Lee v. BSI Temporaries, Inc.

• Decision Date: 01 September 1996
• Docket Number: No. 813,813
• Citation: Lee v. BSI Temporaries, Inc., 688 A.2d 968, 114 Md.App. 1 (Md. App. 1996)
• Parties: Peggy LEE v. BSI TEMPORARIES, INC. et al. ,
• Court: Court of Special Appeals of Maryland

Page 1

114 Md.App. 1

688 A.2d 968

Peggy LEE v. BSI TEMPORARIES, INC. et al.

No. 813, Sept. Term, 1996.

Court of Special Appeals of Maryland.

Feb. 7, 1997.

Robert Taylor, Jr. (Ingerman & Horwitz, on the brief), Baltimore, for Appellant.

Mark T. Krause (Antonio R. Lopez and Steven J. Meltzer and the Law Office of Joseph F. Lavin, on the brief), Baltimore, for Appellees.

Argued before MURPHY, C.J., and MOYLAN and CATHELL, JJ.

CATHELL, Judge.

Once again, the issue facing us is whether a worker's accidental injuries arose out of and in the course of her employment. In this case, the employee sustained her injuries while riding on a bus that was provided by her employer. The Workers' Compensation Commission decided that issue against Peggy Lee, appellant, the employee, and in favor of BSI Temporaries, Inc., appellee, the employer, and that determination was confirmed by the Circuit Court for Baltimore City. Appellant filed a timely appeal therefrom; she presents three issues:

A. If an employer hires a third party to transport employees to and from the workplace, and the cost of this service is met by a fee deducted from each employee's paycheck, are injuries suffered by an employee while using this service compensable under Maryland['s] worker[s'] compensation statutes?

B. Under the "employer conveyance" exception to the coming and going rule, must a claimant demonstrate that the employer was "obligated" to provide transportation?

C. Given the agreed-upon facts of this case, did the employee suffer a compensable work-related injury?

In actuality, we need only speak to appellant's first issue. In order to address that issue, we will need to analyze the scope of the employer conveyance exception to the coming and going rule, thereby answering appellant's second issue. Appellant's third issue is little more than a restatement of the first.

The Relevant Facts

We shall begin by setting forth the facts of this case, which are neither complicated nor in dispute. Peggy Lee, appellant, was an employee of BSI Temporaries, Inc. (BSI), appellee, ¹ a temporary services agency. On July 19, 1995, appellant, while employed by BSI, was working at a Proctor & Gamble plant in Baltimore. BSI contracted with the Woodlawn Bus Co. (Woodlawn) to transport its employees to and from the Proctor & Gamble plant on a daily basis. BSI designated various locations and times throughout the Baltimore area where the Woodlawn buses stopped to pick up and discharge the employees; only BSI employees were allowed to ride the buses. BSI employees were neither obligated nor required to use the bus service. The employees, including appellant, were free to arrange their own transportation to the plant. Those who chose to make use of the bus service had five dollars deducted from their paychecks for each day they utilized the bus service. The funds that BSI collected from the employees roughly equaled the amount that BSI paid to Woodlawn under the contract. Furthermore, BSI directed its employees to bring any complaints about the bus service to its attention.

On July 19, 1995, appellant was injured while riding on one of the buses when that bus struck a curb. As a result of the injury, appellant filed a claim with the Workers' Compensation Commission. A hearing was held on November 15, 1995, and appellant's claim for benefits was denied. The Commission found that appellant had not sustained an accidental injury arising out of and in the course of her employment with BSI. ² Thereafter, appellant appealed to the Circuit Court for Baltimore City, and that court, on March 28, 1996, confirmed the Commission's determination. ^{3 3} Appellant filed a timely notice of appeal therefrom.

The Law

It is a well settled principle that injuries sustained by an employee while he or she is commuting to or from work are generally not considered to arise out of and in the course of employment and, therefore, are not compensable under our workers' compensation statute. Morris v. Board of Educ., 339 Md. 374, 379, 663 A.2d 578 (1995); Alitalia Linee Aeree Italiane v. Tornillo, 329 Md. 40, 44, 617 A.2d 572 (1993); see also Board of Trustees v. Novik, 326 Md. 450, 453, 605 A.2d 145 (1992); Maryland Casualty Co. v. Lorkovic, 100 Md.App. 333, 345, 641 A.2d 924 (1994). This is commonly referred to as the "coming and going" rule. In Morris, former Court of Appeals Chief Judge Murphy explained the rationale behind the noncompensability of injuries sustained while an employee is commuting:

This is because getting to work is considered to be an employee's own responsibility and ordinarily does not involve advancing the employer's interests. Moreover, the hazards encountered by an employee while commuting to work are common to all workers, no matter what their job, and, hence, such risks cannot be directly attributable to a person's particular employment.

339 Md. at 380, 663 A.2d 578 (citation omitted); see also Cardillo v. Liberty Mut. Ins. Co., 330 U.S. 469, 479, 67 S.Ct. 801, 807, 91 L.Ed. 1028 (1947) (injuries incurred while commuting "arise out of the ordinary hazards of the journey, hazards which are faced by all travelers and which are unrelated to the employer's business"); Wiley Mfg. Co. v. Wilson 280 Md. 200, 206, 373 A.2d 613 (1977); Salomon v. Springfield Hosp., 250 Md. 150, 154, 242 A.2d 126 (1968). Stated otherwise,

[i]njuries sustained while an employee is traveling to or from the workplace ordinarily are not compensable ... because the hazards which employees face during daily commuting trips are common to the public at large. The risks to which an employee is exposed while going to or coming from work are no different from the ones which confront workers while they are traveling on personal excursions.

Richard P. Gilbert & Robert L. Humphreys Jr., Maryland Workers' Compensation Handbook § 6.6 (2d ed.1993) (footnotes omitted).

As with many general principles of law, the coming and going rule is subject to several exceptions. Among them are two related and somewhat overlapping exceptions: the free transportation exception and the employer conveyance exception. The distinctions between the two, as we shall explain, are the degree of control exercised by the employer over the mode of transportation and to what extent the employer was under an obligation to furnish the employee with the transportation.

Appellant contends that her workers' compensation claim comes under the employer conveyance exception. Appellant has, however, cited many cases decided under the free transportation exception in her brief as support for her position. Therefore, we shall address both. In doing so, we are mindful that "[e]ach case involving the going and coming rule and its exceptions must turn on its own particular facts." Alitalia, 329 Md. at 46, 617 A.2d 572; Morris, 339 Md. at 381, 663 A.2d 578; Lorkovic, 100 Md.App. at 355, 641 A.2d 924; see also Cardillo, 330 U.S. at 479, 67 S.Ct. at 807. We are also heedful of the requirement that "the Maryland Workers' Compensation 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." Alitalia, 329 Md. at 48, 617 A.2d 572.

The Free Transportation Exception

The first Maryland case to engraft an exception onto the coming and going rule was Harrison v. Central Constr. Co., 135 Md. 170, 108 A. 874 (1919). Joel Harrison was employed by the Central Construction Co., and, under the terms of his employment agreement, he was furnished with "free transportation" to and from his workplace. While boarding a special "work train," Harrison fell and suffered a traumatic amputation of his lower leg. His claim for workers' compensation benefits was challenged by his employer as being within the coming and going rule exclusion. Relying on cases from foreign jurisdictions, the Court of Appeals determined:

When the injury occurs before the beginning or after the termination of work there are two general rules applicable to the question as to whether it arose out of and in the course of the employment. The first is that an employee, while on his way to work, is not in the course of his employment. The second is that where the workman is employed to work at a certain place, and as a part of his contract of employment there is an agreement that his employer shall furnish him free transportation to or from his work the period of service continues during the time of transportation, and if an injury occurs during the course of transportation it is held to have arisen out of and in the course of employment.

135 Md. at 177-78, 108 A. 874; see also Rumple v. Henry H. Meyer Co., 208 Md. 350, 118 A.2d 486 (1955). In short, as pertinent to the case sub judice, Harrison rode to and from work each day on a train that was neither owned nor operated by his employer, and yet, because his employer was obligated to provide that transportation to Harrison for free, he was awarded compensation even though his injury occurred while he was commuting.

In Cardillo, supra, the United States Supreme Court considered the workers' compensation claim of a District of Columbia man. Clarence Ticer, the employee, was part of a car pool from his home in the District to his workplace in Virginia. Pursuant to an agreement between his union and the employer, Ticer and his coworkers were to be "furnished" with "[t]ransportation ... for all work outside the District of Columbia." The employer also agreed that each laborer would be paid two dollars per day as transportation expenses, and this amount represented the approximate cost of round-trip travel. Ticer was fatally injured while commuting to work one day when a rock came through the windshield of the car he was driving and struck him in the head. His wife's death benefits claim was opposed by the employer and insurer who argued that Ticer's injury did not arise out of and in the course of his employment. ...