Kline, Robert Lorenzo, III

English

University of Baltimore School of Law

University of Baltimore Law ForumVolume 17Number 2 Winter, 1987 Article 111987Recent Developments: Dade County SchoolBoard v. Polite: Florida Accepts the PremisesException to the Going and Coming Rule forWorkers' Compensation BenefitsRobert Lorenzo Kline IIIFollow this and additional works at: http://scholarworks.law.ubalt.edu/lfPart of the Workers' Compensation Law CommonsThis Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion inUniversity of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, pleasecontact snolan@ubalt.edu.Recommended CitationKline, Robert Lorenzo III (1987) "Recent Developments: Dade County School Board v. Polite: Florida Accepts the PremisesException to the Going and Coming Rule for Workers' Compensation Benefits," University of Baltimore Law Forum: Vol. 17 : No. 2 ,Article 11.Available at: http://scholarworks.law.ubalt.edu/lf/vol17/iss2/11282 Md. 413, 384 A.2d 742 (1978). In Feissner, liability of the employer and its insurer was simultaneously discharged un-der a statutory offset provision when the claimant received superior benefits from a government pension plan. This discharge occurred before the attorney had filed a fee petition. However, in the case herein as well as in Hoffman, the appellee's liability was not discharged. The attorney's lien "subsequently did attach to a portion thereof, obligating the appellees to pay claimant's attorney." Id. at 53, 517 A.2d at 354. The court in Staley has clarified any am-biguity that may have existed concerning the procedures to follow for attorney fees stemming from workers' compensation cases. It is clear that the court here has rightfully placed the interests of the com-pensation claimant ahead of governmental bureaucracy. - Christopher Hale Dade County School Board v. Polite: FLORIDA ACCEPTS THE PREMISES EXCEPTION TO THE GOING AND COMING RULE FOR WORKERS' COMPENSATION BENEFITS. In Dade County School Board v. Polite, 495 So.2d 795 (Fla.App. 1 Dist. 1986), the District Court of Appeal of Florida af-firmed the Deputy Commissioner's deter-mination that a teacher's injuries were compensable in that they arose out of and in the course of employment. The District Court of Appeal of Florida also held that the teacher was not precluded from receiv-ing benefits by the rule that an employee going and coming from work is normally considered outside the scope of his employ-ment, thereby recognizing the premises exception. In Dade County, a physical education teacher, Ms. Cheryl Polite, was injured when her automobile was struck by a hit-and-run driver after she had left a track meet. At the time of the accident she was returning the track equipment to the school from which she had borrowed it. Polite was employed by the Dade County School Board as a physical education teacher. Polite taught at North Glade Elementary School in the morning and at Lake Stevens Elementary School in the afternoon, five days a week. Although her workday offi-cially ended at 3:05 p.m. daily, Polite par-ticipated in after-school activities which were officially encouraged and reflected in a positive fashion on teacher evaluations. Throughout Polite's employment she had consistently participated in extracurricu-lar activities with which the Dade County School Board had knowledge of and given its approval. On the day of the accident, a track meet involving students from Polite's morning school, North Glade, was held at Skylake Elementary School in the afternoon. Polite was to teach physical education at Lake Stevens Elementary School that afternoon, but, on this day the Lake Stevens' students were released from school at 1 :45 p.m. Nevetheless, Polite was required to remain until 3:05 p.m. Polite then requested and was granted permission to leave Lake Stevens earlier than 3:05 p.m. Before leav-ing Polite collected some of Lake Stevens' track equipment which she knew might be needed at the track meet. Because she felt that the equipment might be needed the fol-lowing day by Lake Stevens' instructors, Polite intended to return the equipment immediately following the track meet. Ms. Polite went to the track meet and as-sisted at the starting line. She left Skylake before 4:00 p.m. traveling the only road leading away from the school en route to Lake Stevens to return the track equip-ment. While on the road, Polite's auto-mobile was struck in the rear by a hit-and-run driver, causing injury to her back, foot, right knee and right hand. Appellants Dade County School District and their insurer, Gallagher Bassett Insur-ance Service, argued that Polite's claims for medical expenses should be denied be-cause of the "going and coming rule." In the alternative, the appellants argued that Polite's injuries were not compensable be-cause attendance at the meet was not in the course of her employment because there was no requirement that she attend. The Deputy Commissioner in determining that the injuries were compensable held that the "after hours teacher participation was expected and considered in performance evaluations." 495 So.2d at 797. The Dep-uty Commissioner further held that Ms. Polite was not precluded from benefits by the going and coming rule because she was not traveling to her home, but was en route back to Lake Stevens to return the track equipment. Therefore, the commis-sioner determined that the injuries arose out of and in the course of Polite's employ-ment, thereby allowing the medical bene-fits sought and not precluding them by the going and coming rule. Id. at 797. The District Court of Appeal of Florida, in affirming the Deputy Commissioner's determinations, stated that the encourage-ment and reward by way of positive perfor-mance teacher evaluations was "compe-tent" and "substantial evidence" to show Polite was in the course of her employ-ment. Id. at 797. Further support for the court's holding was found in the fact that Polite "did not merely elect to attend" the after school activity since the activity was related to her field of expertise. The court also found other evidence from which it could have been reasonably inferred that "Polite arrived and assisted at the meet at least partially during her regular working hours, since she sought and obtained offi-cial permission to leave her afternoon as-signment early in order to attend." Id. In affirming the commissioner's decision that medical benefits are not precluded by the "going and coming rule," the court first stated the general proposition expounded in Stacy v. Cherry Farms, Inc., 449 So.2d Winter, 1987/The Law Forum-25 393 (Fla. 1st DCA 1984) that an employee going and coming from work is outside the scope of his employment. However, the District Court of Appeal of Florida looked to Sweat v. Allen, 200 So. 348, 350 (Fla. 1941) in stating that the "applicabil-ity of the rule depends upon the circum-stance of the particular employment." The court agreed with the commissioner's de-cision and found that Polite was not "off-duty away from the employer's premises." Id. Further, the court stated that "compen-sability is almost always awarded when the injury occurs while the employee is travel-ing along a public road between two por-tionsof the employer's premises", citing Larson on Worker's Compensation Law § 15-14(a) (1985). The court's essential reasoning for finding an exception to the going and coming rule was grounded in the fact that Ms. Polite's duties required her to be in two different locations within the Dade County school system, and the travel between the two different work-places "was an essential part of her em-ployment.'~ Id. The District Court of Appeal of Florida examined this case in two steps. First, an examination of the compensability of the injury found that the encouragement of participating in after school activities, coupled with the official permission and knowledge of such participation by the Dade County School System was substan-tial and competent evidence that the injury arose out of and in the course of Polite's employment. Second, the findings that Polite was not "off-duty" at the time of the accident, and that she was traveling the only road available allowed the court to ac-cept the Larson premises exception to the "going and coming rule." The importance of this Florida court's opinion is its rec-ognition of the premises exception which is present and accepted in a similar form in Maryland. - Robert L. Kline, III Crawley v. General Motors: DISPENSING WITH DISABILITY IN OCCUPATIONAL DEAFNESS CLAIMS In Crawley v. General Motors, 70 Md. App. 100,519 A.2d 1348 (1987) the Court of Special Appeals of Maryland inter-preted Md. Ann. Code art. 101, § 25A (1985) to mean that a claimant's eligibility to receive benefits under workers' com-pensation for occupational deafness is to be determined without regard to the em-ployee's loss of wages or his ability to per-form his regular type of work. Prior to this interpretation of § 25A, an employee who 26-The Law Forum/Winter, 1987 suffered from a hearing impairment as a result of industrial noise had to demon-strate a loss of wages or an incapacity to perform his regular work before being eli-gible for workers' compensation. By dis-pensing with this disability requirement, the court of special appeals has increased the number of claimants who are entitled to benefits for occupational deafness. Now, a claimant has to suffer only a compensable amount of hearing loss before being eligible for workers' compensation. For over twenty years, Douglas Crawley, Sr. had been exposed to industrial noise in the assembly division of General Motors where he worked. Alleging that he sus-tained a hearing loss as a result of his con-tinued exposure to the industrial noise at General Motors, Crawley filed a claim with the Workers' Compensation Commis-sion. The Commission determined that Crawley had sustained a compensable de-gree of hearing loss resulting from his em-ployment and awarded him benefits. General Motors appealed to the Circuit Court for Baltimore City, arguing that a "disablement" was necessary before an em-ployee could be compensated for occupa-tional deafness. Crawley stipulated that he had not suffered any "disablement." Rely-ing on Belschner v. Anchor Post Prods., Inc., 227 Md. 89,175 A.2d419 (1961), the circuit court judge reversed the commis-sion's order of award. The claimant in Belschner had been em-ployed as a saw operator for twelve years and as a result of this employment, suf-fered a compensable amount of hearing loss. The claimant, however, was still per-forming his duties as a saw operator and did not lose any wages. The Court of Ap-peals of Maryland affirmed the Workers' Compensation Commission's rejection of the claim and held that worker's compen-sation for an employee's loss of hearing was limited by the language of § 22(a): Where an employee of an employer subject to this article suffers from an occupational disease, and is thereby dis-abled from performing his work in the last occupation in which he was injur-iously exposed to the hazards of such disease, and the disease was due to the nature of the occupation ... the em-ployee ... shall be entitled to compen-sation ... . Md. Ann. Code art. 101, § 22(a) (1985) (emphasis added). The court of appeals in Belschner also analyzed the definitions of "occupational disease" and "disablement" in reaching its conclusion. Section 67(13) defines "occu-pational disease" as "the event of an em-ployee's becoming actually incapacitated, either temporarily, partially or totally, be-cause of a disease contracted as the result of and in the course of employment." Sec-tion 67(15) defines "disablement" as "the event of an employee's becoming actually incapacitated, either partly or totally." Citing Lumbermen's Reciprocal Ass'n v. Coody, 278 S.W. 856 (Tex. Civ. App. 1926), the court therein held that an em-ployee is not actually incapacitated within the intent of the law if the employee has the capacity to continue his regular em-ployment and receives his usual rate of pay. Although Belschner held that disable-ment was a prerequisite for worker's com-pensation for occupational deafness, the court therein stated, "If there is a need to liberalize the law or to change what we think it plainly means, that is a legislative, not a judicial function." Belschner, 227 Md. at 95, 175 A.2d at 422. In 1967, six years after the Belschner de-cision, the Maryland General Assembly enacted art. 101, § 25A entitled "Occu-pational deafness." The court of special appeals in Crawley was confronted with interpreting this section to resolve the dis-pute. Crawley contended that the legisla-ture in enacting § 25A was responding to the Belschner court's invitation to change the law. General Motors, on the other hand, contended that the legislature in-tended the disability requirement of§ 22(a) to apply, viewing § 25A as merely estab-lishing highly technical criteria for mea-suring occupational deafness. The court of special appeals began its inquiry of the legislative intent by examin-ing § 25A itself. "Although the language of section 25A does not specifically state whether the General Assembly intended to eliminate disablement as a precondition of recovery for occupational deafness. Never-theless, section 25A(a) reads 'Occupational deafness shall be compensated according to the terms and conditions of this sec-tion.'" Crawley, 70 Md. App. at 106, 519 A.2d at 1351 (emphasis in original). Con-cluding that the language of the section is ambiguous and not clearly revealing the legislative intent, the court examined the legislative history of the section. After examining the legislative history of § 25A, the court concluded that the leg-islature not only intended to provide tech-nical criteria for measuring loss of hearing but also intended to make occupational deafness compensable regardless of an em-ployee's inability to work or loss of wages. In reaching such a conclusion, the court found the language of§ 25A(c) significant. "By providing that a hearing loss of 15 decibels or less shall not constitute a com-pensable disability, the language employed by the Legislature implies that a hearing 

Recent Developments: Dade County School Board v. Polite: Florida Accepts the Premises Exception to the Going and Coming Rule for Workers\u27 Compensation Benefits

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Recent Developments: Dade County School Board v. Polite: Florida Accepts the Premises Exception to the Going and Coming Rule for Workers\u27 Compensation Benefits

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