The Going and Coming Rule Does Not Always Apply

In an unreported opinion, the Maryland Court of Special Appeals held that the Circuit Court for Prince George’s County did not err in finding that a public safety officer, who was injured in an accident while driving his personal motor cycle to retrieve his cruiser before beginning his shift, was a compensable accidental injury under the Maryland Workers’ Compensation Act. Prince George’s County v. Zonn, 1514,SEPT.TERM,2017, 2018 WL 6721767, (Md. Ct. Spec. App. Dec. 21, 2018).

The claimant, a corporal with the Prince George’s County Police Department, was driving his personal motorcycle to retrieve his police cruiser before the start of his shift on July 11, 2016, when he was involved in an accident resulting in severe injuries.

The claimant was enrolled in the County’s Personal Car Program (PCP). The County’s PCP allowed officers who reside in Prince George’s County to take their police cruisers home, allowing them to travel between their residence and duty location. Officers who do not reside in the County were still permitted to participate in the PCP, but were required to park their patrol vehicles in a Department authorized location within County lines in between shifts. The latter applied to the claimant who was a resident of Anne Arundel County. Accordingly, he would park his cruiser at a church parking lot located in Bowie, Maryland, which was an authorized parking location in Prince George’s County. At the time of the accident, the claimant had been parking at the location for approximately five or six years, along with about eight other officers.

Following the accident, the claimant filed a claim with the Maryland Workers’ Compensation Commission. The County contested the claim and a hearing was held before the Commission on the issue of whether the claimant sustained an accidental injury arising out of an in the course of his employment.

The Commission found that the claimant did not sustain an accidental injury arising out of an in the course of his employment and disallowed the claim.

The claimant appealed the Commission’s decision to the Circuit Court of Prince George’s County. At the conclusion of discovery, both parties moved for summary judgment. The Circuit Court granted judgment in favor of the claimant, thereby reversing the Commission’s decision. The County then petitioned the Court of Special Appeals for review of the Circuit Court’s Order.

The issue before the Court of Special Appeals was whether the Circuit Court erred in finding that the claimant’s injuries arose out of and in the course of employment and were therefore compensable.

In Maryland, it is well-settled that injuries sustained by an employee during their ordinary, everyday travel to and from work do not arise out of an in the course of employment, and therefore, are not compensable under the Act. This is what is commonly referred to as the “going and coming rule.”

Under the Maryland Workers’ Compensation Act, an accidental injury must arise out of and in the course of employment. LE Section 9-101(b)(1). Maryland courts have adopted the positional-risk test in determining whether an injury arises out of employment. Under the positional-risk test, an injury arises out of employment if the injury would not have occurred had the job not required the employee to be in the place where the injury occurred.

In applying the positional-risk test, the Court of Special Appeals held that the claimant’s injuries did in fact arise out of his employment. In reaching this conclusion, the court relied heavily on the Maryland Court of Appeals decision in Roberts v. Montgomery Co.436 Md. 603 (2014), where the claimant, a firefighter, was injured in a motor vehicle accident after leaving the fire station on his way to a Department encouraged physical training. In Roberts, the court concluded that the going and coming rule did not apply because the claimant was in route from a work related activity to another work related activity, which made the travel incidental to his employment and compensable under the Act. In other words, “but for” the claimant’s travel between work related sites, he would not have been injured.

In Zonn, the County argued that the going and coming rule applied because the claimant was off duty when he was traveling from his home in Anne Arundel County to work in Prince George’s County when he was involved in the accident.

In rejecting the County’s argument, the Court of Special Appeals distinguished the case from a situation where an employee is simply traveling to and from work. Instead, under the positional-risk test, the court indicated that “but for” the Department’s requirement that the claimant retrieve his police cruiser prior to the start of his shift, he would not have traveled the route where the accident occurred.

In this unreported opinion, the Court of Special Appeals assures us that their decision will not alter the future application of the going and coming rule in cases where employees are traveling to and from work under their own authority. It only affirms what we already know – that in Maryland, if an employee is required by their employment to be where the injury occurs, it will generally be found compensable under the Act.

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