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Md. high court defines when workers’ comp covers commutes

Court of Appeals clarifies 'special mission or errand'

Workers’ compensation does not cover injuries sustained traveling to and from work unless the destination was not the regular office on a day not usually worked and for a mandatory job assignment, a divided Maryland high court has ruled in sending back for trial a county bus driver’s bid for compensation for injuries suffered on her way to a weekend training session.

In its 4-3 decision Monday, the Court of Appeals said the “going and coming” to work exemption from workers’ compensation holds except when the employee was on a “special mission or errand” that “arose out of and in the course” of employment. Whether the job-required mission was “special,” and thus covered by workers’ compensation, depends on the fact-specific, case-by-case determination of whether the destination was “unusual” and the travel was “onerous,” the high court held.

In Rina Calvo’s case, the Silver Spring-based Montgomery County bus driver was required to attend a Gaithersburg training session on a Saturday, though her work schedule ran from Monday through Friday. While driving to the session in May 2015, Calvo was injured when she was rear-ended by a car at a red light.

That once-a-year training session could qualify as an “unusual” occurrence, and the Saturday assignment could be “onerous” for a worker who gets weekends off, the top court’s majority held.

“Applying the law to the facts, we conclude that it would not have been unreasonable for a jury to conclude that Calvo’s travel to a different location for training – on a day she did not normally work – was sufficiently irregular or unusual to justify a fact-finder’s conclusion that she met that criteria for the exception,” Judge Sally D. Adkins wrote for the majority.

“Maryland precedent and that of other jurisdictions demonstrates that onerousness requires a consideration of all the facts and circumstances of the journey,” Adkins added. “We think appropriate factors include the burden of the journey in comparison with the task to be completed, suddenness, urgency, the length and time of the journey, as well as whether the employee was required to work on a day that she did not normally work.”

Calvo’s attorney, Ken Berman, hailed the high court’s decision.

“It does cover a multitude of people who are required by their employer to go somewhere else than the normal worksite,” said Berman, of Berman, Sobin, Gross, Feldman & Darby LLP in Gaithersburg.

“You can drive and know that you’re covered,” Berman added. “Being called into a mandatory assignment on your day off is clearly incidental to your work and I believe most Marylanders would agree with that.”

The Workers’ Compensation Commission had found for Calvo, stating her injury arose out of and during the course of her employment by the county.

But the Montgomery County Circuit Court overturned the commission’s decision summarily, saying a trial was not needed because, as a matter of law, Calvo’s travel to the training session was no different than going to work. The intermediate Court of Special Appeals affirmed in an unreported decision, prompting Calvo to seek review by the Court of Appeals.

Montgomery County spokesman Patrick Lacefield said Tuesday that the county is reviewing the high court’s decision.

Judges Robert N. McDonald, Shirley M. Watts and Michele D. Hotten joined Adkins’ opinion.

In dissent, Judge Clayton Greene Jr. said an annual training day is not unusual and having to work on a day off does not constitute onerous travel.

“There were no facts – other than that it was not a normally scheduled work day – to indicate that Ms. Calvo’s journey to the training worksite on a Saturday was onerous in terms of its length, the distance the employee had to travel, the travel conditions, or the circumstances under which it was made, i.e. the time of day, whether it was a regular workday, or the conditions of travel,” Greene wrote.

Chief Judge Mary Ellen Barbera and Judge Joseph M. Getty joined Greene’s dissent in Rina Calvo v. Montgomery County, Md., No. 48 September Term 2017.

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