Warnken, LLC Attorneys at Law, Attorneys & Lawyers, Pikesville, MD

Can I Get It? Am I Eligible?

Analysis of the Accidental Personal Injury

I. Introduction

§ 9-101(b)(1) of the Labor and Employment (“L&E”) Article defines an “accidental personal injury” for purposes of the Workers’ Compensation Act (“the Act”).  For an injury to be compensable under the Act, it must “arise out of and in the course of employment.”  We try to answer the question:

Can I Get Workers’ Compensation?

II. The Separate but Related Aspects of an Accidental Personal Injury

The first prong of L&E § 9-101(b)(1) – whether an injury arises out of the employment – is essentially a “but for” inquiry.[1]  That is, but for the employment relationship, the employee would not have been injured.  Specifically, “Maryland has adopted the positional-risk test,” which stands for the proposition that “an injury arises out of employment if it would not have occurred if the employee’s job had not required him to be in the place where he was injured.”[2]

The positional-risk test has been applied to determine that an injury that occurred in a hotel bathtub was compensable under the Act while an employee was on a business trip, because the “personal act of bathing was reasonably incidental to the travel required by her employer.”[3]  Additionally, the test has been utilized to hold compensable an injury incurred in a departmental vehicle, despite the fact the accident occurred as the employee was attending to personal matters while off-duty.[4]  In short, an injury arises out of employment if it is deemed to be an “incident of employment.”[5]

Prong two of L&E § 9-101(b)(1) – whether an injury occurs in the course of employment – “consider[s] the time, place, and circumstances of the accident in relation to the employment.”[6]  It also coincides with prong one, in that both turn on whether an injury can be considered incidental to the employment relationship; i.e. whether there is a “clear nexus” between the employee’s “work and the injury.”[7]

Questions pertinent to this inquiry are:

  • When the employment began and ended
  • Whether the continuity of the period was broken
  • How far the employee placed himself or herself outside the employment during that period.

Stated otherwise, 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. 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.[8]

To that end, Maryland courts have found an injury sustained while an employee was picking up a paycheck at his place of employment to be compensable, even though the employee was off-duty at the time of incident.[9]  Likewise, an injury sustained after an employee’s termination was nonetheless compensable when the injury occurred on the employer’s premises while the employee was gathering his “personal effects,” two days after his firing.[10]  In both contexts, it was determined that an employee’s on-premise, off-duty injury was covered by the Act.

III. The Two Aspects of a Compensable Injury Can be Analyzed Together

Pursuant to the Court of Appeals of Maryland, the two components of L&E § 9-101(b)(1) can be considered concurrently due to their interrelated nature.[11]  In Livering v. Richardson’s Restaurant, the court held compensable an injury that occurred when an employee voluntarily went to her place of employment in order to consult the shift schedule for the week.  The court likened the act of checking a schedule to the act of picking up a paycheck and/or personal effects.[12]  The court concluded that checking the shift schedule was an incident of employment, even though the particular injury occurred while the employee was off-duty.

[The employee] would not have been injured but for the fact that she visited the restaurant to confirm her schedule. Not only was she checking her schedule at the time of the injury, but she also was hurt on the restaurant’s premises. There is a clear nexus between her work and the injury. Because appellant’s injury occurred on the employer’s premises while performing, and as a result of, a task incident to her employment, we hold that her injury arose out of and in the course of employment.[13]

Conclusion

L&E § 9-101(b)(1) of the Maryland Code mandates that an injury arise out of and in the course of employment in order to be compensable under the Workers’ Compensation Act.  The two aspects of an accidental personal injury are separate but often overlap, which allows courts to analyze the two prongs of L&E § 9-101(b)(1) concurrently.  Simply put, when an injury that is deemed an incident of employment occurs at the workplace, it is most likely a compensable accidental injury even if the particular employee is off-duty at the time of the incident.



[1] Livering v. Richardson’s Restaurant, 374 Md. 566, 575 (2003) (citing A. Larson, Workers’ Compensation Law § 3.05 (2002)).

[2] Id. (quoting Mulready v. University Research Corp., 360 Md. 51, 57 (2000)).

[3] Livering, 374 Md. at 576 (citing Mulready, supra note 2, 360 Md. at 66) (emphasis added).

[4] Id. (citing Montgomery County v. Wade, 345 Md. 1, 9-11 (1997)).

[5] See Livering, 374 Md. at 576.

[6] Id. at 577 (internal citations omitted).

[7] Id.

[8] Livering, 374 Md. at 577 (citing Montgomery County v. Wade, 345 Md. 1, 11-12 (1997)) (internal citations omitted) (emphasis added).

[9] Id. at 578 (citing Consolidated Engineering Co. v. Feikin, 188 Md. 420 (1947)).

[10] Id. at 579 (citing Nails v. Market Tire Co., 29 Md. App. 154 (1975)).

[11] See Livering, 374 Md. at 580.

[12] Id. at 579 (citing Feikin, supra note 9; Nails, supra note 10.

[13] Livering, 374 Md. at 580 (emphasis added).