Schwan Food v. Frederick

• Court: Court of Special Appeals of Maryland
• Decided: June 27, 2019
• Docket: 1289/17
• Status: Published

Opinion

Schwan Food Co. v. Ryan Frederick, No. 1289, Sept. Term, 2017, Opinion by Leahy, J.

Workers’ Compensation > Appeals > Presumptions and Burden of Showing Error

When the employer prevails before the Commission, and the claimant elects an appeal under what is essentially a de novo trial pursuant to § 9-745(d), the parties retain their initial burdens of proof and persuasion. Baltimore Cty. v. Kelly, 391 Md. 64, 75 (2006). However, when the employer appeals a decision of the Commission decision in favor of the claimant and elects a jury trial under § 9-745(d), “the burden of proof, which was borne by the claimant before the Commission, switches to the employer before the circuit court.” Id. Accordingly, “[t]he decision of the Commission is, ipso facto, the claimant’s prima facie case.” Id.

Workers’ Compensation > Appeals > Presumptions and Burden of Showing Error

The burden before the trier of fact in the circuit court is “upon the appellant to overcome the presumption that the decision of the Commission is prima facie correct,” which is why the proceeding is qualified as an “essentially de novo trial.” Baltimore Cty. v. Kelly, 391 Md. 64, 76 (2006) (internal quotations omitted).

Workers’ Compensation > Arising Out of and In the Course of Employment > Questions of Fact and Law

Typically, whether an injury arises out of and in the course of employment is a mixed question of law and fact. However, “when the facts have been ascertained and agreed upon by the parties, or are undisputed, and there is no dispute as to the inferences to be drawn from the facts, the question becomes one of law and may be decided by the court.” Harrison v. Cent. Constr. Corp., 135 Md. 170, 878 (1919).

Workers’ Compensation > Arising Out of and In the Course of Employment

Whether an injury arises out of and in the course of employment is informed by the “facts and circumstances of each individual case.” Livering v. Richardson’s Restaurant, 374 Md. 566, 574 (2003).

Workers’ Compensation > In the Course of Employment in General

An injury occurs in the course of employment, within the meaning of LE § 9-101(b)(1), “when it occurs during the period of employment at a place where the employee reasonably may be in performance of his or her duties and while fulfilling those duties or engaged in something incident thereto.” Montgomery Cty. v. Wade, 345 Md. 1, 11 (1997) (citations omitted). Workers’ Compensation > In the Course of Employment in General

As Professor Arthur Larson has explained, the “[i]n the course of” employment requirement “tests work-connection as to time, place and activity[.]” 2 Arthur Larson, et al., Larson’s Workers’ Compensation Law § 12 at 12-1 (Matthew Bender rev. ed. 2018).

Workers’ Compensation > In the Course of Employment > Employee’s Home as a Work Site in General

Whether an employee’s home qualifies as a work site under Maryland workers’ compensation law is established by three indicia: (1) the quantity and regularity of work performed at home; (2) the presence of work equipment at home; and (3) the special circumstances of the employment rendering it necessary, and not merely personally convenient, to work at home. 2 Arthur Larson, et al., Larson’s Workers’ Compensation Law § 16.10[2] at 16-24 (Matthew Bender rev. ed. 2018). Under the last (third) prong, the fact-finder should also consider whether the employer acquiesced to the employee’s use of his or her home as a work site, or reasonably should have known the employee was regularly using the home as a work site. Cf. Livering v. Richardson’s Restaurant, 374 Md. 566, 580 (2003); see also Roberts v. Montgomery Cty., 436 Md. 591, 606-07 (2014).

Workers’ Compensation > Injuries While Traveling Between Work-Related Sites

An employee’s travel between work-related sites may be deemed incidental to the employment, in which case the going and coming rule would not apply to bar compensation for injuries sustained during the travel. Roberts v. Montgomery Cty., 436 Md. 591, 607-08 (2014).

Workers’ Compensation > In the Course of Employment > Injuries While Leaving Employee’s Home to Travel to Another Work-Related Site

Injuries sustained by the employee en route from the employee’s home work site to another work-related site may arise out of and in the course of employment. Cf. Roberts v. Montgomery Cty., 436 Md. 591, 607 (2014) (explaining that when an employee is injured while traveling between work-related sites, such travel is incidental to employment and an injury sustained during such travel is compensable).

Workers’ Compensation > In the Course of Employment > Injuries Before Leaving Employee’s Home

When an employee’s home does not qualify as a work site and the injury occurs while performing an activity unrelated to employment and “before [a] journey [between the home and work] has begun[,]” the injury falls outside the course of employment. Prince George’s Cty. v. Proctor, 228 Md. App. 579, 589, 591 (2016). Circuit Court for Baltimore County Case No. 03-C-16-005618

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1289

September Term, 2017

SCHWAN FOOD CO., ET AL.

v.

RYAN FREDERICK

Leahy, Reed, Salmon, James P. (Senior Judge, Specially Assigned),

JJ.

Opinion by Leahy, J.

Filed: June 27, 2019

Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.

2019-06-27 11:01-04:00

Suzanne C. Johnson, Clerk “So be sure when you step, Step with care and great tact. And remember that life’s A Great Balancing Act.”

Dr. Seuss “Oh, The Places You'll Go!” (1990)

Technological innovation enables citizens of Maryland to work for companies

located anywhere in the world, at any time, from any place in the State.1 This modern

expediency drives the primary issue before us: whether an injury that an employee sustains

while leaving his or her home to travel to a work-related site can be deemed to have

“arise[n] out of and in the course of employment.”2 In examining this issue, we must

address a matter of first impression under Maryland workers’ compensation law; namely,

whether an employee’s home can qualify as a work place or work site.

Appellee, Ryan Frederick, worked as a customer service representative for

1 Dawn R. Swink, Telecommuter Law: A New Frontier in Legal Liability, 38 Am. Bus. L. J. 857, 857-61 (2001) (exploring the growing presence of “home-based employees” or “home office workers” due to advances in information technology that are shifting the focus away from centralized workplaces to decentralized workplaces, and the resultant effect on employer liability); see also Kenneth G. Dau-Schmidt, The Impact of Emerging Information Technologies on the Employment Relationship: New Gigs for Labor & Employment Law, 2017 U. Chi. Legal F. 63, 63, 69-73 (2017) (exploring generally the legal consequences of how information technology has altered aspects of the employment relationship, including the ability to allow “greater disaggregation of the work process in space and time” such that employees can undertake production from geographically disparate workplaces throughout the United States or abroad).

Maryland Code (1991, 2016 Repl. Vol.), Labor and Employment Article (“LE”), 2

§ 9-101(b)(1). appellant, Schwan Food Company (“Schwan”),3 which is based in Minnesota with no local

offices in Maryland. His job entailed traveling in his personal car to various grocery stores

throughout Maryland to meet Schwan’s delivery drivers and receive inventory deliveries

for each of his accounts. On the morning of January 28, 2016, while still at home, Mr.

Frederick used his employer-provided handheld computer to download his route for the

day. His plan was to drop his son off at daycare on the way to his first account, the Walmart

in Ellicott City. Unfortunately, he slipped on black ice on the sidewalk by his car in front

of his home and suffered injury to his right leg.

Mr. Frederick filed a claim with the Workers’ Compensation Commission

(“WCC”). Schwan maintained that Mr. Frederick’s injury was not compensable because

he was on his way to drop off his son—a personal errand. The WCC issued a summary

decision denying Mr. Frederick benefits after finding that “the claimant did not sustain an

accidental injury arising out of and in the course of employment[.]” Mr. Frederick

petitioned for judicial review in the Circuit Court for Baltimore County on May 24, 2016,

and requested a jury trial.

Mr. Frederick’s case proceeded to trial before a jury on July 25, 2017. At the close

of Mr. Frederick’s case, the circuit court denied Schwan’s motion for judgment and, at the

close of all evidence,granted Mr. Frederick’s motion for judgment. The court concluded

that Mr. Frederick had been working from his “home office” before he set out to travel to

his first account, and consequently, the injury that he sustained “arose out of and in the

3 The other appellant is Schwan’s insurer, the New Hampshire Insurance Company. 2 course of his employment.”

Schwan timely appealed to this Court from the order reversing the WCC’s decision.

Schwan challenges the circuit court’s determination that Mr. Frederick’s injuries arose out

of and in the course of his employment with Schwan.

We hold that injuries sustained by the employee en route from the employee’s home

work site to another work-related site may arise out of and in the course of employment.

As detailed in our discussion, in order to determine whether a home qualifies as a work

site, we adopt a three-part test rooted in eminent principles of workers’ compensation law.

In this case, we conclude that material facts remain in dispute as to whether Mr. Frederick’s

home qualified as a home work site and whether he had commenced his work day and was

fulfilling his work duties, or something incident thereto, at the time of his injury. Because

it was for the jury to resolve these predicate factual issues, the circuit court erred in ruling,

as a matter of law, that Mr. Frederick’s injury arose out of and in the course of employment.

Accordingly, we remand for a new trial.

BACKGROUND

A. The Petitioner’s Case

Mr. Frederick was the only witness to testify at his trial in the circuit court. He

explained that he was employed with Schwan for about four years4 and described his job

duties as a customer service representative:

I would travel [] from store to store, meet with decision[] making personnel in the store, store managers, department managers, decide display aspects, like the end caps in the store where [] they have stuff at the end of the aisles

4 Mr. Frederick testified that he is no longer employed with Schwan. 3 . . . on display, decide sales, [ascertain the] space[s] they were going to give me in the shelves. Decide, you know, quantity and inventory that the store may have wanted. Also helping replenish[] the shelves [] to make sure the shelves stayed full for customers to come in and purchase product.

According to Mr. Frederick, he could not have held his position as a customer service

representative without having his own car to travel to each of his accounts.5 Schwan

reimbursed him for mileage incurred while traveling between his first and last accounts

through a “fuel card that was pre-loaded at the beginning of each week” with funds to cover

his travel expenses. Mr. Frederick admitted that Schwan did not normally reimburse him

for mileage he incurred driving to his first account—although he did claim this mileage for

tax purposes.

The “Home Office”

Mr. Frederick testified that his office was at his home in Mount Washington where

he had a computer and printer set up on his dining room table for work. Although Schwan

did not pay for the computer, printer, or internet at his house, Mr. Frederick did receive an

employee discount on his internet service pursuant to an agreement between the internet

service provider and Schwan. Mr. Frederick asserted that Schwan was aware that he

received this discount. Schwan also provided him with the Intermac—a small handheld

computer that he used to complete work-related tasks. The Intermac required a WiFi

connection, so he would use his Intermac at home where he had WiFi to complete his daily

downloads and uploads of sales information. Mr. Frederick used the Intermac to enter his

5 For the sake of consistency, we shall refer to individual grocery stores as separate “accounts.” 4 reimbursable mileage for each day as well. He conceded that he could run the downloads

on his Intermac after he left his home so long as he could connect to WiFi; however, he

was unsure whether the Walmart in Ellicott City, or any of his accounts, had WiFi.

Additionally, Schwan mailed certain work materials, such as big display posters and

coupons for grocery stores, to Mr. Frederick’s home about “once or twice a week.” He

kept all of these work materials at his home because there was nowhere else he could keep

them; he was prohibited from storing the materials at the grocery stores, and many of the

materials were “too large to even store in [his] car and still be able to use [his] car on a

daily basis.”

Mr. Frederick’s Typical Work day

At trial Mr. Frederick described his typical work day around the time of his accident.

He did not have set working hours; however, his typical work day began in the morning at

his home “as soon as the phone started ringing really.” He stated, “[p]eople would start

calling you at [] 4 a.m. because that’s when they were there and . . . available.” Mr.

Frederick related that his daily routine back in January 2016

. . . would start in the morning. . . . Before I left my home I would do my download in my hand held. That kind of gave me an idea of what stores you had to go to that day. Gave me an idea of where the truck drivers were going to be going because we did not deliver our own product. We had to coordinate with truck drivers in the morning before we went out [in order] to figure out [] which other customer service route stores [the drivers] had on hand . . . so we knew where we were going and as to where the truck was going so you weren’t kind of running around trying to chase a delivery truck.

Mr. Frederick would then use the information from the downloads to contact the driver and

other customer service representatives who had deliveries on that same truck to determine

5 the order of the deliveries. He would complete these communications from his home

before leaving to drive to his first account.

When asked what other “work activities” he conducted at his home, Mr. Frederick

replied:

[F]rom home, my day would actually start much earlier as a lot of the department managers [who work during] the receiving hours [at] grocery stores [work] overnight . . . so there were a lot of times where . . . you made contact with these people before you left your home [] to decide if they were going to give you display space, or, if they were going to give you that, you had to coordinate that with them before they left the store in case you didn’t make it to the store in time[.]

Once these preliminary communications were completed, Mr. Frederick would leave his

home and travel from store to store using his personal vehicle to carry out his other work

duties. He would typically hold business meetings with Schwan employees in grocery

store parking lots or, for “large meetings where everyone was to be involved,” Schwan

would rent out a room in a public library or hotel.

The Morning of the Accident

On January 28, 2016, Mr. Frederick related that the weather was “crappy” and that

Maryland had just experienced one of the biggest snow storms in a long time. He testified:

That day started, I don’t remember exactly what time. I got up, I did my download. I get in contact with my driver[] to kind of figure out where he was going to be. Because of inclement weather the drivers tend to start a little bit later to give the road some time to get cleared up so they’re not driving the big trucks out on the roads with icy conditions. I had been in contact with my drivers. I ha[d] done some e-mails. That’s . . . about it that morning.

He left his home around 9:00 a.m. to go to his first account, the Walmart in Ellicott City.

Mr. Frederick testified that he had his work materials in his hands and his five-year-old son

6 walking beside him, “[o]ff to the left somewhere.” He explained that he planned to drop

off his son at daycare on his way to the Walmart.6

Mr. Frederick explained that dropping off his son at daycare was not his primary

objective when he left the house, and that if he were not going to work, his son would not

have been going to daycare. The daycare was a “block and a half” off-route from his house

to the Walmart.

Ultimately, Mr. Frederick “never made it to the car.” He fell on black ice that was

on the walkway to his car outside of his house and suffered a fracture to his right leg, which,

the record reflects, required open reduction internal fixation and a subsequent surgery.

B. Motion for Judgment

At the close of Mr. Frederick’s case, Schwan moved for a motion for judgment.

Schwan argued that “it’s clearly uncontradicted that [Mr. Frederick] was on his way to his

son’s daycare at the time that this injury occurred[.]” When the trial judge asked why this

made a difference, Schwan pressed that Mr. Frederick’s intent to drive his child to daycare

established that Mr. Frederick was not in the course of his employment at that time.

Further, Schwan continued, even if the court were to find that he was in the course of his

employment, Mr. Frederick “deviated once he left the threshold of his house and continued

to his son’s daycare and any injuries during that trip . . . don’t arise out of and in the course

of his employment[.]” Schwan had to concede that obviously, regardless of whether Mr.

Frederick had to take his child to daycare, it anticipated Mr. Frederick would be walking

6 Mr. Frederick noted there was no specific time by which his son needed to be at the daycare. 7 out to his car to go to his first account that morning. Schwan clarified, however, that it was

not arguing that the “going and coming rule” precluded Mr. Frederick’s recovery of

benefits.

Counsel for Mr. Frederick responded that the injury occurred “during a time and

place where [Schwan] would expect him to be” because his workday began in his home

when he completed his downloads and spoke with his drivers. Counsel argued that the

injury was also compensable under the dual-purpose doctrine because “the daycare is two-

thirds of the way to where his first stop is, you can’t argue that . . . two-thirds of the trip is

not providing a benefit to the employer.”

After hearing Schwan’s rebuttal, the trial judge denied Schwan’s motion for

judgment. Following a brief recess, Schwan rested its case and both parties moved for

judgment. The court, again, denied Schwan’s motion for judgment but granted Mr.

Frederick’s motion for judgment as a matter of law, ruling that his injury arose out of and

in the course of his employment. The court explained:

In this case here the employer effectively requires the employee to be where the accident occurred because it did not have an office in Maryland making it necessary for the employee to establish an office of some type to perform work for his employer. *** Although Mr. Frederick did testify that he was going to make a stop at his child’s daycare, he did have to leave his home office to [] go get to a customer’s location. And this was [] not only a location where the employee may be working for the employer, [] effectively it happened at the place where he was working for the employer because he had established a presence at his home office. And also going to the customer’s location is not only consistent with his work, it is essential based on the nature of Mr. Frederick’s job that he provided testimony regarding.

The trial judge also ruled, in the alternative,

8 that the exceptions to the going and coming rule, that . . . at least two of them apply – that the employee’s mode of transportation was required by the employer and that the employee was injured during a trip that served both a personal and business purpose.

The court entered an order on August 2, 2017, reversing the decision of the WCC

and remanding the matter for entry of an order stating that Mr. Frederick sustained an

accidental injury arising out of and in the course of employment. Schwan thereafter filed

its timely appeal to this Court on August 17, 2017.

I.

STANDARD OF REVIEW

In this appeal, we examine whether the circuit court erred in granting judgment in

favor of Mr. Frederick and ruling, as a matter of law, that his injury arose out of and in the

course of his employment. In determining whether the circuit court properly granted

judgment in this case, we consider the idiosyncratic procedure for “appeals” to the circuit

court from decisions of the WCC. See Baltimore Cty. v. Kelly, 391 Md. 64, 74 (2006).

The Court of Appeals in Kelly summarized the methods of appeal available to a party

aggrieved by a decision of the WCC:

A party dissatisfied by the action of the Commission may seek review in a circuit court by either proceeding on the record made before the Commission (much like judicial review of the final action of most state administrative agencies) or receive a new evidentiary hearing and decision before a jury (much like an original civil complaint brought in a circuit court).

Id. at 67. The latter method of appeal, found in Maryland Code (1991, 2016 Repl. Vol.),

Labor and Employment Article (“LE”), § 9-745(d), affords “an ‘essentially’ de novo trial.”

Id. at 74. Under either method of appeal, however, “the decision of the Commission is

9 presumed to be prima facie correct” and “the party challenging the decision has the burden

of proof.” LE § 9-745(b). Therefore, “a different calculus emerges” with regard to the

burden of production before the circuit court depending on whether the employer or the

claimant chooses to appeal the decision of the WCC. When, like the instant case, the

employer prevails before the Commission, and the claimant elects an appeal under what is

essentially a de novo trial pursuant to § 9-745(d), the parties retain their initial burdens of

proof and persuasion. Kelly, 391 Md. at 75. However, when, unlike in this case, the

employer appeals a decision of the Commission in favor of the claimant and elects a jury

trial under § 9-745(d), “the burden of proof, which was borne by the claimant before the

Commission, switches to the employer before the circuit court.” Id. “The decision of the

Commission is, ipso facto, the claimant’s prima facie case.” Id. (internal citations omitted).

The burden before the trier of fact in the circuit court is “upon the appellant to overcome

the presumption that the decision of the Commission is prima facie correct,” which is why

the proceeding is qualified as an “essentially de novo trial.” Id. at 76 (internal quotations

omitted).

In an appeal from a circuit court’s ruling on a motion for judgment, we conduct “the

same analysis that a trial court should make when considering the motion for judgment.”

D.C. v. Singleton, 425 Md. 398, 406-07 (2012) (citation omitted). In doing so, we consider

“the evidence and reasonable inferences drawn from the evidence in the light most

favorable to the non-moving party.” Beall v. Holloway-Johnson, 446 Md. 48, 63 (2016)

(citation omitted) (quoting Thomas v. Panco Mgmt. of Md., LLC, 423 Md. 387, 393

(2011)). The circuit court may grant a motion for judgment when “the evidence is not such

10 as to generate a jury question, i.e., permits but one conclusion[.]” Address v. Millstone, 208

Md. App. 62, 80 (2012) (citation omitted). More specifically, in the context of a worker’s

compensation case, we follow the general principle that:

[t]he question as to whether an injury arose out of or in the course of employment is ordinarily, like negligence or want of probable cause, a mixed question of law and fact, but when the facts have been ascertained and agreed upon by the parties, or are undisputed, and there is no dispute as to the inferences to be drawn from the facts, the question becomes one of law and may be decided by the court.

Harrison v. Cent. Constr. Corp., 135 Md. 170, 878 (1919); Atlantic Refining Co. v.

Forrester, 180 Md. 517, 527-29 (1942). Accordingly, “if there is any evidence, no matter

how slight, that is legally sufficient to generate a jury question, the case must be submitted

to the jury for its consideration.” Marrick Homes LLC v. Rutkowski, 232 Md. App. 689,

698 (2017) (emphasis added) (internal quotation marks omitted).7 In sum, “[w]e review

the trial court’s grant of [the] [m]otion for [j]udgment de novo, considering the evidence

and reasonable inferences drawn from the evidence in the light most favorable” to the

employer in this case, Gales v. Sunoco Inc., 440 Md. 358, 363 (2014) (internal quotations

omitted), and we will remand if we determine that the evidence generated a question for

the jury, Marrick Homes LLC, 232 Md. App. at 698.

II.

DISCUSSION

Schwan’s primary contention on appeal is that Mr. Frederick’s injury did not, as a

7 In Marrick Homes LLC, this Court recognized that “[w]e review the grant of a motion for judgment under the same standard as we review grants of motions for judgment notwithstanding the verdict.” 232 Md. App. at 697 (citation omitted). 11 matter of law, occur in the course of his employment. First, Schwan argues that Mr.

Frederick did not commence his work day at his home and that he was “not performing or

discharging any actual duty related to his employment” at the time of the injury because he

left his home with the intent to take his son to daycare before traveling to his first account.

According to Schwan, Mr. Frederick’s application of the law “to a salesperson who offices

from home . . . creates a time and space conundrum, in which [Schwan] is deemed liable

for any potential injuries [Mr. Frederick] may endure, despite having no definitive

awareness of where [Mr. Frederick] is or what activities he is participating in prior to arrival

at the first [account].” Schwan characterizes Mr. Frederick’s anticipated travel as a

personal deviation, arguing that the fact that Mr. Frederick left his home with the intent to

“eventually” go to a work-related site did not bring the trip within the scope of his

employment. For this same reason, Schwan asserts that the dual-purpose doctrine does not

apply to bring the injury within the course of employment. And, Schwan contends, because

Mr. Frederick was not in the course of his employment, his injury also did not arise out of

his employment and fails the positional-risk test.

Mr. Frederick responds that he “was injured during a time frame and in a location

that his employer could expect him to be in the performance of his job duties.” Specifically,

he avers that his work day commenced when he conducted some work activities at his

home because it was his “base of work operations.” Moreover, he claims his work day

extended through the time of the injury because he left his home with the purpose of

carrying out his work obligation to arrive at his first account. Mr. Frederick further argues

that although the purpose of his travel was work-related, even if the travel served some

12 personal purpose because it was “convenient” to take his son to daycare, his injury would

still be compensable under the dual-purpose doctrine. Regarding the positional-risk test,

Mr. Frederick maintains that his injury was compensable because, but for his work

obligation to travel to his first account, he would not have been in the location where he

was injured.

This case involves a constellation of factual determinations in the analysis of

whether Mr. Frederick’s injury occurred “in the course of” his employment. Namely,

whether, under the terms and conditions of his employment and the totality of the

circumstances, Mr. Frederick’s home was a place where he could reasonably have been in

the performance of his work duties and whether he had commenced his work day and was

fulfilling his work duties, or something incident thereto, at the time he left to go to his first

account. First, we review the applicable legal framework.

A. The Maryland Workers’ Compensation Act

Over a century ago, the Maryland Workers’ Compensation Act (“the Act”) became

law. 1914 Md. Laws, ch. 800. Today the Act is codified at LE §§ 9-101 through 9-1201,8

and instructs that “[t]his title shall be construed to carry out its general purpose.” LE § 9-

102(a).9 The Court of Appeals has interpreted the Act’s purpose to be “to protect workers

8 During the 1991 legislative session, the General Assembly introduced H.B. 1, ch. 8, Laws of 1991, for the purpose of adding the “Labor and Employment Article” to the Code of Maryland and repealing and recodifying, inter alia, the laws of Maryland pertaining to workers’ compensation. Specifically, H.B. 1 repealed and recodified Article 101 as Title 9 of the Labor and Employment Article. 9 The stated purpose of the Act in 1914 was to “promote the general welfare of this State by providing compulsory insurance against accident or death of workmen engaged in 13 and their families through compensation for a loss of earning capacity due to workers’

injuries that arise out of and in the course of employment.” Calvo v. Montgomery Cty.,

459 Md. 315, 324 (2018) (citation omitted). The Act is remedial in nature and, therefore,

“is to be construed as liberally in favor of injured employees as its provisions will permit

in order to effectuate its benevolent purposes as remedial social legislation.” 10 Id. (quoting

Alitalia Linee Aeree Italiane v. Tornillo, 329 Md. 40, 48 (1993)).

Under the Act, “each employer of a covered employee shall provide compensation

in accordance with this title to[] the covered employee for an accidental personal injury

sustained by the covered employee[.]” LE § 9-501(a). An “accidental personal injury” is

defined as one which “arises out of and in the course of employment[.]” LE § 9-101(b)(1).11

extra-hazardous employments in this State, and providing for the form, kind and method of such insurance and the incidents thereto[.]” 1914 Md. Laws, ch. 800, Preamble. 10 Section 9-102(b) clarifies that: “The rule that a statute in derogation of the common law is to be strictly construed does not apply to this title.” LE § 9-102(b). See Montgomery Cty. v. Robinson, 435 Md. 62, 83 (2013) (explaining that because “we have repeatedly emphasized the Act’s remedial nature and that it ‘should be construed as liberally in favor of the injured employees as its provisions will permit in order to effectuate its benevolent purposes[,]’ we, therefore, ‘do not apply the canon of construction that a statute in derogation of the common law should be strictly construed.’”). 11 The long-standing requirements for establishing an “accidental personal injury” have remained substantively unchanged since the Act’s inception in 1914. The Court of Appeals, in reviewing the legislative bill file on H.B. 1 and H.B. 692 (the companion bill to H.B. 1), has explained that the goal of the Act’s recodification was “to rewrite the law in a more clear and concise manner without making any substantive changes. . . . Thus, while the language of a revision differs from the derivative statute, the legislative intent does not change.” Belcher v. T. Rowe Price Found., Inc., 329 Md. 709, 743 (1993) (internal quotations omitted). Since 1992, there have been no amendments to LE § 9-501, and § 9-101 has been amended only twice without any substantive change to the “arising out of and in the course of” requirements for purposes of sustaining a compensable accidental personal injury. The 2009 amendments focused primarily on the total amount of death benefits payable to 14 Thus, “[t]he 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.” Livering v. Richardson’s Restaurant, 374 Md. 566, 574 (2003) (emphasis

added) (citations omitted). Whether an injury arises out of and in the course of employment

is informed by the “facts and circumstances of each individual case.” Id.

1. “Arises out of employment”

The “arises out of” prong of the statute “refers to the causal connection between the

employment and the injury.” Id. at 574 (citing Montgomery Cty. v. Wade, 345 Md. 1, 9-

10 (1997)); see also Montgomery Cty. v. Smith, 144 Md. App. 548, 556 (2002) (“Arising

out of employment ‘refers to the cause or origin of the accident.’”) (citation omitted). An

injury “arises out of” employment “‘when there is a causal connection between the

employment and the injury such that the injury ‘results from some obligation, condition,

or incident of employment.’” Prince George’s Cty. v. Proctor, 228 Md. App. 579, 588

(2016) (quoting Livering, 374 Md. at 574). The Court of Appeals has instructed that “[t]he

term ‘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. Univ. Research Corp., 360 Md. 51, 57

partially dependent individuals. S.B. 863, ch. 616, Laws of 2009. During the most recent session, the General Assembly passed S.B. 94, ch. 5, Laws of 2019, thereby amending the name of the Consumer Price Index used to calculate compensation awards for permanent total disability benefits. On March 27, 2019, the bill was enacted into law under Article II, § 17(b) of the Maryland Constitution, and will go into effect on July 1, 2019. 15 (2000) (citation omitted).

The Court of Appeals in Mulready first adopted the test currently used to determine

“arising out of” causation: the positional-risk test. Id. at 59. The test originally sought to

determine “arising out of” causation in cases involving traveling employees. The Court

pronounced the positional-risk test as:

Absent facts indicating a distinct departure by the employee on a personal errand that would not be in the contemplation of the parties, an injury to a traveling employee generally is compensable so long as it occurred as a result of an activity reasonably incidental to the travel that the employer required.

Id. at 66.

Several years later, in Livering, the Court of Appeals considered whether an

accidental injury suffered by an employee on her day off, but while checking her work

schedule at her place of employment, was compensable under the Act. 374 Md. at 571.

In reaching its decision, the Court refined the positional-risk test to focus the inquiry on

whether the injury would have been sustained “but for” the fact that the conditions and

obligations of employment placed the employee where the injury occurred. Id. at 575

(citation omitted). The Court determined that a necessary component of Ms. Livering’s

employment was to check her schedule, and that her employer knew that she and other

employees visited the restaurant to check their schedules and acquiesced in the custom. Id.

at 580. Therefore, “[c]hecking her scheduling was [] incident to her employment.” Id.

Moreover, because she was injured while checking her schedule, the Court further

concluded that Ms. Livering “would not have been injured but for the fact that she visited

the restaurant to confirm her schedule.” Id. Consequently, the positional-risk test is now

16 applied in circumstances not only involving an employee on work-related overnight travel,

but also in situations “where an employee is injured while engaging in activities incidental

to employment.” Roberts v. Montgomery Cty., 436 Md. 591, 605 (2014).

2. “In the course of employment”

Distinct from the “arising out of” requirement,12 the “in the course of” requirement

of LE § 9-101(b)(1) considers the “the time, place, and circumstances of the accident in

relation to the employment.” Wade, 345 Md. at 11. As Professor Arthur Larson has

explained, the “[i]n the course of” employment requirement “tests work-connection as to

time, place and activity[.]” 2 Arthur Larson, et al., Larson’s Workers’ Compensation Law

§12 at 12-1 (Matthew Bender rev. ed. 2018). Assessing whether an injury occurred in the

course of employment is a fact-specific inquiry. State v. Okafor, 225 Md. App. 279, 286

(2015) (citation omitted). Stated succinctly, “[a]n injury is in the course of employment

when it occurs during the period of employment at a place where the employee reasonably

may be in performance of his or her duties and while fulfilling those duties or engaged in

something incident thereto.” Wade, 345 Md. at 11 (citations omitted). The Court of

Appeals’s explanation in Wade enumerates three integral components of an “in the course

of” analysis:

An analysis of the occupational correlation of these factors “demands that the injury be shown to have arisen within the time and space boundaries of the employment, and in the course of an activity whose purpose is related to the employment.” Questions pertinent to this inquiry are: 1) when the

12 We observe from the collection of published opinions on point that the facts relevant to these two distinct statutory requirements often overlap. See Livering 374 Md. at 580 (“Because many of the facts relevant to analyzing ‘arising out of’ and ‘in the course of’ overlap in this particular case, we shall consider the two tests together.”) 17 employment began and ended, 2) whether the continuity of the period was broken, and 3) how far the employee placed himself or herself outside the employment during that period. . . . If the injury occurred at a point where the employee was within the range of dangers associated with the employment, it is held compensable under the Act.

Id. at 11-12 (citations omitted) (emphasis added). It has also been established, however,

that the phrase “in the course of employment” is not limited to “the actual manipulation of

the tools of the work, nor to the exact hours of work.” Wade, 345 Md. at 12 n.6 (citation

The going and coming rule commands that injuries are not considered to have

occurred in the course of employment if sustained while an employee is going to or from

his or her place of work. Calvo, 459 Md. at 329 (citations omitted); Roberts, 436 Md. at

606; Garrity v. Injured Workers’ Ins. Fund, 203 Md. App. 285, 293 (2012) (citations

omitted). “With its genesis in the practical need of drawing a ‘line’ delineating an

employee’s ‘scope of employment,’” Santa Rosa Junior College v. Workers’ Comp.

Appeals Bd., 708 P.2d 673, 677 (Cal. 1985), the going and coming rule addresses the time

and space boundaries of the employment. Cf. Reisinger-Siehler Co. v. Perry, 165 Md. 191,

52 (1933) (“While service on regular hours at a stated place generally begins at that place,

there is always room for agreement by which the service may be taken to begin earlier or

elsewhere.” (emphasis added)). The underlying rationale for the rule is that “employees

are responsible for ensuring their presence at work, and during the commute, they generally

face the same hazards as other commuters. Thus, the risks are not usually ‘directly

attributable to a person’s particular employment.’” Calvo, 459 Md. at 329 (citations

omitted). Such injuries, therefore, are not usually compensable unless they fall within one

18 of the recognized exceptions to the going and coming rule. Okafor, 225 Md. App. at 287.

B. Time, Place, and Activity

As we noted earlier, Schwan attacks the circuit court’s ruling chiefly under the “in

the course of employment” prong of LE § 9-101(b)(1). “An injury is in the course of

employment when it occurs during the period of employment at a place where the

employee reasonably may be in performance of his or her duties and while fulfilling those

duties or engaged in something incident thereto.” Wade, 345 Md. at 11 (citations omitted).

1. Place

a. General Principles

We begin with the “place” component of the “in the course of” prong. The parties

in this case dispute whether Mr. Frederick’s home was a work site. The Act does not define

“work site” or “place of employment,” and we have found no reported decisions in

Maryland that address the issue squarely within the context of injuries sustained by home-

based employees or home office workers. We glean certain principles from both Maryland

and out-of-state cases, however, that guide our analysis of whether the home can be

recognized as a work site under Maryland’s workers’ compensation law.

As a starting point, we recognize Professor Larson’s admonition that, “[t]eachers,

doctors, lawyers, architects, artists, executives—in fact almost any employee—may have

frequent occasion to perform services of some kind at home[.]” Larson § 16.10 at 16-27

(emphasis added); see also Bobinis v. State Ins. Fund, 235 A.D.2d 955, 956 (N.Y. App.

Div. 1997) (warning courts to be cautious in determining when an employee’s home has

become part of the employer’s premises “[a]s it is commonplace for many professional and

19 managerial level employees to take work home”).

Maryland cases that apply the “going and coming” rule have established that an

employee may not claim that work done at home for the employee’s own personal

convenience transforms the personal nature of a “going and coming” trip into a business

trip. See Stoskin v. Bd. of Educ. of Montgomery Cty., 11 Md. App. 355, 358 (1971)

(employee who reviewed work materials at home and was injured the next morning on a

public street upon arriving at her place of work could not rely on the work done at home to

recover under the dual-purpose exception to the going and coming rule); see also Fairchild

Space Co. v. Baroffio, 77 Md. App. 494, 498 (1989) (employee who chose to prepare a

presentation at home and was injured the next morning in a car accident while going to her

place of work could not rely on the work done at home to recover under the dual-purpose

exception).

The resounding rationale offered in these cases is that where there is no evidence as

to the nature of the employment agreement with respect to off-premises work, the courts

are unwilling to hold that an employee’s unilateral decision to select an off-premises place

in which to do work furthers the employer’s interests. See Stoskin, 11 Md. App. at 359

(“There is no evidence showing any agreement, either express or implied, between

[employee] and her employer that [employee] was undertaking, outside of her regular place

of employment, a special assignment for her employer’s benefit[.]” (emphasis added)); see

also Fairchild, 77 Md. App. at 499 (“Because there is no evidence that [employer] required

[employee] to perform the work at home, the ‘dual purpose’ exception to the ‘coming and

going’ rule is inapplicable.” (emphasis added)).

20 Other important precepts that we draw from our decisional law include that an

analysis of whether a home can be deemed a work site must take a totality of the

circumstances approach, and that the fact finder must determine the issue according to the

“facts and circumstances of each individual case.” Livering, 374 Md. at 574. As the Court

of Appeals has instructed, “[t]he word ‘employment,’ as used in [the] Act, includes not

only the actual physical labor but the whole period of time or sphere of activities.” Saylor

v. Black & Decker Mfg. Co., 258 Md. 605, 610 (1970) (quoting Watson v. Grimm, 200 Md.

461, 466 (1952) (emphasis added)). As such, a determination as to the “zone of protection”

provided by the Act is one that must be “made in each case on its particular facts.” Id.; see

also Okafor, 225 Md. App. at 286 (explaining that in analyzing whether an injury occurred

in the course of employment, “the entire sphere and period of employment may be

considered and also whether the employee has placed himself outside his employment, and

if so, how far. This is a fact-specific inquiry.”) (internal quotations omitted) (emphasis

added)).

b. Larson’s Indicia of a Home Work Site

With the aforementioned principles in mind, we find persuasive Professor Larson’s

approach to determining when a home qualifies as a place of employment:

When reliance is placed upon the status of the home as a place of employment generally, instead of or in addition to the existence of a specific work assignment at the end of the particular homeward trip, three principal indicia may be looked for: [1] the quantity and regularity of work performed at home; [2] the continuing presence of work equipment at home; and [3] special circumstances of the particular employment that make it necessary and not merely personally convenient to work at home.

21 2 Larson § 16.10[2] at 16-24 (emphasis added).13 Like most other jurisdictions that have

analyzed the question of when the home becomes a work site, we will look to Larson’s

“three principal indicia.” 2 Larson § 16.10[2] at 16-24; see, e.g., Kaycee Coal Co. v. Short,

450 S.W.2d 262, 265 (Ky. Ct. App. 1970) (finding, without expressly citing, Larson’s three

“indicia of genuine home employment premises status” to be present under the facts of the

case); Bobinis, 235 A.D.2d at 956 (concluding that the employee’s home did not achieve

the status of a work site under Larson’s framework); Kahn v. State, 289 N.W. 2d 737, 743

(Minn. 1980) (determining that injuries sustained while en route from another work site to

the home was compensable because the home qualified as a work site under Larson’s test);

Wilson v. Serv. Broads. Inc, 483 So.2d 1339, 1342 (Miss. 1986) (applying Larson’s test to

determine whether employee’s home constituted a place of work for purposes of

determining whether the employee’s injury was compensable as an exception to the going

and coming rule); Manzo v. Amalgamated Industries Union Local 76B, 575 A.2d 903, 906-

13 Maryland courts have consistently quoted, with approval, Professor Larson’s discussions on various workers’ compensation issues. See, e.g., McElroy Truck Lines, Inc. v. Pohopek, 375 Md. 575, 593 (2003) (quoting, with approval, Larson’s treatise in introducing a comparative test for trucking and other transitory types of employment); see also Mulready, 360 Md. at 55 (quoting, with approval, Larson’s treatise in adopting the positional-risk test); Mackin v. Harris, 342 Md. 1, 7-10 (1996) (adopting a narrower version of a test enunciated in Larson’s treatise for purposes of determining when a subsequent injury is compensable under the Act); Alitalia Linee Aeree Italiane, 329 Md. at 46-47 (adopting Larson’s own conveyance exception to the going and coming rule); Darby v. Marley Cooling Tower Co., 190 Md. App. 736, 744-45 (2010) (finding Larson’s discussion on standing instructive on this Court’s interpretation of Maryland’s rule on standing to appeal WCC decisions); Barnett v. Sara Lee Corp., 97 Md. App. 140, 149 (1993) (finding Larson’s discussion of fringe benefits to be “persuasive” in interpreting the meaning of a term in the Act); Fairchild Space Co., 77 Md. App. at 498-99 (turning to Larson’s rendition of the dual-purpose exception). 22 08 (N.J. Super. Ct. App. Div. 1990) (applying Larson’s test to determine whether

employee’s home constituted a work place for purposes of rendering an injury sustained

during travel from the home in New Jersey to the employer’s office in New York

compensable); Hille v. Gerald Records, 242 N.E.2d 816, 819 (N.Y. 1968) (finding that the

employee’s home had achieved the “status of a place of employment” under Larson’s three

indicia for purposes of applying the dual-purpose exception); see Black River Dairy Prods.,

Inc. v. Dep’t of Industry, Labor & Human Relations, 207 N.W.2d 65, 69 (Wisc. 1973)

(applying Larson’s test to conclude that the employee’s home constituted a work site and

that he was, therefore, already at work at the time of the injury).

The Wisconsin Supreme Court in Black River addressed, inter alia, “whether the

evidence [wa]s sufficient to sustain the finding that the workmen’s compensation claimant,

who was injured in a fall going from his home to his delivery truck, was performing

services incidental to his employment[.]” 207 N.W.2d. at 66. Black River Dairy Products

(“Black River”) employed Donald Smith as a salesman for one of its products, Roma Pizza.

Id. In his role as a salesman, Mr. Smith promoted, sold, and delivered Roma Pizzas to

various customers. Id. Mr. Smith made his deliveries with an employer-provided delivery

truck. Id. Mr. Smith did not have fixed working hours and used his own discretion in

determining the amount of hours he worked per day. Id. His “practice,” however, was to

leave his home around 7 a.m. so that he could arrive at his first customer by 8 a.m., and

then to work an average of 10 to 14 hours per day. Id. Because the company’s office was

almost 200 miles away from Green Bay, where Mr. Smith lived, Black River did not require

him to report to the office. Id. Mr. Smith, instead, conducted his bookwork and business

23 calls from his home. Id. He also received a weekly stipend of $20 for payment of

“electricity, phone calls, and promotion expenses.” Id. Black River had about 40 other

employees working the same position as Mr. Smith and “they all operated the same way.”

Id.

On the night before the accident, Mr. Smith prepared for the next day’s route in his

“customary manner”; he loaded up his delivery truck with pizzas and parked the truck in

his driveway, which allowed him to plug the truck’s electrical cord into his home and

activate the truck’s freezer unit to keep the pizzas frozen for the next day. Id. The next

morning, Mr. Smith left his home through a back door, intending to get into his delivery

truck to drive to his first customer of the day. Id. at 66-67. Unknown to Mr. Smith, there

was an invisible sheet of ice on the sidewalk and driveway to his home. Id. at 67. He

slipped and fell while walking to his truck and suffered a back injury. Id.

Reversing the trial court’s decision, the Wisconsin Supreme Court held that Mr.

Smith’s injury arose out of and in the course of his employment.14 Id. at 69. The Court

14 On the basis of the Wisconsin workers’ compensation statute, the Court determined that the case could be analyzed by applying either (1) the “traveling salesman” rule or (2) an exception to the “going and coming” rule. Id. at 67, 68-69. The Court began with Wisconsin’s traveling-salesman exception. Id. at 68. This exception provided that, when an employee’s job is to travel on behalf of an employer and to do work away from the employer’s premises, the employment begins as soon as the employee leaves his or her home to go to the first work-related site. Id. at 68. Applying this exception, the Court observed that Mr. Smith’s duty as a salesman required travel on behalf of the company and work away from the company’s premises “by traveling within a prescribed route promoting business.” Id. Furthermore, he was injured while acting in a customary manner—walking to his truck with the intent to go to his first stop and to perform his duty as a salesman. Id. Accordingly, the Court concluded that his injury fell within the scope of his employment because Mr. Smith’s workday began as soon as he left his home and he was performing work for the benefit of his employer at the time of the injury. Id. 24 looked to Professor Arthur Larson’s “three principal indicia” in order to determine whether

Mr. Smith’s home could be deemed the premises of the employer for purposes of falling

under the exception to the going and coming rule under Wisconsin’s workers’

compensation statute. Id. at 69. Employing Larson’s framework, the Court observed that

Mr. Smith returned home every day to complete work-related tasks and also kept the

employer-provided delivery truck at his home because it required an electrical connection

to keep the employer’s products frozen. Id. The “only reasonable inference,” the Court

observed, was that Mr. Smith did not work at home for his personal convenience, “but

because the employer furnished him no other place to do this work.” Id. Moreover, Black

River’s practice of giving Mr. Smith a weekly stipend to pay for certain home-related

expenses demonstrated its awareness and approval of Mr. Smith’s practice of using his

home as a place of employment. Id. The Court concluded that Mr. Smith’s home “should

be deemed the premises of his employer” and, therefore, Mr. Smith was already at work at

the time of the injury. Id.

By contrast, New Jersey’s intermediate appellate court in Manzo applied Larson’s

three principal indicia and concluded that the employee’s home did not qualify as a work

site. 575 A.2d at 907-08. Mr. Manzo was the president of Industrial Union Local 76B (“the

Union”). Id. at 904. At the time of his death, Mr. Manzo was driving a car, leased by the

Alternatively, the Court analyzed the case under Wisconsin’s statutory exception to the going and coming rule. Id. The statute established that the premises of an employer, for purposes of sustaining compensable injuries while going to or from work, encompassed “the premises of any other person on whose premises service is being performed.” Id. at 69. 25 Union, from his home in New Jersey to the Union’s office in New York City when he was

struck and killed by another automobile. Id. Mr. Manzo’s wife subsequently filed a claim

for dependency benefits with the Workers’ Compensation Court, which ultimately awarded

benefits and concluded that the “going and coming rule” did not preclude compensation.

The workers’ compensation judge found that Mr. Manzo’s home had become a “job

site” because he regularly used his home to conduct union business and that on the morning

of his death, Mr. Manzo was performing union business. Id. at 904-06. Specifically, the

judge found that (1) Mr. Manzo’s office was located in New York City where his secretary

and all appropriate office equipment were located; (2) the Union had an office in New

Jersey which contained other appropriate office equipment; (3) Mr. Manzo, in his role as

the president, often conducted union business from his home and kept all business records,

as well as a phone for which the Union paid, at his home; and (4) Mr. Manzo had done

some union work at home before leaving for his New York office on the day of the accident.

Id. at 905. Based on these findings of fact, the judge concluded that Mr. Manzo’s trip

occurred while “he was going from one job site to another and thus arose out of and in the

course of his employment.” Id. The New Jersey intermediate appellate court disagreed.

In addressing the compensation judge’s conclusion that Mr. Manzo’s home had

become a job site, the court narrowed its analysis to whether “it [was] necessary for

Mr. Manzo to use his home for the conduct of union business or [whether] it [was] simply

for his personal convenience[.]” Id. at 907. The court applied Larson’s framework and

prior appellate decisions in and outside of New Jersey, and rejected the compensation

26 judge’s conclusion that “Mr. Manzo’s work related activities at home were for the benefit

of the Union, as opposed to his own convenience, [a]s not supported by the evidence”

because the Union had provided offices in both New York and New Jersey containing

business equipment. Id. at 907. Therefore, the Court disagreed with the conclusion that

Mr. Manzo was traveling from one job site to another as “there [wa]s no dispute that, at

the time of the accident preceding Mr. Manzo’s death, he was on his way from his home

to his office in New York City.” Id. at 908.

Principles contained in Maryland law require an enhancement to Larson’s third

prong. In evaluating whether special circumstances of the employment rendered it

necessary, and not merely personally convenient, for the employee to work at home (the

third prong), there must also be evidence that the employer acquiesced to the employee

regularly using his or her home as a work site, or reasonably should have known the

employee was regularly using the home as a work site. The Court of Appeals’s analysis in

Livering is instructive.

As previously discussed supra Part.A.1., the employee in Livering was injured on

her day off while checking her work schedule at her place of employment. 374 Md. at 571.

Central to its determination that checking her work schedule at the restaurant was a task

incident to her employment was the Court’s recognition that although “[t]he employer

neither required nor prohibited employees from visiting the establishment to check the

schedule, [] it knew about and acquiesced in the custom.” Id. at 580 (emphasis added).

“Moreover, by unexpectedly changing the work schedule, the employer impliedly required

employees constantly to be aware of it.” Id. Consequently, the Court held that because

27 Ms. Livering’s injury “occurred on the employer’s premises while performing and as a

result of, a task incident to her employment,” her injury arose out of and in the course of

employment. Id. at 580.

The Court of Appeals more recently in Roberts looked again to whether the

employer acquiesced to the firefighter’s activities at a certain fire station in that case. 436

Md. at 597-98. At the time of Mr. Roberts’s injury, he was on “light duty” and was

traveling from physical training at a nearby high school, which his employer encouraged,

to his regular duty station to pick up his mail. Id. at 597-98. The Court concluded that the

regular duty station was a work-related site to which Mr. Roberts was traveling at the time

of his injury “because the mail he was picking up was that left for him at the site and the

practice of gathering the mail was one about which his supervisors were aware. As a result,

the County ‘acquiesced’ in Mr. Roberts’s act of gathering the mail at Fire Station 19.” Id.

at 606-07 (citing Livering, 374 Md. at 580) (emphasis added). Given this determination,

together with the County’s concession that the physical training rendered the high school

a work-related site, the Court held that Mr. Roberts’s travel was incidental to his

employment and, therefore, the injury he sustained was covered by the Act. Id. at 607.

We observe that other jurisdictions that have adopted Larson’s framework have

spoken to the requirement that the employer know about or acquiesced to an employee

regularly using his or her home as work site. See, e.g., Black River Dairy Prods., 207

N.W.2d at 69 (concluding that, in addition to the presence of Larson’s three indicia, the

employer’s practice of giving the employee a weekly stipend for certain home-related

expenses demonstrated its awareness of the employee’s practice of using his home as a

28 work site); cf. Bobinis, 235 A.2d at 956-57 (holding that an employee’s home did not

achieve the status of a work site under Larson’s framework and that “[f]urther, [the]

claimant’s supervisor testified that he encouraged his employees to perform their work,

other than hearings, in the office as much as possible”).

In sum, we hold that whether an employee’s home qualifies as a work site under

Maryland workers’ compensation law is established by three indicia: (1) the quantity and

regularity of work performed at home; (2) the presence of work equipment at home; and

(3) the special circumstances of the employment rendering it necessary, and not merely

personally convenient, to work at home. 2 Larson § 16.10[2] at 16-24. Under the last

(third) prong, the fact-finder should also consider whether the employer acquiesced to the

employee’s use of his or her home as a work site, or reasonably should have known the

employee was regularly using the home as a work site. Cf. Roberts, 436 Md. at 606-07;

Livering, 374 Md. at 580.

2. Time

Even where the home qualifies as a work site, additional factual determinations must

be made to satisfy the “time” component of the “in the course of” prong.15 For example,

even assuming Mr. Frederick’s home qualified as a work site for his job, he must also have

commenced his work day at the time he left to go to his first account in order to bring his

injuries within “the period of [his] employment.” Wade, 345 Md. at 11.

15 We do not undertake an analysis of the “arising out of” prong of LE § 9-101(b)(1), pursuant to which the fact-finder would consider whether the injury would have been sustained “but for” the fact that the conditions and obligations of employment placed the employee where the injury occurred. Livering, 374 Md. at 575. 29 In Proctor, we considered the “pertinent question of when the employment began

and ended” in assessing whether an injury that an employee sustained while leaving his

home was compensable under the Act. 228 Md. App. at 591 (internal quotations omitted).

Proctor, a Prince George’s County police detective, was injured “when he jumped to the

side to avoid knocking over his two-year old son as he and his family were walking out the

front door of their home.” Id. at 582. Det. Proctor had been on vacation the week preceding

the injury and was not scheduled to return to work until two days after the date of the injury.

Id. at 583. When the injury occurred, Det. Proctor was off-duty and was leaving his home

to go pick up his police cruiser from the County’s automotive repair facility. Id. at 583-

84. The WCC denied Det. Proctor benefits, prompting him to petition for judicial review

in the circuit court. Id. 585. Before the circuit court, “the parties agreed that there was no

dispute as to the facts of the case and resolved to determine the legal issue through cross-

motions for summary judgment.” Id. After a hearing, the circuit court reversed the WCC’s

decision, ruling that Det. Proctor’s actions arose out of and in the course of his employment

at the time of the injury. Id. at 586.

Prince George’s County, the employer, appealed to this Court, arguing that Det.

Proctor’s injury was not compensable because he was neither engaged in any law

enforcement activity nor under any directive to retrieve his cruiser at the time of the injury.

Id. at 587. In the alternative, the County posited that the “going and coming” rule precluded

recovery. Id. Ultimately, we held that Det. Proctor’s injuries did not arise out of or in the

course of his employment. Id. at 591. In reaching our holding, we explained:

Although “course of employment” is not strictly limited to the actual labor or to

30 the precise hours of work, it is “generally taken for granted that workers’ compensation was not intended to protect against all the perils of th[e] journey” between home and work. Injury to a worker that occurs before that journey has begun falls outside the course of employment.

Id. at 589 (internal citations omitted) (emphasis in original). We derived this principle

from the Court of Appeals’s decision in Police Commissioner of Baltimore City v. King,

219 Md. 127 (1959). In King, the Court of Appeals considered whether the beneficiaries

of a deceased Baltimore City police officer were entitled to death benefits from various

funds. Id. at 129. On the date of the accident, the officer in King had been at his home

watching television with his son and then went upstairs to get ready to report for duty. Id.

at 130. After about five minutes, the officer started down the stairway while partially

dressed and “carrying his shirt, tie, cap, keys, claw and gun.” Id. The officer slipped as he

descended the stairway, accidentally discharging his service revolver and fatally wounding

himself. Id.

The relevant statute for an award of death benefits under the fund at issue—the

Special Fund—required that the officer have been injured “while in the actual performance

of duty” and “while in the actual discharge of duty” in order to recover benefits. Id. at 132-

33. The Court in King construed the scope of the phrase “in the actual performance of

duty” by analogizing it to the terms “out of and in the course of employment” under

Maryland workers’ compensation law. Id. at 134-35. The Court then explained:

We have consistently recognized the general rule that injuries sustained by employees while going to or returning from their regular place of work do not “arise out of and in the course of their employment,” but in this case we are requested to hold that one who is dressing himself prior to starting on his trip to work is “in the actual performance of duty” or “in the discharge of duty.” We think this would extend the rule entirely too far.

31 Id. at 135 (footnote omitted). The Court also acknowledged that, although the police

department required the officers to “to hold themselves in readiness for emergency duty,”

the officer must nevertheless be actually discharging his regular duty or emergency duty at

the time of the injury. Id. at 134-35. This led the Court to conclude, “As Patrolman King

was off-duty and not performing or discharging any actual police duty at the time of his

unfortunate accident, we must hold that he was not in the actual performance or discharge

of duty.” Id. at 136.

Returning again to Proctor, we observed, in light of King that at the time of his

injury, Det. Proctor had been on vacation and was not expected to return to work for another

two days; he was injured on his front porch while leaving his home; and, although he was

preparing to make his journey to retrieve his cruiser, he had not yet embarked on this

journey and was not subject to any directive to retrieve the cruiser. Proctor, 228 Md. App.

at 590-91. Given these circumstances, we held that Det. Proctor’s injuries did not occur in

the course of his employment:

Here, as in King, Det. Proctor was “off-duty and not performing or discharging an actual police duty at the time of his unfortunate accident[.]” Looking to the pertinent question of “when the employment began and ended,” we cannot say that Det. Proctor’s injury occurred “within the time and space boundaries of the employment.” Rather, [Det. Proctor’s] injury occurred on his own front porch, while he was not on duty, and while he was “not performing or discharging any actual police duty at the time of his unfortunate accident.” We disagree that a fall on Det. Proctor’s own front porch was “within the range of dangers associated with [his] employment.” Accordingly, we agree with the WCC’s determination that Det. Proctor’s injury “did not arise out of and in the course of employment as alleged[.]”

Id. at 591 (internal citations omitted) (emphasis added). We also concluded that the going

32 and coming rule was not what barred Det. Proctor’s recovery because his injuries “arose

before he embarked on any work-related journey.” Id. at 591-92. Therefore, we declined

to analyze whether any exception to that rule applied to Det. Proctor’s case. Id. at 592.

3. Activity

Finally, the third component of the “in the course of” prong requires that the injury

also occur “while fulfilling those [work] duties or engaged in something incident thereto.”

Wade, 345 Md. at 11 (citations omitted). In the case in which a home qualifies as a work

site, and an employee has commenced his or her work day before leaving home to travel

to another work-related site, the Court of Appeals’s decision in Roberts explains when the

travel between the two work sites may be incidental to employment.

Thaddus Roberts was a paid firefighter employed by Montgomery County (“the

County”). 436 Md. at 594. Mr. Roberts was working a “light duty” position at the Fire

Department’s main headquarters as a result of a prior work injury. Id. at 596. While on

light duty, Mr. Roberts “worked four [10] hour shifts per week, starting at 7 a.m. and ending

at 5 p.m.” and was encouraged by the Fire Department to engage in two hours of physical

training per shift at any location of his choice. Id. Additionally, Mr. Roberts would go to

Fire Station 19, his “regular duty” station, about once per month to pick up work mail. Id.

On the date of the accident, Mr. Roberts was driving from his physical training at a high

school to Fire Station 19 to gather his mail when he was involved in a car accident. Id. at

597-98.

The WCC denied Mr. Roberts benefits, ruling that he did not sustain an accidental

injury arising out of and in the course of his employment. Id. at 599. Mr. Roberts

33 petitioned for judicial review in the circuit court. Id. The County moved for summary

judgment, arguing that Mr. Roberts’s injury was barred by the going and coming rule. Id.

at 599-600. In response, Mr. Roberts countered that “he was in a place he could reasonably

be expected to be in going from one ‘work-related duty’ of physical training, to another,

checking his work mail, which was ‘acquiesced to by Mr. Roberts’s supervisors,’” and that

“but for” these work-related duties, he would not have been injured. Id. at 600. The circuit

court nevertheless granted the County’s cross-motion for summary judgment and affirmed

the WCC’s decision because the injury occurred while “he was coming and going” to work.

Id. at 600-01 (internal quotations omitted). This Court, in an unreported opinion, affirmed

the trial court’s ruling and reasoned that Mr. Roberts was only “at work” when he was at

the employer’s headquarters, thus Mr. Roberts was only going to work at the time of his

injury. Id. at 601.

The Court of Appeals granted certiorari to address whether the going and coming

rule or the positional-risk test applied to determine whether Mr. Roberts’s injury arose out

of and in the course of his employment.16 Id. at 606. The County conceded that the

physical training was a work-related activity and that “any injury sustained during physical

training” at the high school would have been compensable, but argued that Mr. Roberts

was “not at his work site” until he reached the headquarters. Id. The Court rejected the

County’s argument and determined that Fire Station 19 was a work-related site because

16 As discussed, the going and coming rule takes injuries outside of the course of employment and, as a result, bars compensation. Therefore, if the going and coming rule applies, there is no need to also apply the positional-risk test to determine causation. Cf. Roberts, 436 Md. at 607 n.15. 34 “the mail he was picking up was that left for him at the site and the practice of gathering

the mail was one about which his supervisors were aware. As a result, the County

‘acquiesced’ in Mr. Roberts’s act of gathering the mail at Fire Station 19.” Id. at 606-07

(emphasis added). Based on this determination, the Court held that Mr. Roberts’s injury

arose out of and in the course of his employment:

Mr. Roberts, thus, was en route from a work-related activity to a site where he was to engage in a work-related act, to which the employer acquiesced. His travel, therefore, was incidental to his employment. Travel incidental to employment cannot be excluded from coverage by application of the going and coming rule. As a result, the injury he sustained is covered by the Workers’ Compensation Act, because “but for” his travel between work- related sites he would not have been injured.

Id. at 607-08 (emphasis added) (footnote omitted). The Court noted further that cases

exploring the exceptions to the going and coming rule were inapplicable because the going

and coming rule did not apply. Id. at 607 n.15.

To be sure, even if an employee sustains an injury during a compensable journey, a

deviation during such a trip could, depending on the circumstances, take an injury outside

the scope of employment. See Rumple v. Henry H. Meyer Co., 208 Md. 350, 358 (1955)

(“There is no exact method of determining the legal effect of a deviation. It depends upon

the circumstances; the nature of the work and the terms of the contract of employment

being most important.”).

C. Analysis

Applying all of the foregoing principles to the case before us, we cannot say that the

evidence permitted “but one conclusion” with regard to whether Mr. Frederick’s injury

occurred in the course of his employment. Millstone, 208 Md. App. at 80. Though this

35 inquiry can be a pure question of law in a case in which the parties stipulate that “there is

no dispute as to the inferences to be drawn from the facts,” Calvo, 459 Md. at 326, that was

not the case here. The parties dispute all the factual points discussed above.

Looking to the place component of the “in the course of” prong, material facts

remained in dispute in this case relating to all of the indicia for determining whether the

home qualified as a work site. Mr. Frederick testified that he routinely conducted work-

related tasks from his home in the mornings before leaving for his first account, including

the daily downloads on the Intermac and phone communications with his accounts and the

truck drivers on his daily route. He also testified, however, that one-on-one business

meetings with other Schwan employees were typically held in grocery store parking lots

and that larger meetings were held in a rented public library or hotel.

With regard to the work equipment in his home, Mr. Frederick admitted that Schwan

did not provide either the computer or the printer that he set up on his dining room table.

Besides the coupons and big display posters that Schwan mailed to Mr. Frederick’s home,

there was no evidence of any other work equipment in the home. The parties dispute

whether the discounted internet service that Schwan provided Mr. Frederick was

specifically to further his work-related activities at home.

The parties heavily dispute whether Mr. Frederick’s performance of work-related

activities at home was engendered by mere personal convenience or necessity. The record

establishes that Schwan did not provide any local offices from which he could work. Mr.

Frederick testified that, therefore, he had to conduct his daily downloads and send his

reimbursable mileage entries on the Intermac at his home because the device required WiFi

36 connection. However, he also testified on cross-examination that he could run the

downloads on his Intermac after he left his home so long as he could connect to WiFi.

Based on this testimony, Schwan argues that “it was really out of his personal convenience

that he used [the Intermac] at home in the morning.” From this evidence, the jury could

have concluded that Mr. Frederick’s use of the Intermac at home to conduct his daily

downloads was done for either personal convenience or necessity.

Significantly, the record does not establish whether or not Schwan acquiesced to

Mr. Frederick using his home as a work site, or reasonably should have known of such use.

For example, although Schwan did not provide any local office from which Mr. Frederick

could work, Black River Dairy Prods., 207 N.W.2d at 69, Mr. Frederick also admitted that

Schwan typically rented space for large work-related meetings and did not reimburse him

for mileage he incurred driving to his first accounts. Thus, at the motion for judgment

stage, the evidence did not establish, as a matter of law, that Mr. Frederick’s home met the

criteria of a home work site.

The facts also permitted alternative inferences regarding the time component of the

“in the course of” analysis. Schwan argued that Mr. Frederick was not at work until he

arrived at his first account and that it was Schwan’s understanding that the employment

relationship began at his first account—the point at which he was eligible to receive

reimbursement for his mileage. To the contrary, Mr. Frederick argued that his work day

had begun at his home because that was “his office,” and because he had already spoken

to his drivers and conducted his daily downloads prior to leaving for his first account.

Clearly, the question of whether Mr. Frederick had begun his work day before he left to

37 take his child to daycare was a question for the jury.

Finally, it was also for the jury to decide the activity component: whether Mr.

Frederick’s injury occurred “while fulfilling th[e] duties [of his employment] or engaged

in something incident thereto.” Wade, 345 Md. at 11. The trial court concluded that Mr.

Frederick’s injury occurred while “going to [his] customer’s location” from his home office

and that such a task was essential to his job.17 The factual disputes regarding the time and

space boundaries of Mr. Frederick’s employment, however, affect whether his walk to his

car (the activity) was incidental to his employment.

In a case in which an employee is injured leaving his or her home to go to work, the

law typically bars recovery under the going and coming rule, unless one of its exceptions

apply. Calvo, 459 Md. at 329 (citations omitted). Proctor, on which Schwan relies, applies

in cases in which the home is not a work site and the injury occurs while performing an

activity unrelated to employment and “before [a] journey [between the home and work]

has begun[.]” 228 Md. App. at 589, 591. In cases in which the home is deemed a work

site, an injury that occurs during travel between work-related sites, may be within the scope

of employment. Roberts, 436 Md. at 607. However, if, for example, an employee deviates

during the course of an otherwise work-related trip, then depending on the circumstances,

the deviation may take the injury outside the course of employment. Rumple, supra, 208

Md. at 358. Each analysis is dependent on resolution of the predicate facts informing place,

time, and activity, which, in this case, remain in dispute.

17 The court viewed the injury, in the alternative, as occurring during a commute and, accordingly, found it compensable under the exceptions to the going and coming rule. 38 We hold that the trial court erred in concluding, as a matter of law, that Mr.

Frederick’s injury “occurred in the course of his employment.” See, e.g., Scherr v. Miller,

229 Md. 538, 544-45 (1962) (holding that the trial court properly denied the employer’s

motion for judgment because it was “possible for a jury to draw either of two incompatible

inferences from the conflicting evidence” with respect to the issue of causation); Harrison,

135 Md. at 877-78 (reversing the trial court’s grant of a motion for judgment because there

were disputed facts and inferences as to whether the injury arose out of and in the course

of employment).18

JUDGMENTS OF THE CIRCUIT COURT FOR BALTIMORE COUNTY VACATED; CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. APPELLEE TO PAY COSTS.

18 Similarly, in light of the unresolved factual disputes relating to the “in the course of” prong, we also cannot say, as a matter of law, that Mr. Frederick’s injury arose out of his employment. As the Court of Appeals observed in Livering, “many of the facts relevant to analyzing ‘arising out of’ and ‘in the course of’ overlap” in some cases. 374 Md. at 580. That is also the case here. Unable to determine whether Mr. Frederick’s home was a work place, whether his work day had commenced, and whether he was engaged in an activity incidental to employment at the time of his injury, we are simply unable to apply the positional-risk test to determine whether Mr. Frederick’s injury would not have occurred but for the conditions and obligations of his employment. See id. at 575. 39