Sargent v. Board of Ed. of Baltimore County

• Decision Date: 03 September 1981
• Docket Number: No. 1605,1605
• Citation: 49 Md.App. 577,433 A.2d 1209
• Parties: Georgia A. SARGENT v. BOARD OF EDUCATION OF BALTIMORE COUNTY et al.
• Court: Court of Special Appeals of Maryland

Page 577

49 Md.App. 577

433 A.2d 1209

Georgia A. SARGENT v. BOARD OF EDUCATION OF BALTIMORE COUNTY et al.

No. 1605.

Court of Special Appeals of Maryland.

Sept. 3, 1981.

Joseph F. Lentz, Jr., Baltimore, with whom were Richard B. Jacobs and Lentz, Hooper, Jacobs & Blevins, P. A., Baltimore, on the brief, for appellant.

R. Roger Drechsler, Baltimore, with whom were Lord, Whip, Coughlan & Green, P. A., Baltimore, on the brief, for appellees.

Argued before MOYLAN, MELVIN and WILNER, JJ.

WILNER, Judge.

The Workmen's Compensation Commission determined that appellant, a custodial employee of the Baltimore County Board of Education, was entitled to compensation by reason of an accidental injury arising out of and in the course of her employment. The Circuit Court for Baltimore County, on appeal by the Board, reversed that determination. We think that the commission was correct and that the court was wrong.

In 1972, appellant became employed by the Board as a Custodian II. That was a classification reserved exclusively for females, whose duties were limited to "light work" such as sweeping classrooms and cleaning restrooms. Male custodians were designated as Custodian I, which carried a higher rate of pay; they were responsible for the heavier tasks of maintenance, including cleaning the school boilers. In 1976, in response to the passage of the Federal Equal Pay Act, the classification distinction between male and female custodians was eliminated and all custodians, regardless of sex, became classified as Custodian I.

The duties of a Custodian I, according to the chief custodian, included "cleaning, cleaning floors, light maintenance, and...boiler cleaning." (Emphasis added.) ¹

The boilers were cleaned once every other year, with the even-numbered boilers being cleaned in the even-numbered years and the odd-numbered boilers being cleaned in the odd-numbered years. Thus, from the custodian's perspective, it was an annual event. From the record, it is apparent that this task was not a pleasant one; the inside of the boiler was dark, illuminated by one hanging light, and very sooty. The boiler was large enough to accommodate three people, with each person entering the boiler through a small opening by lying horizontally on a board which slid through the opening. When cleaning the boiler, the custodians wore masks as a precaution against hazardous breathing conditions. Once inside, the custodians would clean the soot off the interior walls of the boiler with a wire brush.

Appellant's first encounter with boiler cleaning came in 1978. She attempted to enter the boiler but fainted, thereby preventing her participation in the annual event. Immediately thereafter, she was examined by a Health Services doctor who diagnosed her reaction as a manifestation of a "mild and subclinical form of claustrophobia," or, as appellant defined it, her fear of "being confined in a small space." The doctor recommended that appellant "be delegated to other or equivalent duties...but if required to perform the boiler cleaning operation for a period of three to four hours, I can find no absolute contraindication to her performing this task." The record is unclear as to whether appellant's supervisors were aware of that report.

On March 16, 1979, appellant was again scheduled to clean the boiler. Under protest, she agreed to enter the boiler and complete her assignment, believing that her refusal would result in the termination of her employment. Another female custodian and appellant's supervisor entered the boiler before appellant. Upon entering the boiler, appellant screamed, "I can't breathe" and immediately blacked out, awakening several hours later in the Shock Trauma Unit of University Hospital.

As a result of this incident, appellant filed a workmen's compensation claim, requesting recompense for the time she missed as a consequence of her experience. Except for two days, appellant was unable to work from March 17 through April 2 due to her nervous condition, for which a doctor prescribed medication. After a hearing, the Workmen's Compensation Commission awarded temporary total disability from March 17 to April 1, taking into account the intervening two days of work. The award was affirmed on rehearing, at which time appellee appealed to the Circuit Court for Baltimore County. On October 20, 1980, the Court reversed the Commission's finding, holding that appellant's injury was not accidental and therefore not compensable.

Appellant has appealed to this Court where she asks whether she "sustain(ed) an accidental injury arising out of, and in the course of her employment within the meaning of Article 101, § 15." We find that appellant did sustain such an injury and, accordingly, we reverse the holding of the Circuit Court for Baltimore County and reinstate the award granted by the Workmen's Compensation Commission. ²

Article 101, § 15 states that "(e)very employer ... shall pay or provide ... compensation ... for the disability or death of his employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of his employment without regard to fault as a cause of such injury...." (Emphasis added.) Whether an injury sustained on the job is an "accidental" one, within the meaning of § 15 has, of course, been the subject of numerous commentaries (see 1B Larson's Workmen's Compensation Law §§ 37-60.60 (1980); 18 Md.L.Rev. 131 (1958)) and a plethora of court decisions. While the majority of jurisdictions consider an injury to be accidental if it was the unexpected result of the routine performance of the employee's duties, the Maryland Court of Appeals has chosen to adhere to a much narrower view. Under this more restrictive view, in order for an injury sustained during the course of his employment to be "accidental," and thus compensable it must result "from some unusual strain, exertion or condition in the employment." (Emphasis added.) Stancliff v. H. B. Davis Co., 208 Md. 191, 198, 117 A.2d 577, 581 (1955). See Geipe, Inc. v. Collett, 172 Md. 165, 190 A. 836 (1937); Schemmel v. Gatch & Sons, 164 Md. 671, 166 A. 39 (1933); State Roads Commission v. Reynolds, 164 Md. 539, 165 A. 475 (1933); City of Salisbury v. McCoy, 47 Md.App. 488, 424 A.2d 164 (1981); Holbrook v. General Motors Assembly Division, 15 Md.App. 425, 291 A.2d 171 (1972); Yellow Cab Co. v. Bisasky, 11 Md.App. 491, 275 A.2d 193 (1971); Whiting-Turner v. McLaughlin, 11 Md.App. 360, 274 A.2d 390 (1971). See also Courtney v. Board of Trustees of the Maryland State Retirement System, 285 Md. 356, 402 A.2d 885 (1979). We, of course, are not at liberty to depart from that restrictive view, which was established by the Court of Appeals.

There have been no generic definitions of what constitutes an unusual condition of employment or an unusual strain or exertion; those criteria have been defined more or less on a case-by-case basis, with the court, in each instance looking to the nature of the employee's routine duties, the normal conditions of employment, and the usual mental and physical demands placed upon the employee at work. ³

The common denominator, if there is one, is whether, in the course of the activity leading to the accident the employee had departed from the normal routine of his job or whether the job conditions being performed departed from the normality to which the employee was accustomed on a daily basis. In this regard, the Court has made clear that an injury is not accidental, and thus not compensable, if "the injury results from a 'normal incident' of an employee's work." City of Salisbury v. McCoy, supra, 47 Md.App. at 493, 424 A.2d at 166. In other words, if an injury is sustained while the employee is performing daily, routine duties, the injury has not resulted from an unusual condition of employment or an unusual strain or exertion and is, therefore, not accidental. See Rieger v. Washington Suburban Sanitary Commission, 211 Md. 214, 126 A.2d 598 (1956); Kelly-Springfield Co. v. Daniels, 199 Md. 156, 85 A.2d 795 (1952). See also note 3, supra.

In the instant case, the Board maintains that appellant's injury was not accidental since the cleaning of the boilers was within the job description of a Custodian I, and thus amounted to a routine duty which she was under contract to perform. Appellant, on the other hand, contends that, despite her obligation to clean the boilers once a year, that duty was not among those chores she routinely performed. Her normal duties, except for once a year, involved sweeping classrooms and cleaning lavatories, and it is her position that her "re-classification (to Custodian I) ... had, in essence, no direct bearing on her job duties (of light cleaning and sweeping)." Therefore, she concludes, her injury, arising from the cleaning of the boilers, was not a normal incident of her work.

We agree with appellant. In judging whether a particular task is a "normal incident" of the employee's work (or, conversely, whether an injury resulted from an "unusual condition" or "unusual strain or exertion"), we must consider two factors: (1) the nature of the particular task in comparison to the other duties required of the employee, and (2) the relative frequency with which the particular task is required to be performed in comparison to the other incidents of the job. Here, both factors militate against a finding that cleaning the boilers was a "normal incident" of appellant's job or that her injury arose from other than an "unusual" condition or strain.

The cleaning of the boiler was an extreme departure from appellant's routine duties and required much more physical and mental exertion than that to which she was accustomed on a daily basis. The task was considered so onerous, in fact, that...