In a groundbreaking decision last month, the Court of Appeals abandoned the judicially created requirement that an injury arise out of unusual activity to be compensable under the Workers’ Compensation Act, the Court of Appeals held last month.
The so-called ‘slip, twist or fall’ rule, which is found nowhere in the statute, was supported by caselaw dating back 76 years — until the top court decided the case of a cafeteria worker named Vernell Harris.
Harris, 58, is employed by the Howard County Board of Education as a Food and Nutritional Service Assistant I. Her duties included, among other things, laundering linens used throughout the day and lifting boxes of frozen food weighing approximately 35 pounds from the freezer and carrying them to the food preparation area.
On January 25, 1999, Harris was doing laundry with a co-worker. She opened a 45-pound box of soap powder, only to find it was infested with cockroaches. Harris and a co-worker dragged the box away from the food preparation area, removed the inner bag containing the soap, discarded the infested box and dragged the bag back inside.
|HARRIS V. BOARD OF EDUCATION|
|CA No. 43, September Term 2002. Opinion by Eldridge, J. Filed June 6, 2003. Reported. Holding: It is not necessary for an injury to arise out of unusual activity in order to be compensable under the Workers’ Compensation Act.Record Fax No. 3-0606-21, 43 pages.|
After bending down to scoop soap detergent into a cup, Harris bent down a second time to tie up the bag of soap powder. At that point, her back ‘cracked’ and she screamed, unable to stand or sit.
Harris was seen by Dr. Prudence Jackson at the Concentra Medical Center, who gave expert testimony that dragging the heavy box of laundry soap caused Harris’ back injury.
Harris filed a claim with the Workers’ Compensation Commission, alleging that she was disabled because of her back injury. After a hearing, the Commission found Harris was entitled to compensation.
The Board of Education filed an action for judicial review, and the jury returned a verdict in the board’s favor. Harris filed a motion for judgment notwithstanding the verdict or for a new trial, but the motion was denied. The Court of Special Appeals affirmed; however, the Court of Appeals reversed.
‘The ‘unusual activity’ requirement is not supported by the language of the Workers’ Compensation Act, is contrary to other opinions by this Court, is a distinct minority view in the nation, and contravenes the liberal purposes of the Workers’ Compensation Act,’ Judge John C. Eldridge wrote for the Court of Appeals.
Under the plain language of LE §9-101(b), what must be ‘accidental’ is the injury and not the activity giving rise to the injury.
The line of cases requiring that an accidental personal injury arise out of ‘unusual activity’ for there to be coverage adds a requirement not contained in the statutory language.
That line of cases requires both (1) that the accidental injury arise out of and in the course of employment and (2) that the accidental injury arise out of ‘unusual activity.’ These cases could not be reconciled with the often-repeated principle that a court will ‘neither add nor delete words in order to give the statute a meaning not otherwise communicated by the language used.’ Blind Industries v. Department of General Services, 371 Md. 221, 231, 808 A.2d 782, 788 (2002).
The Board of Education cited Slacum v. Jolley, 153 Md. 343, 138 A. 244 (1927), which appeared to be the first opinion that injected into the definition of ‘accidental injury’ a restrictive requirement that the injury, to be covered, must result from ‘unusual activity.’ In Slacum, the employee, Jolley, was a bus driver who died after driving a bus on a summer day. In denying compensation, the Slacum court stated that compensation would only be warranted if there was some evidence that Jolley died of heat stroke and that such injury was occasioned by some unusual and extraordinary condition in his employment not ordinarily found. There was no such evidence.
Slacum represented an extreme minority view and has been criticized. The notion that an injury or death of an employee, caused by a continuing heat condition in the place of employment, was not an accidental injury arising out of the employment, was contrary to the plain meaning of the term ‘accidental injury.’ Nonetheless, the Slacum holding was applied in Miskowiak v. Bethlehem Steel Co., 156 Md. 690, 145 A. 199, and Atlantic Coast Shipping Co. v. Stasiak, 158 Md. 349, 148 A. 452 (1930).
Moreover, Slacum, Miskowiak, and Atlantic Coast Shipping Co. spawned a line of cases holding that, to be an accidental personal injury covered by the Workers’ Compensation Act, the injury must not only arise out of and in the course of employment, but it must also result from an ‘unusual condition or strain.’ See, e.g., Kelly-Springfield Tire Co. v. Daniels, 199 Md. 156, 161, 85 A.2d 795, 797 (1952); Jackson v. Ferree, 173 Md. 400, 196 A. 107 (1938).
Only a small minority of other jurisdictions have adopted the ‘unusual activity’ requirement with regard to continuing conditions in the workplace. The line of Maryland cases requiring ‘unusual activity,’ seemed to constitute a minority of one.
Harris, both as a matter of common sense and as a matter of law, suffered a covered accidental personal injury. The court overruled Slacum, 153 Md. 343, 138 A. 244, Miskowiak, 156 Md. 690, 145 A. 199; Atlantic Coast Shipping Co., 158 Md. 349, 148 A. 452, and similar holdings.Watch Word
Expect legislation to counteract the holding in this case to be introduced in the next General Assembly session. In 1999, the Legislature turned down a measure that would have had substantially the same effect. At the time, the fiscal note to the bill estimated the additional cost to employers and insurers would be $100 million a year.