Livering v. Richardson's Restaurant

Decision Date09 May 2003
Docket NumberNo. 95,95
Citation823 A.2d 687,374 Md. 566
PartiesLinda D. LIVERING v. RICHARDSON'S RESTAURANT and PMA Management Corporation.
CourtMaryland Court of Appeals

Gregory C. Bannon (Bannon & Balog, on brief), Hagerstown, for appellant.

Joseph F. Zauner, III (Leslie W. Gawlik, on brief), Baltimore, for appellees.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

RAKER, J.

This is a workers' compensation case involving the question of whether appellant's injury was one arising out of and in the course of employment. The issue presented is whether appellant Linda Livering's accidental injury, suffered on a day off but while checking her work schedule at her place of employment, arose out of and in the course of her employment such that it is compensable under Maryland Workers' Compensation law. We shall hold that her injury arose out of and in the course of employment.

I.

Richardson's Restaurant employed Livering as a salad preparer. Richardson's owner, Bobby Resh, posted the employee work schedule each Sunday, and the new schedule operated from the following Thursday. Resh had a "tendency" to change the work schedule. Employees would visit or call the restaurant to verify the schedule. If there were a schedule change, Richardson's would attempt to call or visit the affected employee, or failing that, work with the employees already on site or make do without additional help. Livering could not be called regarding schedule changes because she did not have a telephone.

According to Livering's testimony, she was not working on November 28, 2000, and was not scheduled to work but visited the restaurant to confirm her work schedule. In the three weeks of her employment prior to this day, Livering's schedule had changed at least twice. On one occasion, she was late for work when her employer changed her starting time from noon to 7:00 a.m., and her employer inquired into her tardiness. On the day of her injury, she and her boyfriend, James Morris, visited the restaurant while in the course of running personal errands; Morris ordered a cup of coffee at the bar, and Livering checked the work schedule posted in the kitchen. After speaking briefly in the bar area with co-employee, cashier, and day manager, Louise Rainey, Livering left the restaurant. As Livering and Morris exited, she slipped and fell on the ramp just outside the door, injuring her wrist. Morris drove her to the Washington County Hospital emergency room, where she was treated for a dislocated and broken wrist.

Livering filed a claim with the Maryland Workers' Compensation Commission. The Commission ruled that Livering did not sustain an accidental injury arising out of and in the course of employment. Livering then filed a petition for judicial review in the Circuit Court for Washington County and elected a bench trial. At trial, the parties disputed whether Livering actually checked her work schedule during her visit to the restaurant. The court found that Livering was not working on the day in question and that she had checked her work schedule on the employer's premises.1 The Circuit Court affirmed the Commission, concluding that Livering "did not sustain an accidental injury arising out of and in the course of employment with Richardson's Restaurant, as defined under the Workers' Compensation law of Maryland."

Livering noted a timely appeal to the Court of Special Appeals. We granted certiorari on our own initiative prior to consideration by that court to consider whether Livering's accidental injury arose out of and in the course of her employment. See Livering v. Richardson's, 372 Md. 429, 813 A.2d 257 (2002).

II.

Before this Court, Livering argues that the Circuit Court erred in concluding that her injury did not arise out of and in the course of her employment in accordance with Maryland Code (1991, 1999 Repl.Vol. & 2002 Supp.) § 9-101(b)(1) of the Labor and Employment Article.2 She argues that checking her schedule was incident to her employment, that while Richardson's Restaurant did not require employees to check their schedules, it acquiesced in the practice, and that her activity benefitted the restaurant. Therefore, her resulting injury arose out of and in the course of her employment.

Appellees Richardson's Restaurant and PMA Management Corporation argue that Livering's injury is not compensable. They note that not every injury that occurs on the employer's property is compensable and contend that there is no causal connection between Livering's work and her injury. In the main, they argue that her injury did not arise out of her employment because she was not required to visit the restaurant to verify her schedule; rather, her visit constituted a personal errand performed for her own convenience that did not benefit or involve the employer.

III.

In a workers' compensation claim, a party aggrieved by a decision of the Commission may petition the Circuit Court for judicial review. See § 9-737. In the judicial proceedings, the decision of the Commission is prima facie correct, and the party challenging that decision bears the burden of proof. § 9-745(b); see also Martin v. Beverage Capital Corp., 353 Md. 388, 401-02, 726 A.2d 728, 735 (1999)

; Sica v. Retail Credit Co., 245 Md. 606, 612, 227 A.2d 33, 36 (1967). The petitioner may request a trial which essentially is de novo. See § 9-745; Holman v. Kelly Catering, Inc., 334 Md. 480, 484, 639 A.2d 701, 703 (1994). A reviewing court "shall reverse or modify the decision" of the Commission if the court determines that the Commission "did not act within its powers or did not correctly construe the law." § 9-745(e)(2); see also Board of County Comm'rs v. Vache, 349 Md. 526, 537, 709 A.2d 155, 160 (1998) (noting that a reviewing court "may reverse the Commission's decision when it is based on an erroneous conception of the law").

The Maryland Workers' Compensation Act provides benefits to employees who suffer an accidental injury that "arises out of and in the course of employment." § 9-101(b)(1); see also § 9-501 (requiring employers to compensate "the covered employee for an accidental personal injury sustained by the covered employee"). The Act essentially is remedial, social legislation designed to protect workers and their families from various hardships that result from employment-related injuries. See Martin, 353 Md. at 398,

726 A.2d at 733. It is a well-settled rule that "[t]he Workmen's Compensation Act should be construed as liberally in favor of injured employees as its provisions will permit in order to effectuate its benevolent purposes." Bethlehem-Sparrows Point Shipyard, Inc. v. Hempfield, 206 Md. 589, 594, 112 A.2d 488, 491 (1955). Any uncertainty in the law should be interpreted in favor of the claimant. See Mayor & City Council of Baltimore v. Cassidy, 338 Md. 88, 97, 656 A.2d 757, 761-62 (1995); Knoche v. Cox, 282 Md. 447, 456, 385 A.2d 1179, 1183-84 (1978) (noting that the Court broadly interprets the term "arises out of").

The statute requires that the claimant satisfy two conditions precedent to bring a claim within the ambit of the Act—both "arises out of" and "in the course of" employment must be proven. See Montgomery County v. Wade, 345 Md. 1, 9, 690 A.2d 990, 994 (1997)

; Pariser Bakery v. Koontz, 239 Md. 586, 589, 212 A.2d 324, 326 (1965). Whether an injury arises out of and in the course of employment is determined by the facts and circumstances of each individual case. Knoche, 282 Md. at 454,

385 A.2d at 1182; Sica, 245 Md. at 611,

227 A.2d at 35-36.

"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. Wade, 345 Md. at 9-10, 690 A.2d at 994. 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).

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 injury arose out of employment. See Mulready, 360 Md. at 66,

756 A.2d at...

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3 books & journal articles
  • Injuries Covered By the Act
    • United States
    • Maryland State Bar Association Workers' Compensation Manual (MSBA) Chapter One The Maryland Workers' Compensation Act
    • Invalid date
    ...600, 620 A.2d 939 (1993); King Waterproofing Co. v. Slovsky, 71 Md. App. 247, 524 A.2d 1245 (1987). [85] Livering v. Richardson's Rest., 374 Md. 566, 823 A.2d 687 (2003); Miller v. Coles, 232 Md. 522, 194 A.2d 614 (1963); Hubbel v. Bd. of Trs. of the Fire & Police Employees' Ret. Sys., 192 ......
  • Injuries Covered By the Act
    • United States
    • Maryland State Bar Association Workers' Compensation Manual (MSBA) (2024 Ed.) Chapter One The Maryland Workers' Compensation Act
    • Invalid date
    ...600, 620 A.2d 939 (1993); King Waterprofing Co. v. Slovsky, 71 Md. App. 247, 524 A.2d 1245 (1987). [85] Livering v. Richardson's Rest., 374 Md. 566, 823 A.2d 687 (2003); Miller v. Coles, 232 Md. 522, 194 A.2d 614 (1963); Hubbel v. Bd. of Trs. of the Fire & Police Employees' Ret. Sys., 192 M......
  • Table of Cases
    • United States
    • Maryland State Bar Association Workers' Compensation Manual (MSBA) Table of Cases
    • Invalid date
    ...586 A.2d 1290 (1991)...................................................................................44 Livering v. Richardson's Rest., 374 Md. 566, 823 A.2d 687 (2003)........................................................................................... 15 Lombardi v. Montgomery Cty......

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