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“Positional-Risk” Test and the “Coming and Going” Test in Maryland Workers’ Compensation Claims

Posted on: February 3, 2014

The recent Court of Appeals decision in Roberts v. Montgomery County, a Maryland workers’ compensation case, is a great illustration of two legal tests that apply to Maryland workers compensation claims. A legal test is a rule or device used by the court to make distinctions from one case to another. This case shows how the legal issues in Maryland workers’ compensation cases can be very complex, particularly when an employee is injured off-site. These cases will require the help of an experienced Maryland workers’ compensation attorney.

The Two Tests
The legal tests at issue in the case are the “coming and going” test and the “positional-risk” test. The coming and going test, often called the coming and going rule, has been used by Maryland courts to distinguish between workers that are injured on the job and workers that are injured while coming and going to work. In Maryland, workers that are injured while commuting to and from work are generally not eligible for workers’ compensation.

The positional-risk test is another test that asks whether an employee’s injuries would have occurred “but for” the conditions and obligations of employment. This test is typically used when an employee is engaged in an activity that is related to employment, but is neither at his or her regular place of work, nor engaged in a clearly defined job duty. For example, the positional-risk test has been used to determine that the injuries of an employee who was injured while traveling to attend a seminar at her employer’s request were compensable.
Lower Courts’ Decisions and the Coming and Going Test

Mr. Roberts was a paid firefighter for Montgomery County, and at the time of the accident he was stationed at the fire department headquarters in Rockville, Maryland. Previously, he had been stationed at Fire Station 19 in Silver Spring, Maryland. As part of his duties, Mr. Roberts was encouraged to spend time doing physical training each day.

One day, after spending some time doing physical training at a local high school, Mr. Roberts decided to ride his motorcycle to Fire Station 19, in Silver Spring, in order to check his work mail. On his way to Fire Station 19, Mr. Roberts was in a motorcycle accident and was injured. Mr. Roberts claimed workers’ compensation benefits for his injuries.
The Maryland Circuit Court and Maryland Court of Special Appeals both held that Mr. Roberts was not entitled to workers’ compensation benefits because he was merely “coming and going” to work. The Court of Special Appeals paid particular attention to the fact that Mr. Roberts was only at work when he was at the fire department headquarters, and that he did not show sufficient evidence to prove that checking his mail at Fire Station 19 was part of his required work duties.

Decision of the Court of Appeals and the Positional-Risk Test
Mr. Roberts then appealed to the Court of Appeals of Maryland. The Court of Appeals found that the coming and going test did not apply to Mr. Roberts’ situation. Instead, the Court of Appeals applied the positional-risk test, which asks whether the injury would have been sustained but for the conditions and obligations of employment.
Essentially, the positional-risk test determines whether there is a connection between the injury and the employment. The Court of Appeals noted that Mr. Roberts was traveling from a work-related activity to a site where he was about to engage in a work-related act, thus his injuries fell within the scope of the test and he was able to receive compensation.

Justin Katz is a personal injury lawyer who represents injury victims in Maryland, Virginia and Washington DC
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