Le v. Federated Dept. Stores, Inc.

• Decision Date: 01 September 1988
• Citation: 560 A.2d 42,80 Md.App. 89
• Parties: , 4 IER Cases 840 Thach LE v. FEDERATED DEPARTMENT STORES, INC. t/a Bloomingdale's. 1667,
• Court: Court of Special Appeals of Maryland

Page 89

80 Md.App. 89

560 A.2d 42, 4 IER Cases 840

Thach LE v. FEDERATED DEPARTMENT STORES, INC. t/a Bloomingdale's.

1667, Sept. Term, 1988.

Court of Special Appeals of Maryland.

July 3, 1989.

No appearance by appellant's counsel (Court submitted case on brief).

Thomas B. Morrison (Francis X. Quinn, John A. Rego and Anderson & Quinn, on the brief) Rockville, for appellee.

Argued before GILBERT, C.J., and GARRITY and BLOOM, JJ.

GILBERT, Chief Judge.

Do non-physical tortious acts committed against a person by a fellow employee fall within the ambit of the Workers' Compensation Act so as to preclude direct suit against the employer? The Circuit Court for Montgomery County, in response to that question, granted summary judgment in favor of the employer, Federated Department Stores, Inc. t/a Bloomingdale's. For the reasons hereafter stated, we are of an entirely different point of view and reverse that judgment.

Suzanne Spahr, the security director at Bloomingdale's White Flint, Maryland store, recovered a stolen calculator from an attache case belonging to Thach Le, a Bloomingdale's salesperson. Immediately thereafter, Le, allegedly as a result of coercion, signed a statement admitting to the theft. Le's employment with the store was promptly terminated. Le then sued Bloomingdale's for false arrest, defamation, and intentional infliction of emotional distress. There was no claim for any physical injuries.

Bloomingdale's asserted that the Workers' Compensation Act precluded Le from bringing the suit against it for any tortious acts that occurred during his employment. Bloomingdale's maintained that Le could seek redress only through the Worker's Compensation Act.

The circuit court, relying on this Court's holdings in Schatz v. York Steak House Sys., 51 Md.App. 494, 444 A.2d 1045 (1982), and Continental Cas. Co. v. Mirabile, 52 Md.App. 387, 449 A.2d 1176 (1982), agreed that the Act barred a tort action against Bloomingdale's. We think the circuit court misconstrued those cases. Unlike the instant case, Schatz and Mirabile involved physical and psychological injuries for which compensation is provided under the Act. ¹

"Aside from the exceptions" created by the Workers' Compensation Act itself, "the operation of the law is exclusive of all other remedy and liability, as to both employer and employee who come within" its purview. Knoche v. Cox, 282 Md. 447, 453, 385 A.2d 1179 (1978). Section 15 of the Act directs that benefits are payable for disability or death "resulting from an accidental personal injury sustained by the employee arising out of and in the course of his employment." "Injury," "personal injury," "accidental injury," and "accidental personal injury" are defined by the statute as "accidental injuries arising out of and in the course of employment." Md.Ann.Code art. 101, § 67.

The Court of Appeals, in interpreting the term "accidental injury," has held that, insofar as the Workers' Compensation Law is concerned, "accidental injury" means physical injury to the person caused by some unusual condition or occurrence in the employment. Baltimore & Ohio R.R. Co. v. Zapf, 192 Md. 403, 410, 64 A.2d 139 (1948); Foble v. Knefely, 176 Md. 474, 486-87, 6 A.2d 48 (1939); White v. Safe Dep. & Trust Co., 140 Md. 593, 599, 118 A. 77 (1922).

A "compensable injury may be found whenever an accidental physiological change is found to have arisen out of and in the course of employment." R. Gilbert & R. Humphreys, Jr., Maryland Workers' Compensation Handbook § 5.2 (1988); Sargent v. Board of Educ., Balto. Co., 49 Md.App. 577, 433 A.2d 1209 (1981). Workers' compensation benefits are not payable without proof of a personal injury. R. Gilbert & R. Humphreys, supra at 85. Ergo, "the absence of a physiological change or physical harm or damage should preclude a finding that an injury occurred." Id.

Neither the Court of Appeals nor this Court has heretofore addressed the question of whether non-physical injury torts are within the ambit of the Act, but courts in other jurisdictions have held that tort actions are not barred by Workers' Compensation Acts when the essence of the injury is non-physical. See e.g. McGee v. McNally, 119 Cal.App.3d 891, 174 Cal.Rptr. 253 (1981); Vigil v. Safeway Stores, Inc., 555 F.Supp. 1049 (Dist.Ct.Colo.1983); Hogan v. Forsyth Country Club Co., 79 N.C.App. 483, 340 S.E.2d 116 (1986). All three of those foreign cases cite Professor Larson's exhaustive treatise, The Law of Workmen's Compensation, 2A, § 68.34(a), as authority for their holding. Larson there comments:

"If the essence of the tort, in law, is non-physical, and if the injuries are of the usual non-physical sort, with physical injury being at most added to the list of injuries as a makeweight, the suit should not be barred. But if the essence of the action is recovery for physical injury or death, the action should be barred even if it can be cast in the form of a normally non-physical...