Montgomery Cnty. v. Maloney, 632, Sept. Term, 2018

CourtCourt of Special Appeals of Maryland
Writing for the CourtKehoe, J.
Citation226 A.3d 824,245 Md.App. 369
Parties MONTGOMERY COUNTY, Maryland v. John T. MALONEY
Docket NumberNo. 632, Sept. Term, 2018,632, Sept. Term, 2018
Decision Date07 April 2020

245 Md.App. 369
226 A.3d 824


No. 632, Sept. Term, 2018

Court of Special Appeals of Maryland.

April 7, 2020

Argued by: Wendy Beth Karpel (Marc P. Hansen, County Attorney, on the brief), Rockville, MD, for Appellant.

Argued by: Kenneth M. Berman (Allyson N. Bloom, on the brief), Gaithersburg, MD, for Appellee.

Panel: Kehoe, Leahy, Sally D. Adkins (Senior Judge, Specially Assigned), JJ.*

Kehoe, J.

In this appeal from a judicial-review action, Montgomery County asks us to reverse a judgment of the Circuit Court for Montgomery County, the Honorable Jeannie E. Cho, presiding, which affirmed a decision of the Workers' Compensation Commission in favor of Montgomery County firefighter John T. Maloney. The County presents two issues, which we have reworded and reordered for purposes of analysis:

1. Did the trial court err in converting the County's on-the-record appeal to an essential trial de novo at Maloney's request?

2. Did the trial court err in finding that Maloney's injury arose "out of" and "in the course of" his employment?

As we explain below, the circuit court did not err on either front. We will therefore affirm its judgment.


In accordance with familiar principles of appellate review, we will state the facts in the light most favorable to Maloney, the prevailing party at trial. See Md. Rule 8-131.

Maloney is a career firefighter for Montgomery County, Maryland. At the time of trial, Maloney, a resident of Sterling, Virginia,

226 A.3d 827

was assigned to work at Fire Station 23 in Rockville. Maloney's typical work schedule required him to work twenty-four-hour shifts, starting and ending at 7 a.m. After each twenty-four-hour shift, he would have forty-eight hours off.

At the end of April 2016, the County hosted a two-day recruiting event at the Montgomery County Public Safety Training Academy, which is located near Gaithersburg, Maryland. The event was scheduled for Friday, April 29, and Saturday, April 30. Maloney was an instructor in the County's Candidate Physical Ability Test (CPAT) program for the recruitment of new firefighters and Battalion Chief Anthony Coleman was Maloney's supervisor in that regard. Coleman asked Maloney to volunteer to explain the CPAT to potential recruits at the event. Maloney agreed. Maloney would be paid

overtime to work the event, which ran from 8 a.m. to 8:30 p.m. on Friday and from 6 a.m. to around 4 p.m. on Saturday.

That Friday, at the end of the first day of the recruitment event, Maloney left the academy at around 8:30 p.m. He went to a grocery store to pick up some food, and then, instead of driving home to Sterling, Virginia, Maloney went to nearby Fire Station 33, in Potomac, Maryland, to sleep for the night. Station 33 was not Maloney's regularly assigned station, and it was not the closest station to the academy. But, according to Maloney, it was "a slower station" where he could get some rest. And staying over at fire stations before or between shifts, Maloney testified to the circuit court, was "a normal customary practice" for County firefighters.

When he arrived at Station 33 at around 9 p.m., Maloney spoke with Captain Daniel Hudson, the station's commander. Hudson knew Maloney was staying overnight at the firehouse because he was supposed to work the recruitment event the following morning at the nearby academy. Maloney did not recall expressly asking the commander about staying at Station 33 that night, but no one told Maloney that he should not or could not do it.

Later that same night, Maloney cleaned up, took a shower, and did some reading. At around 10:30 p.m., Maloney walked into the engine bay. The lights were out, and when Maloney stepped down into the bay, he rolled his ankle. In accordance with procedure, Maloney later woke up Hudson to report his injury. Hudson filled out and filed a First Report of Injury, as required when an employee injures himself at work.

On September 30, 2016, the Workers' Compensation Commission held a hearing to determine whether Maloney's April 29 accidental injury was compensable under the Workers' Compensation Act. Maloney and Captain Michael Glazier, supervisor of the County's Fire and Rescue Operational Medical Services program, testified at the hearing. Maloney's testimony focused mainly on the facts outlined above. He also explained to the Commission that it was "generally permissible" for a County firefighter to shower and sleep at any of the

County's fire stations, regardless of the station to which the firefighter is assigned. Maloney also told the Commission that over the course of the ten years in which he had occasionally slept at other stations, he had never needed special permission to do so. Captain Glazier's testimony was brief but aligned with Maloney's testimony. He told the Commission that there was no prohibition on firefighters sleeping at stations between shifts; that they were not required to get specific permission to do so; and that the practice was "routine"—and even "encouraged" when something might otherwise cause firefighters to arrive late for work.

By order dated October 4, 2016, the Commission found that Maloney's accidental

226 A.3d 828

injury arose out of and in the course of his employment with the County. The Commission ordered the County to pay all causally related medical expenses in accordance with the Commission's Medical Fee Guide.

On November 2, 2016, the County petitioned the Circuit Court for Montgomery County for on-the-record judicial review of the Commission's award. Maloney filed a response to this petition and requested a "de novo judicial review by jury trial," pursuant to Md. Code, § 9-745(d) of the Labor and Employment Article ("Lab. & Empl."). The County moved to strike Maloney's request, but the circuit court denied this motion, as well as the County's subsequent motion to reconsider the order denying the motion to strike that request. Both parties filed motions for summary judgment and oppositions to their respective motions. The circuit court denied the motions.

On April 12, 2018, the trial requested by Maloney commenced before the circuit court. Maloney was the first witness to testify. His testimony focused on the facts and circumstances surrounding his injury, and he more or less repeated what he had said at the Commission's hearing. Maloney was clear that he was staying at Station 33 on the night of his injury for his convenience. "It's a slower station," he said, "and I didn't want to go to a station that was going to keep me up all night."

Battalion Chief Anthony Coleman, one of the County's witnesses, testified before the circuit court about the practice of off-duty firefighters staying overnight at different fire stations. Coleman explained that there was no written policy for making beds available to off-duty firefighters, but that he was familiar with the practice from his days as a station officer. "I used to sleep at stations also," he said. Coleman explained that the practice was "permitted" but that it was not necessarily "encouraged" by the County, except in the case of inclement weather or some other "extreme" circumstances, "twice a year maybe."

Coleman explained that off-duty firefighters who wish to sleep at a station are supposed to speak with the officer in charge and make sure that there was space available. Firefighters do not need any kind of advance written or oral permission, but the officers in charge need to know who is in the station at all times, he said. Sometimes firefighters will call in advance to reserve a bed, but, regardless, firefighters are very rarely turned away. "The majority of the time, everybody's allowed to stay except for very extreme circumstances," Coleman said. "If there's no space, then people sleep on couches.... [I]t's a frat house, so we'll find a way for them to stay."

Coleman also told the court that off-duty officers staying at stations are not allowed to respond to emergency calls, and that Maloney would have had to remain in the station had such a call come in the night he was injured.

Captain Daniel Hudson, the officer in charge at Station 33 on the night Maloney was injured, testified that he knew Maloney was staying at the station that night. Like Coleman, Hudson told the court that having off-duty firefighters stay at the station before a shift was not unusual.

The circuit court also heard testimony from Jeffrey Buddle, president of the local firefighters union. He provided additional context about the County's practice of allowing off-duty firefighters to sleep at stations before and between shifts (emphasis added):

[Buddle:] [F]rom my experience, it's common that firefighters do stay at
226 A.3d 829
fire stations during the overnight hours even when they're not on duty.

I can give a few examples of when that might occur. Certainly if there's an impending inclement weather such as a snow storm, particularly if they're calling for that snow fall to start in the overnight hours, a lot of firefighters will come in the night before.

We also have firefighters that work for Montgomery County, they live just about

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