E-Alert Case Updates

Injury While Travelling Back To Work After Changing Clothes For Suitable Attire Was Not Compensable

Scott Garrity v. Injured Workers’ Insurance Fund
No. 1185 (Md.), (February 9, 2012)
by Kevin M. Cox, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Plaintiff, Scott Garrity (“Mr. Garrity”), a part-time bailiff at the District Court for Baltimore City, was involved in an automobile accident as he returned to the courthouse. He submitted a claim to the Workers’ Compensation Commission (“the Commission”), which concluded that his injury arose out of and was in the course of his employment. The Circuit Court for Baltimore County reversed and remanded the decision. Mr. Garrity noted the instant appeal, claiming that the Circuit Court for Baltimore County erred in its reversal of the Commission’s finding that he had not suffered a compensable injury arising out of and in the course of his employment.

On June 8, 2006, Mr. Garrity arrived at work and realized that he was wearing an inappropriate tie for his uniform. He also spilled coffee on his shirt and tie, and for these reasons decided to drive home and change. Accordingly, Mr. Garrity asked the other bailiff to cover for him. The lead bailiff at the Hargrove Courthouse, however, indicated that it was not customary for a bailiff to leave the courthouse, without seeking permission, when assigned to a courtroom. Moreover, the supervising bailiff for the District Court for Baltimore City noted that Mr. Garrity should have advised his supervisor that he was leaving the courthouse. Nevertheless, Mr. Garrity left the courthouse on June 8, 2006 to change his shirt and tie and, while traveling back to the courthouse, was struck by a truck head-on. He suffered serious injuries, and the Commission held that they were compensable because they arose out of and/or in the course of his employment. On judicial review by the Circuit Court for Baltimore County, Mr. Garrity’s injuries were found not to be compensable.

A compensable “accidental personal injury” occurs when “an injury . . . arises out of and in the course of employment . . . .” An injury is considered to arise “out of employment if it results from the nature, conditions, obligations, or incidents of the employment.” “An injury arises in the course of employment ‘when it occurs during the period of employment at a place where the employee reasonably may be in the performance of his duties and while he is fulfilling those duties or engaged in doing something incident thereto.’”

Ordinarily, an employee that suffers an injury going to or returning from his place of work is not considered to be acting in the course of his employment. A special mission occurs when “an employee is acting in the course of employment when traveling on a special mission or errand at the request of the employee and in the furtherance of the employer’s business, even if the journey is one that is to or from the workplace.”

Mr. Garrity asserted that his employer’s “Policy on Appropriate Attire and Appearance” (the “Policy”) which provides that all judiciary employees shall “present an appropriate and professional image at work[,]” “in effect ‘mandated’ that he change his shirt and tie once he spilled coffee on them.” He also contended that he was vested with express authority and discretion to drive home and change because the judiciary depends on the “appropriate discretion” of its employees in interpreting and applying the Policy. The Court of Special Appeals responded that the special mission exception ordinarily is recognized when an employee is acting in accordance with a specific request from an employer, which did not occur here.

In the case sub judice no one instructed Mr. Garrity that he needed to go home and change his shirt and tie. The Policy, which Mr. Garrity contended provided express authority to leave the courthouse without authorization, is merely a policy that gives employees guidance on professional attire. It does not contain a specific mandate that requires employees to leave when they realize that their attire may be inappropriate. Even if an employee’s attire is inappropriate, and it is necessary for him or her to change, that decision should be made by a supervisor. Moreover, the discretionary portion of the Policy cannot be considered express authority for an employee to leave without authorization. Thus, the court concluded that the Policy did not provide Mr. Garrity with express authority to leave the courthouse without permission.

The dual purpose doctrine provides that an injury is compensable if the injury occurs during a trip that serves both a business and personal purpose. The doctrine generally is applicable when a “trip involves the performance of a service for the employer which would have caused the trip to be taken even if it had not coincided with the personal journey.” Mr. Garrity contended that his injury was compensable under the dual purpose doctrine because he was advancing the judiciary’s interest. He specifically asserted that: (1) he had his radio with him so he could monitor communication and return if needed; and (2) the policy provided that an employee must maintain “a professional and appropriate image . . . .”

The court found that the fact that Mr. Garrity had his radio with him did not demonstrate that there was express or implied authority to leave the courthouse without authorization. Although he thought he was providing the courthouse with a service by taking the radio with him, he would not have been able to respond as expected, or presumably needed, had he been called on the radio. Taking the radio may have served a business purpose if, however, a supervising authority had authorized him to leave on the condition that he took his radio. This did not occur in this case, though. Instead, Mr. Garrity independently decided that taking the radio would be a sufficient alternative to asking for authorization to leave the courthouse. The court noted, however, that had Mr. Garrity contacted his supervisor and received authorization to leave the courthouse to return home to change his shirt and tie, his trip arguably would have been in the course of his employment. Furthermore, the Policy did not provide Mr. Garrity with express or implied authority to leave the courthouse without authorization.

Finally, Mr. Garrity argued that his injury was compensable under the “personal comfort” exception. The “personal comfort” exception is applicable where the terms of employment provide a paid break in which an employee can attend to his or her personal comforts and where an employer encourages a break that benefits the employer and the employee. The record did not suggest that the terms of Mr. Garrity’s part-time employment entitled him to a paid break in which he could attend to his personal comforts. The court held that any benefit derived from Mr. Garrity’s errand was not the mutual benefit envisioned by Maryland precedent. Moreover, it was unreasonable to assume that Mr. Garrity’s employer could have known that he was attending to a personal comfort at his house. Thus, the court concluded that the personal comfort exception did not make Mr. Garrity’s injury compensable.