Maryland Cas. Co. v. Lorkovic

Decision Date01 September 1993
Docket NumberNo. 1558,1558
PartiesMARYLAND CASUALTY COMPANY, et al. v. Albert J. LORKOVIC. ,
CourtCourt of Special Appeals of Maryland
Michael A. Brown (Daniel R. Lanier and Miles & Stockbridge, on the brief), Baltimore, for appellants

Peter M. Callegary (Callegary & Callegary, on the brief), Baltimore, for appellee.

Argued before BISHOP, DAVIS and MOTZ, JJ.

DAVIS, Judge.

This is an appeal from a September 10, 1993 order of the Circuit Court for Baltimore County granting summary judgment in favor of appellee, Albert J. Lorkovic. The dispute arose from Lorkovic's claim for workers' compensation, filed September 13, 1990, against his employer, the Maryland Casualty Company (Maryland Casualty), and insurer, the Automobile Insurance Company of Hartford (collectively appellants). The basis of the workers' compensation claim was injuries Lorkovic sustained in a one-car accident while he was driving home from the airport after a business trip. Appellants contested Lorkovic's claim on grounds that his injuries did not arise from or occur in the course of his employment and that his intoxication was the sole cause of his injuries.

On April 17, 1992, a hearing was held before the Workers' Compensation Commission. On June 23, 1992, the commission issued an order denying Lorkovic's claim because he "did not sustain an accidental injury arising out of and in the course of employment ... and the disability of the claimant is not the result of the alleged accidental injury...."

On July 22, 1991, Lorkovic noted an appeal with the Circuit Court for Baltimore County, alleging that the commission "misconstrued the law and facts applicable to [his] case." On May 25, 1993, Lorkovic filed a motion for summary judgment. Because the motion was filed the same day trial was to begin, the circuit court heard oral argument regarding the summary

judgment motion. 1 Appellants submitted a trial memorandum delineating their positions

A complete transcript of the Commission hearing was part of the record before the circuit court. Indeed, Lorkovic's attorney stated, "[W]e'll be basically submitting with the record below." Appellees' counsel, however, requested an opportunity to cross-examine Lorkovic on several points. The court granted this request and Lorkovic testified on direct examination and, subsequently, cross-examination. 2

[641 A.2d 927]

On August 18, 1993, the circuit court issued its opinion, finding that the commission erred in denying Lorkovic's claim and granted summary judgment in favor of Lorkovic. On September 10, 1993, appellants noted an appeal to this Court and presented the following issues
I. Whether the circuit court erred in overturning the workers' compensation commission's ruling that Lorkovic's injury [did not arise] out of and in the course of his employment
II. Whether the circuit court erred in holding that Lorkovic's intoxication was not the sole cause of his injury
FACTS

On August 17, 1990, Lorkovic was injured in a one-car accident when he was driving his Ford Bronco from the Baltimore-Washington International Airport to his home in Glennville, Pennsylvania. Lorkovic was returning from a business trip in California at the time. Lorkovic claims that his injuries are compensable under the Workers' Compensation Act. The nature of this appeal requires a close examination of Lorkovic's employment conditions as well as the facts surrounding his accident.

At the time of the accident, Lorkovic was 39 years old and was an assistant vice president and director of property claims at Maryland Casualty. His responsibilities required him to travel throughout the United States approximately twenty percent of his work time. Lorkovic generally made the decision when circumstances required that he travel, but he was

often required to leave with short notice to investigate sudden property damage or take part in a legal settlement

Although the record is scant regarding Maryland Casualty's policy of reimbursing Lorkovic for his travel expenses, the Commission record manifests that Lorkovic was reimbursed for "[t]he mileage as well as airline and everything was paid for by the company." 3 No mileage expense was permitted, however, for trips between his home and office. He also testified that he was not required to use his own vehicle to get to and from the airport (he could have used any means within reason) but that he did so because there was no public transportation where he lives.

Lorkovic testified that he was suffering from lupus disease and "Raynaud's disease" at the time of his accident. Neither diagnosis is directly supported by medical evidence in the record. Examinations made of Lorkovic after his accident revealed that his lupus diagnosis may be incorrect and that he may actually suffer from a form of arthritis. In [641 A.2d 928] addition, the Maryland Institute for Emergency Medical Systems' discharge summary states that Lorkovic developed pain in his right wrist and left knee--the knee pain was diagnosed as gout. No medical evidence was presented by either party affirmatively connecting Lorkovic's gout to the knee pain he allegedly experienced while on his trip.

Lorkovic states in his brief that the Raynaud's disease "cause[es] occasional sharp constriction of blood vessels, often painfully in the extremities." In addition he quotes DORLAND'S ILLUSTRATED MEDICAL DICTIONARY which describes Raynaud's disease as "intermittent attacks of severe pallor of the fingers or toes and sometimes the ears and nose, brought on characteristically by cold and sometimes emotion." Lorkovic also states that his lupus condition causes pain in the joints. Lorkovic's brief asserts that he takes medication (Darvocet and Prednisone) for lupus and Raynaud's disease. Nonetheless, the record is clear that he only took Darvocet with him on his trip, that he had only a limited supply, and that he had no pills left by the evening prior to his return trip.

Lorkovic testified that he had knee pain during his business trip and as a result he could not sleep at night. He states that he slept "maybe an hour, an hour and a half" per night. He testified that he would elevate his feet and spend the night watching television or reading. Additional pertinent testimony was as follows:

Q [counsel for Lorkovic] You were in these meetings--can you tell me a little bit about your physical condition at the time in 1990.

. . . . .

A [Lorkovic] Generally when I go on a business trip I get there, I will rent an automobile to drive to and from. Prior to leaving I was having problems with my left knee, which was swollen up. I could hardly walk. So, I took some Darvocet with me. I am usually on or had been on Prednisone.

Q How long have you had this condition as being diagnosed as [l]upus?

A Probably since 1984

. . . . .

Q Were you able to sleep while you were on vacation normally?

A No, sir.

Q Not on--

A I was on--

Q On a business trip?

A I would sleep maybe an hour, an hour and a half at night, and--

. . . . .

Q Driving from the airport tell me what happened?

A ... I was driving down that, and I recall rolling the window down to get some air into the car because I was--felt like I was going to fall asleep or sleepy....

. . . . .

Q How much sleep had you had the previous night, if any?

A Probably a couple of hours.

Q Okay. What time did you go to bed?

A I would anticipate somewhere around 3 o'clock in the morning California time.

. . . . .

Q What time did you wake up?

A I believe I had a wake-up call for 5:00 or 6:00.

. . . . .

Q [cross-examination] ... What did you do on the plane? Did you sleep?

A I don't recall. I believe I slept though.

There is no dispute that Lorkovic conducted his employer's business during his trip to California. It is also undisputed that on the evening of Thursday, August 16, 1990, when his business was completed, Lorkovic spent time with a friend that included having "several drinks at one or two bars." Lorkovic did not return to his room until after 2:00 a.m. and, although he does not remember how many drinks he had, Lorkovic admits he was drunk when he got to his hotel room.

Lorkovic had a 7:30 a.m. flight that Friday morning, so he requested a wake-up call. He slept about three hours that night and was apparently not bothered by pain. He boarded the 7:30 a.m. flight back to Baltimore but [641 A.2d 929] does not remember whether he slept or drank alcohol during the flight. At one point in his testimony he did state that he believed he slept on the flight home.

Lorkovic arrived in Baltimore between 3:30 and 4:00 p.m. Baltimore time; thereafter, he secured his car and began the approximately 60-mile drive to his home. The parties have stipulated that no vehicle defect, tire trouble, or defect in the roadway in any way caused or contributed to the happening of the automobile accident, and that the accident occurred as described in the motor vehicle accident report completed by the Baltimore County Police Department. 4 Lorkovic testified that he thought about stopping at his office, which was on the way home, but chose not to because he was wearing jeans. He exited Middletown Road off of Route 83 and recalls that he had the air conditioner on and he decided to open the window to get some air in the car because he "felt like [he] was going to fall asleep...." The next thing he remembers was that his car was off the road and his side mirror hit a fence pole.

Lorkovic was taken to shock trauma at the University of Maryland Hospital. The University of Maryland toxicology examination of Lorkovic, based on specimens taken more than an hour and one-half after the accident, determined that he had a blood alcohol content of 206 mg/dl. The record contains a letter and attachments from Dr. Brent G. Petty which states that given Lorkovic's blood alcohol level, "it is probable that it impaired [his] judgment, coordination and response time...

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