pollin Group Inc. D/B/A Pm Hospitality Strategies Inc., 812

CourtCourt of Special Appeals of Maryland
Writing for the CourtPanel: EYLER, JAMES R., MEREDITH, ARRIE W. DAVIS (Retired, Specially Assigned), JJ.
Citation201 Md.App. 409,29 A.3d 999
PartiesJohn DOEv.BUCCINI POLLIN GROUP, INC. d/b/a PM Hospitality Strategies, Inc. et al.
Docket Number2010.,Sept. Term,No. 812,812
Decision Date03 October 2011

201 Md.App. 409
29 A.3d 999

John DOE
BUCCINI POLLIN GROUP, INC. d/b/a PM Hospitality Strategies, Inc. et al.

No. 812

Sept. Term


Court of Special Appeals of Maryland.

Oct. 3, 2011.

[29 A.3d 1001]

Anne M. Miller (Frederick W. Miller, Miller & Miller, PA, on the brief), Baltimore, MD, for appellant.Lawrence G. Giambelluca (Rudolph L. Rose, J. Gregory Donlin, Julie D. Murray, Semmes, Bowen & Semmes, on the brief), Baltimore, MD, for appellee.Panel: EYLER, JAMES R., MEREDITH, ARRIE W. DAVIS (Retired, Specially Assigned), JJ.ARRIE W. DAVIS (Retired, Specially Assigned), J.

[201 Md.App. 413] This appeal presents the question of whether an injury suffered by appellant at the hands of a third party was “directed against [him] in the course of” his employment. John Doe, appellant, appeals from the decision of the Circuit Court for Baltimore City that reversed an award of benefits made by the Workers' Compensation Commission. In this workers' compensation case, appellant raises two issues, which we have combined and rephrased to be whether the circuit court properly ruled that appellant's injuries were not covered by the Maryland Workers' Compensation Act (Act).1 Md.Code [201 Md.App. 414] (1991, 1999 Repl.Vol., 2007 Supp.), § § 9–101 et seq. of the Labor and Employment Article (LE or Act). For the reasons set forth below, we shall hold that appellant's injuries are not covered by the Act because the assault that caused them was not “directed” against him in the course of his employment. Hence, we affirm the decision of the circuit court.

Background and Procedure

According to an agreed statement of facts, appellant worked as a banquet houseman at the BWI Hilton Hotel in Linthicum.

[29 A.3d 1002]

He was responsible for setting up tables in the banquet hall.2 The events of this case began with a disagreement with a co-worker, Keya Gardner, over work supplies, specifically a supply cart. Appellant had stocked the cart. After appellant took a break, he returned to find the cart missing. He then sought to retrieve the cart from Gardner. Gardner refused to allow appellant to take the cart and, while he was taking the cart, appellant's hand touched Gardner's hand. Gardner then became enraged and began to curse. She followed appellant into a banquet room, continuing her rant, and also upset several banquet tables that appellant had prepared.

Gardner, still in a rage, used her cell phone to call a friend, Darryl Newsome. She told him that “[appellant] touched my hand and you should come get your thing and take care of him.” The argument moved to the lobby and came to the attention of the banquet supervisor. Apparently in response to the argument between appellant and Gardner, appellant's supervisor told appellant that, since his shift was just about over, he should clock out and go home. Appellant changed into street clothes and, at about 9:38 p.m., signed out to go home. [201 Md.App. 415] He offered a ride to a Mr. Wees, who lived in Baltimore. As they left the hotel lot, appellant saw Darryl Newsome. Shortly thereafter, Gardner left the hotel lot in a separate vehicle.

The stipulated facts portray a chase as Gardner and appellant were traveling at a high rate of speed. Appellant brought his vehicle to a stop in a dark alley behind Wees's home in Baltimore City, about thirteen miles from the hotel. Newsome arrived in his vehicle, pulled behind appellant's car, emerged and shot appellant, rendering him a paraplegic.3


On August 19, 2008, appellant filed a claim for workers' compensation benefits under the Act.4 A hearing on this claim was conducted on December 4, 2008 before the Workers' Compensation Commission (Commission). On December 12, 2008, the Commission awarded appellant temporary total disability[201 Md.App. 416] benefits and associated medical expenses. The Commission denied

[29 A.3d 1003]

the employer's motion for rehearing on January 16, 2009 and, on January 26, the employer filed a petition for judicial review in the Circuit Court for Baltimore County. See Md.Code (1991, 1999 Repl.Vol., 2008 Supp.), § 9–737 of the Labor and Employment Article (LE).5

Initially, the parties filed cross-motions for summary judgment. The circuit court denied these motions and set the [201 Md.App. 417] matter for trial. Following a hearing on April 27, 2010, the circuit court reversed the Commission's decision awarding benefits and this appeal followed. In overturning the Commission's award, the circuit court determined that appellant's injuries were not covered by the Act. The trial judge's ruling from the bench included the following:

At the proceedings below, the Workers' Compensation Commission awarded benefits to the claimant. As I stated, the employer and insurer have appealed that award. The central issue in this case is whether the claimant's injury is compensable under the Workers' Compensation law.

* * *

Here, the appellant employer and insurer maintain that the only category of injury that could make the claimant's injury compensable falls under the ambit of Section 9–101(b)(2) of the Labor & Employment Article. That section defines an accidental injury as being;

“an injury caused by a willful or negligent act of a third person directed against a covered employee in the course of the employment of the covered employee; ...”

It is noteworthy, as the appellant has maintained in this appeal, that the other two subsections of Section 9–101(b) cover actions that; “arise out of and in the course of employment”, as opposed to

[29 A.3d 1004]

the language in Section 9–101(b)(2) that does not include language that “arises out of and in the course of employment” and only includes the language “in the course of employment.” The plain language of the statute restricts compensation to injuries resulting from willful acts to only those injuries that occur in the course of employment.

[I]t is well settled that in the “course of employment” refers to the time, place and circumstance in which the injury occurred, and requires that an injury take place while the employee is at the place of employment performing his duties, or engaged in some task incident to [his] duties.

* * *

[201 Md.App. 418] Here, there is no dispute that the claimant was not at work and was not performing any task incident to his employment when he was most unfortunately, and regrettably shot.

The circuit court surveyed case law from other jurisdictions in which compensation awards were granted in similar factual situations. Citing the Court of Appeals' decision in Edgewood Nursing Home v. Maxwell, 282 Md. 422, 384 A.2d 748 (1978), the court rejected appellant's argument that this case presents an exception to the “going and coming rule”—the proximity rule—under which coverage for an injury, while generally excluded, would be allowed under certain circumstances. The court explained:

Specifically, the claimant highlights this exception [proximity rule] and argues that exposure to a co-worker who would seek to have him killed over a minor workplace dispute, constitutes a special hazard that really should allow this injury to be compensable, even though injury occurred over thirteen miles from the place of employment, after the employee punched out for the day, and while the employee was not engaged in any activity on the employer's behalf.

The proximity rule states that, by virtue of being in close proximity to his place of employment, an employee who is subjected to special risks beyond those to which the general public is exposed, and sustains an injury from that enhanced risk, sustains a compensable injury even though the injury occurs off the property of the workplace.

While geographic proximity is not the sole factor at play under the proximity rule it clearly is a factor, and one that, under the facts of this case, regrettably, the claimant can not satisfy.

Clearly, the Court understands the significant and tragic nature of this case. But I am required to apply the law as the Court understands it to be written at this time. And so, based on that, I do find that the employer and insurer has carried their burden of demonstrating, by a preponderance [201 Md.App. 419] of the evidence, that the decision reached by the Workers' Compensation Commission was wrong.

Therefore, based on the law as it exists today, this Court has no choice but to reverse the Workers' Compensation Commission's award of compensation and deny the claim for benefits that were made on behalf of the claimant.

This timely appeal followed.

Standard of Review

Appellate scrutiny of a workers' compensation decision depends upon the manner of the circuit court's judicial review of the Commission's decision. There are two modalities of judicial review in the circuit court:

A party dissatisfied by the action of the Commission may seek review in a circuit

[29 A.3d 1005]

court by either proceeding on the record made before the Commission (much like judicial review of the final action of most state administrative agencies) or receive a new evidentiary hearing and decision before a jury [or the court] (much like an original civil complaint brought in a circuit court). Under either process ... the agency's decision is entitled to a presumption of correctness that must be overcome.Baltimore County v. Kelly, 391 Md. 64, 67–68, 891 A.2d 1103 (2006). In the case before us, the circuit court conducted a de novo trial based on stipulated facts. Although the Commission's decision is presumptively correct, see Wal Mart Stores, Inc. v. Holmes, 416 Md. 346, 357, 7 A.3d 13 (2010), “the propriety of the Commission's original fact finding is a matter of no consequence[,]” where there is a de novo proceeding in the circuit court. Bd. of Educ. for Montgomery County v. Spradlin, 161 Md.App. 155, 173, 867 A.2d 370 (2005). This is so because the circuit court in a trial de novo engages in a fresh consideration of the facts. See Keystone Masonry Corp. v. Hernandez, 156 Md.App. 496, 505–06, 847 A.2d 493...

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    ...upon the manner of the circuit court's judicial review of the Commission's decision.” [40 A.3d 481] Doe v. Buccini Pollin Grp., Inc., 201 Md.App. 409, 419, 29 A.3d 999 (2011). We there cited to “two modalities of judicial review,” viz. a review on the existing record generated before the Co......
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