Harris v. Board of Education

We issued a writ of certiorari in this workers’ compensation case for the purpose of reconsidering one particular line of this Court’s opinions which have held that, for an injury to be covered as an “accidental injury” under the Workers’ Compensation Act, Maryland Code (1991, 1999 RepLVoL), § 9-101 et seq. of the Labor and Employment Article, the injury must result from “unusual activity.” 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. We shall overrule the line of cases which injected the “unusual activity” requirement into the definition of “accidental injury.”

I.

In January 1999, the petitioner, Vernell Harris, was fifty-eight years old and had been employed by the respondent, the *25 Howard County Board of Education, for twelve years at Wilde Lake High School, as a “Food and Nutritional Service Assistant I.” Ms. Harris’s duties included preparing lunches for the students, tending to the cash register, cleaning the kitchen area, and laundering all linens used throughout the day. It is undisputed that Ms. Harris’s regular work involved lifting boxes of frozen food weighing approximately thirty-five pounds from the freezer and carrying them to the appropriate food preparation area. 1

On the day that she incurred her injury, January 25, 1999, Ms. Harris was doing laundry with a co-worker, as she typically did at the end of her workday. The two women opened a forty-five pound box of laundry detergent, but they *26 found that the box was full of cockroaches. They immediately closed the box to prevent the insects from contaminating the food preparation area and moved the box outside. Because the box was very heavy, they could not lift it. Instead, Ms. Harris and her assistant dragged the box out of the laundry room by sliding it through the kitchen and out of a side door. Once outside, they removed the bag of soap powder from the box. This required some pulling back and forth on their part. Ms. Harris pulled on the box while her assistant pulled out the soap powder bag. Once the soap powder was out of the box, they took the bag back inside to the laundry room and placed it in a different box that was elevated only about half as high as the original box.

After bending down to scoop some soap detergent into a cup, Ms. Harris bent down a second time to tie up the bag of soap powder. At that point, her back “cracked” and she screamed. Ms. Harris was unable to stand upright, and, when a co-worker brought her a chair, she was unable to sit. She appeared to be in excruciating pain. With the aid of another co-worker, Ms. Harris walked to the cafeteria manager’s office who gave her an incident form authorizing her to see a doctor at a nearby medical office.

Ms. Harris was seen by Dr. Prudence Jackson at the Concentra Medical Center later that afternoon. Dr. Jackson testified that it was her expert medical opinion, within a reasonable degree of medical certainty, that dragging the heavy box of laundry soap outside caused Ms. Harris’s back injury.

In August 1999, Ms. Harris filed a claim with the Workers’ Compensation Commission, alleging that she was disabled as a result of her back injury on January 25, 1999. After a hearing, the Workers’ Compensation Commission issued an order finding that Ms. Harris had sustained an accidental injury arising out of and in the course of her employment and was entitled to compensation.

The employer, the Howard County Board of Education, filed in the Circuit Court for Howard County an action for *27 judicial review. At the jury trial in December 2000, Ms. Harris moved for judgment at the close of the employer’s case-in-chief and at the close of all evidence on the ground that, as a matter of law, her injury was compensable under the Maryland Workers’ Compensation Act. The trial judge denied both motions on the ground that there was sufficient contradictory evidence, as to whether the injury arose out of “unusual activity,” for the issue to go to the jury. Ultimately, the jury returned a verdict in favor of the employer. Thereafter, Ms. Harris filed a motion for judgment notwithstanding the verdict or for a new trial, but the motion was denied.

Ms. Harris took an appeal to the Court of Special Appeals which, in an unreported opinion, affirmed. The intermediate appellate court, relying upon Sargent v. Board of Education, Baltimore County, 49 Md.App. 577, 580-582, 433 A.2d 1209, 1211-1212 (1981), held that there was sufficient evidence that Ms. Harris’s injury did not arise out of “unusual activity” to sustain the jury’s verdict. The appellate court stated:

“Clearly, there was sufficient evidence to allow appellee’s case to proceed to the jury. Although dragging the detergent box outside of the kitchen was not a task which was performed with regular frequency, the nature of the task was similar to the chores performed by appellant during a typical work day, satisfying the first prong of the Sargent test. During its case-in-chief, appellee presented evidence that lifting boxes, weighing between twenty-seven and thirty-six pounds, was a normal occurrence, even if dragging a soap box was not. Similarly, with regard to the second prong of the test, appellee presented sufficient evidence that the tasks were performed with relative frequency: appellant was to lift the boxes almost every day during the completion of her duties.” 2

*28 Ms. Harris filed in this Court a petition for a writ of certiorari, requesting in her first question presented that we “revisit the definition of the word ‘accident’ within the meaning of the Maryland Workers’ Compensation Act” and that we “restore the use of the meaning this Court originally gave the word: an untoward event which was neither expected nor intended-referring to the injury itself, not the activity which resulted in the injury, and thus consónate Maryland law with that of the vast majority of the states____” In her second question presented, Ms. Harris argued that, if this Court were to retain the “unusual activity” requirement, we should hold that the activity in the case at bar was “unusual.” We granted the petition, Harris v. Board of Education of Howard County, 369 Md. 659, 802 A.2d 438 (2002), and we shall reverse. In light of our holding on the first question presented, we do not reach the second question.

II.

Maryland was the first state in the nation to enact a workers’ compensation statute. See Ch. 139 of the Acts of 1902; Honaker v. W.C. & A.N. Miller Development Co., 285 Md. 216, 223 n. 2, 401 A.2d 1013, 1016-1017 n. 2 (1979). 3 The *29 current Maryland Workers’ Compensation Act was initially enacted by Ch. 800 of the Acts of 1914. As first enacted, the 1914 Workers’ Compensation Act compensated employees for “accidental injuries” occurring in “extra-hazardous” employment, but the Act excluded “occupational diseases.” 4 The coverage of “occupational diseases” began in 1939, and the “extra-hazardous” language was deleted by Ch. 741 of the Acts of 1970. 5

The current Maryland Workers’ Compensation Act, in § 9-101(b) of the Labor and Employment Article, defines “accidental personal injury” as follows:

“ § 9-101. Definitions.

(a) In general. — In this title the following words have the meanings indicated.

(b) Accidental personal injury. — “Accidental personal injury” means:

*30 (1) an accidental injury that arises out of and in the course of employment;

(2) an injury caused by a willful or negligent act of a third person directed against a covered employee in the course of the employment of the covered employee; or

(3) a disease or infection that naturally results from an accidental injury that arises out of and in the course of employment, including:

(i) an occupational disease; and

(ii) frostbite or sunstroke caused by a weather condition.”

The above-quoted language contains no mention of “unusual activity.” Under the plain language of the statute, what must be “accidental” is the injury and not the activity giving rise to the injury. The activity giving rise to the injury need only “arise[ ] out of and in the course of employment,” and not be otherwise excluded by the Act. See Seidman, “Accidental Means” In Workmen’s Compensation, 18 Md. L.Rev. 131 (1958).

As Judge John J. Parker stated for the federal Circuit Court of Appeals, Fourth Circuit, with regard to the same language in the Longshoremen’s and Harbor Workers’ Compensation Act, the statutory language “says nothing about unusual or extraordinary conditions; and there is no reasonable basis for reading such words into the statute.” Baltimore & O.R. Co. v. Clark, 59 F.2d 595, 597 (4th Cir.1932). The Fourth Circuit in Clark refused to follow this Court’s opinions in Slacum v. Jolley, 153 Md. 343, 138 A. 244 (1927), and Miskowiak v. Bethlehem Steel Co., 156 Md. 690, 145 A. 199 (1929), which had added the “unusual activity” requirement to the Maryland Workers’ Compensation Act.

The line of cases in this Court requiring that an accidental personal injury arise out of “unusual activity” for there to be coverage obviously adds a requirement not contained in the statutory language. That line of cases requires *31 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.” Such cases cannot be reconciled with the often-repeated principle that this 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). See, e.g., Medex v. McCabe, 372 Md. 28, 38, 811 A.2d 297, 303 (2002) (“We cannot modify an unambiguous statute, by adding or removing words”); Dyer v. Otis Warren Real Estate, 371 Md. 576, 585, 810 A.2d 938, 943 (2002) (“[F]or the petitioner’s interpretation to be adopted, ... there would need to be additional language added to [the statute]”); Caffrey v. Dept. of Liquor Control for Montgomery County, 370 Md. 272, 292, 805 A.2d 268, 279 (2002) (“ ‘[A] plainly worded statute must be construed without forced or subtle interpretations designed to ... limit the scope of its operation’ ”); Gillespie v. State, 370 Md. 219, 222, 804 A.2d 426, 427 (2002) (“We neither add nor delete words to an unambiguous statute”); In re Ryan S., 369 Md. 26, 56, 797 A.2d 39, 57 (2002) (“We refuse to read any broader the language of the Legislature, so ... carefully constructed”); Dept. of Environment v. Underwood, 368 Md. 160, 184, 792 A.2d 1130, 1144 (2002) (“[W]e are bound to give effect to the entire [statute], neither adding, nor deleting, words”) (internal quotation marks omitted); Montrose Christian School v. Walsh, 363 Md. 565, 595, 770 A.2d 111, 128-129 (2001) (to “ ‘insert the phrase ... contended for by the petitioner, would be to re-draft the statute under the guise of construction,’ ” quoting Davis v. State, 294 Md. 370, 378, 451 A.2d 107, 111 (1982)).

III.

A.

The plaintiff in the case at bar primarily relies upon the leading case of Victory Sparkler & Specialty Co. v. Francks, 147 Md. 368, 128 A. 635 (1925), which may be the most cited *32 Maryland case concerning the Workers’ Compensation Act. Victory Sparkler was a tort action by Catherine Francks, an employee of a fireworks manufacturing plant, against her employer, the fireworks manufacturer. The plaintiff had become ill as “the result of the gradual contraction of a disease known as ‘phosphorus poisoning,’ caused by the inhalation of fumes and gases wrongfully and negligently permitted and allowed by the defendant to be collected in the place in which the ... plaintiff worked,” Victory Sparkler, 147 Md. at 371, 128 A. at 635-636 (internal quotation marks omitted). “[D]uring the years 1921, 1922, 1923, or parts thereof, ‘she gradually contracted [the] disease,’ ” 147 Md. at 378, 128 A. at 638. It was claimed, inter alia, that the employer failed “to supply proper appliances and equipment for the expulsion of the gases,” and that the employer did not obtain competent employees to operate the equipment for expelling the fumes. Ibid.

The employer in Victory Sparkler defended the negligence action on the ground that Ms. Francks’s injury was covered by the Workers’ Compensation Act, that the employer was ready and able to pay her the compensation to which she was entitled under the Act, and that the Workers’ Compensation Act was her exclusive remedy. The plaintiff replied that her illness “was not an accidental injury but an occupational disease, and so not within the Workers’] Compensation Act.” 147 Md. at 378, 128 A. at 638. The Circuit Court for Caroline County agreed with the plaintiff, overruled the employer’s defense, permitted the negligence action to be tried, and a judgment in favor of the plaintiff was rendered. Upon the employer’s appeal, this Court unanimously reversed, holding as follows (147 Md. at 382-383, 128 A. at 640):

“The phosphorus poisoning of the girl was contracted in the course of and arising out of an hazardous employment, at a particular place and within a known and definite particular period of time, and in causal connection with the negligence of the employer, whose neglect and its effect were not foreseen or anticipated by her. She was accordingly entitled to compensation under the act, as is admitted *33 by the appellant, as well as its willingness to pay her compensation.”

Judge Parke for the Court in Victory Sparkler began his discussion of the Workers’ Compensation Act by pointing out that prior opinions had established that, aside from specific exceptions, the Act furnishes the remedy “in hazardous employments, in regard to all injury arising out of and in the course of employment.” (147 Md. at 375, 128 A. at 637, emphasis added). With regard to the plaintiffs argument that the “Act is restricted in its operation to that distinct and separate class of injuries arising from accidents,” and the plaintiffs reliance on a few out-of-state cases interpreting workers’ compensation statutes narrowly, the Victory Sparkler opinion responded (147 Md. at 376-377, 128 A. at 637-638, emphasis added):

“This theory of the statute is at once confronted by the salient purpose of the act, to put an end to private controversy and to litigation. [The plaintiffs theory] splits apart the field of negligence in hazardous employments, and makes futile the law’s pronouncement that it is the exclusive remedy for every phase of extra-hazardous employment, except as by its own terms specified.

* * *

“The statutory definition of injury, which was made compensable without reference to neglect of employer or fault of worker, except when the injury was self-inflicted or the sole result of the intoxication of the employee, and the abolition of the fellow-servant rule, of the defenses of contributory negligence and assumption of risk, and the substitution of a regulated and certain compensation for damages, contribute convincingly to the conclusion that the legislative intent was to include within the act not only the newly created class of compensable injuries, but also every injury which could be suffered by any worker in the course and arising out of the employment, for which there was then a subsisting right of action. E. Baggot Company v. Industrial Commission, 290 Ill. 530, 125 N.E. 254. With this conception of the purpose *34 and effect of the act, the Legislature was consistent in making the prescribed liability of the employer and remedy of the employee exclusive with respect to all injuries sustained in the hazardous employment.

“The decisions of other appellate tribunals, which have not reached our conclusion, were controlled by the wording of their own respective statutes, which will be found to be substantially different from the Maryland act either in phrasing, or in additional or in omitted provisions in respect to or affecting the subject under discussion. If the decisions of these courts were adopted, the Maryland act would undergo an amendment by judicial construction through engrafting upon it the effect of the particular provisions of the foreign acts.”

Limiting accidental injury coverage to those accidental injuries arising out of unusual conditions cannot be reconciled with the breadth of the statute described in the above-quoted language.

Next, the Court in Victory Sparkler dealt with the plaintiffs argument that her illness was an occupational disease. The respondent in the case at bar asserts that the Victory Sparkler Court “did not consider ... the breadth or limitations of the term ‘accidental injury’ because it was dealing with the negligent leak of a toxic substance into the work place atmosphere, clearly an extraordinary and unusual situation.” (Respondent’s brief at 10). In the following passage, however, the Victory Sparkler Court included an injury arising out of an employee’s “common and regular task[s]” within the ambit of “accidental injuries” covered under the Act. The Court explained (147 Md. at 379-380, 128 A. at 638-639, emphasis added):

“An occupation or industry disease is one which arises from causes incident to the profession or labor of the party’s occupation or calling. It has its origin in the inherent nature or mode of work of the profession or industry, and it *35 is the usual result or concomitant. If, therefore, a disease is not a customary or natural result of the profession or industry, per se, but is the consequence of some extrinsic condition or independent agency, the disease or injury cannot be imputed to the occupation or industry, and is in no accurate sense an occupation or industry disease. In this case, the occupation of the girl as an employee in a department of a manufactory of fireworks was simply a condition of her injury, whose cause was the definite negligence charged against the employer. The most that is warranted to be infeired from the allegations of fact in the declaration is that the phosphorus poisoning alleged was the gradual result of the negligence of the employer. As this negligence was a breach of duty to her, it was not to be foreseen or expected by the worker as something which would occur in the course of her employment. The fact that she continued, at her place of labor; in the doing of her common and regular task, makes it clear that the phosphorous poisoning happened without her design or expectation, and so her injury was accidental. Providence Life Ins. Co. v. Martin, 82 Md. 310, 314, 315....

“It was by chance that employer did not use due care, and by chance that the vapor of phosphorus was where its noxious foreign particles could be inhaled by the girl. It was by chance that the inspired air carried these particles into her system, sickening her, and causing a necrosis of the jaw after fortuitously finding a lesion. The injury thus inflicted upon her body was accidental by every test of the word, and its accidental nature is not lost by calling the consequential results a disease. Nor can the fundamentally accidental nature of the injury be altered by the consideration that the infection was gradual throughout an indefinite period, as this simply implies a slow development of the malady, or that, instead of a single accidental injury, there was a succession or series of accidental injuries culminating in the same consequential results.”

*36 It is significant that the one prior Maryland case relied on by the Victory Sparkler Court for the above-quoted definition of “accidental injury” was Providence Life Ins. Co. v. Martin, 32 Md. 310, 314-315 (1870). In the Providence Life Ins. case, the employee was a locomotive engineer who was stepping between the tender and the first car of a moving train, and was directing the fireman who was backing up the train. The engineer slipped, fell between the moving tender and car, and was killed. He was not engaged in any unusual activity, and nothing unusual caused him to slip. Instead, his slipping was the result of his carelessness. “It [was] a common practice with persons employed on railroads and engaged in the management of trains to pass from car to car, while the train is in motion,” 32 Md. at 314. In holding that the engineer incurred an “accidental injury” for purposes of an insurance policy, this Court stated (id. at 314-315, emphasis added):

“The fact that he slipped and fell in so doing, shows it was an unusual and unexpected result attending the performance of a usual and necessary act. His falling was an event which took place without his foresight or expectation, . and therefore clearly an accident in the common acceptation of the word, and the resulting injury, therefore, within the plain meaning of the terms of his insurance----”

Consequently, what must be unexpected, unintended, or unusual is the resulting injury and not the activity out of which the injury arises.

The Victory Sparkler Court later distinguished the noun “accident” from the adjective “accidental,” explaining that “accidental injury” was broader than “accident” (147 Md. at 381, 128 A. at 639-640):

“It will be observed that the statutory definition of a compensable injury under the Maryland act is not that it is an ‘accident,’ or that it is an injury ‘by accident’ but that it must be ‘accidental injuries.’ The difference is important, as it marks the divergence between the thing or the event (i.e., accident) and a quality or a condition (i.e., accidental) of that thing or event. As the substantive carries the idea of something happening unexpectedly at a time and place, *37 the term ‘accident’ or ‘injury by accident’ has been consistently construed by the courts to embrace two different notions: the first is that of unexpectedness, and the second, that of an injury sustained on some definite occasion, whose date can be fixed with reasonable certainty. The adjective ‘accidental’ is not a technical term but a common one whose popular usage would not necessarily mean that the words ‘accidental injuries’ indicated the existence of an accident, but rather the idea that the injury was either unintended or unexpected. See 25 Harvard Law Review, pp. 338, 342. In the term ‘accidental injuries,’ the substantive ‘injuries’ expresses the notion of the thing or event, i.e., the wrong or damage done to the person; while ‘accidental’ qualifies and describes the noun by ascribing to ‘injuries’ a quality or condition of happening or coming by chance or without design, taking place unexpectedly or unintentionally.”

The Court in the above passage was specifically addressing the employee’s argument that her injuries were outside the scope of the Act because the Act only covers “accidents.” The Victory Sparkler Court responded by pointing out that the Act covers “accidental injuries,” not just “accidents.” The Court went on to define the adjective “accidental” in the above-quoted passage. In the case at bar, Ms. Harris’ injuries are clearly within Victory Sparkler’s definition of “accidental injuries,” which requires that the injuries happen “by chance or without design, taking place unexpectedly or unintentionally.” Victory Sparkler, 147 Md. at 381, 128 A. at 640. This language was also used to ensure that the injury did not fit within the Act’s two express exceptions to compensation, namely: (1) injuries “occasioned by the wilful intention of the injured employee” and (2) injuries “resulting] from the intoxication of the injured employee while on duty.” Victory Sparkler, 147 Md. at 374, 128 A. at 637. In the instant case, Ms. Harris’s injuries occurred by chance and were completely unexpected and unintentional. They were neither wilfully self-inflicted nor the result of being intoxicated while on duty.

The Court in Victory Sparkler concluded as follows (147 Md. at 382, 128 A. at 640):

*38 “The Maryland act is remedial and should receive a liberal construction so as to give to it the most beneficial operation; and when it contains positive direction that should ‘be so interpreted and construed to effectuate its general purpose,’ the Court must act under the compulsion of this mandate, and not disappoint an explicit provision, plainly expressed .... ”

The requirement that an accidental injury, arising out of and in the course of employment, must also arise out of unusual activity for there to be coverage, directly conflicts with this “mandate” set forth in Victory Sparkler. Instead of a “liberal construction so as to give to it the most beneficial operation,” the respondent’s position makes the Maryland Act the most restrictive in the nation.

The first opinion by this Court relied on by the respondent is Standard Gas Equipment Corp. v. Baldwin, 152 Md. 321, 136 A. 644 (1927). Standard Gas Equipment was a workers’ compensation action and not a tort action. Nevertheless, like Victory Sparkler, the issue in Standard Gas Equipment was not whether an injury resulting from a particular unintended event or condition was covered as an accidental injury. Instead, the issue was whether the employee’s injury resulted from a pre-existing disease or from an accidental injury.

The employee in Standard Gas Equipment “was an iron moulder in the foundry room” of the corporation who worked “under unusual stress owing to the extreme heat,” and who had pre-existing heart disease. 152 Md. at 323, 328, 136 A. at 645, 647. “The evidence [was] that the occupation was dangerous for a man with [the employee’s] disease, of which, so far as the record shows, he was unaware.” 152 Md. at 330, 136 A. at 647. On the day he died, the employee was carrying a ladle of molten iron from the furnace when some of it spilled, burning his clothing, left arm, left leg, and buttocks. He died on the way to the hospital because of “the dilation of his heart.” There was some medical evidence that the death from heart disease was accelerated by the shock resulting from the bums, “although such shock would not have caused his death except for the condition of his heart.” 152 Md. at 328, 136 A. *39 at 647. There was also evidence that working under the stress of the extreme heat in the foundry may have contributed to the death by heart disease. Although the majority of the Court reversed an award for the employee because of the form of the verdict, the majority awarded a new trial and held that, because of the above-summarized evidence, the jury could find that the death due to heart disease was an accidental injury covered by the Workers’ Compensation Act. The dissenting opinion, however, took the position that any “slight exertion” would have caused the employee’s death from heart disease, that “his employment required him to work in [the] heat,” that this was “merely a common incident of [the] employment,” and that his death did not “aris[e] out of and in the course of [his] employment” but resulted from an “anteri- or” disease. 152 Md. at 331, 136 A. at 648.

Nothing in the Court’s Standard Gas Equipment opinion supports the view that an injury resulting from an unintended event or condition, which arises out of and in the course of employment, is not a covered accidental injury. The issue in Standard Gas Equipment was whether the employee died from a pre-existing heart disease or from an injury arising out of and in the course of employment. The Court in Standard Gas Equipment was simply setting forth a theory by which the employee’s death might not entirely be the result of a preexisting disease. As the dissent in Standard Gas Equipment pointed out, the Court was willing to allow a jury to find that the employee’s injury was accidental, even though his disease “existed wholly independent of and anterior to the hiring by his employer.” 152 Md. at 331, 136 A. at 648.

The next case relied on by the respondent is Slacum v. Jolley, supra, 153 Md. 343, 138 A. 244. Slaeum appears to be the first opinion of this Court which injected into the definition of “accidental injury” a restrictive requirement that the injury, to be covered, must result from “unusual activity.” In Slaeum, the employee, Mr. Jolley, was a bus driver who became ill and died after driving a bus on a hot June day. The Court in Slacum stated (153 Md. at 351, 138 A. at 248, emphasis added):

*40 “ ‘But to entitle the claimant to compensation, it was essential that there be at least some evidence that her husband died of heat stroke or heat prostration and that such injury was occasioned by some unusual and eoctraordinary condition in his employment not naturally and ordinarily incident thereto and there is no such evidence in this case.’ ”

The Slacum opinion cited no case, in Maryland or elsewhere, for the above-quoted statement. In fact, except for a few cases on unrelated procedural issues, the Slacum opinion cited no case-law whatsoever.

As previously indicated, the decision in Slacum v. Jolley represents an extreme minority view and has been criticized. See, e.g., Baltimore & O.R. Co. v. Clark, supra, 59 F.2d at 597. The notion that an injury or death of an employee, caused by a continuing heat condition in the place of employment, is not an accidental injury arising out of the employment, is contrary to the plain meaning of the term “accidental injury.”

The first case after Slacum v. Jolley to apply the Slacum holding was Miskowiak v. Bethlehem Steel Co., supra, <