Hodgson v. Flippo Construction Co.9/15/2005
Dixon, 107 Md. App. 541, declaring that "if an employee works outside the State but does not work wholly outside the State, then the employee's work outside the state is said to be casual." Id. at 242. "Our finding that Pohopek regularly works outside the State," we reasoned, "is inherently a finding that Pohopek does not work wholly outside the State and, therefore . . . Pohopek's work outside the State must be interpreted as casual." Id. In sum, we avowed, "Until there is a finding of casual employment within the State, the only determinative status of work outside of the State is either `whole' or `casual.'" Id. at 242-43.
When this matter reached the Court of Appeals, it agreed with the conclusion of this Court that Pohopek was "regularly employed" in Maryland, commenting:
The respondent [Pohopek] begins, and ends, his work week in Maryland and the [employer's] tractor-trailer is kept in Maryland ... the respondent is charged with its safekeeping and the safekeeping of any cargo that it might contain. Moreover, the respondent is responsible for the maintenance of the tractor-trailer. We believe these facts and circumstances suffice to establish that the respondent's employment in Maryland, rather than being "casual," was "regular." This is consistent with the holding of the Court of Special Appeals, which, as we have seen, relying on the definition of "regular" enunciated in Dixon, i.e. "A uniform course of conduct," was persuaded by the consistency of the respondent's schedule and job responsibilities.
Pohopek, 375 Md. at 592 (quoting Pohopek, 140 Md. App. at 240-41; Dixon, 107 Md. App. at 549).
Had it chosen to do so, the Court of Appeals could have stopped there and affirmed the decision of this Court, based upon the rationale of this Court, that only employment "wholly" outside the State would preclude a compensation award to an employee regularly employed in the State. But the Court did not. Choosing instead to take another path to the same destination, it introduced a comparative test for trucking and certain other "transitory" types of employment. Stressing the unique nature of trucking, which, like "`flying, selling, or construction work'" is transient in nature, Pohopek, 375 Md. at 593, it quoted with approval the following language from 9 A. Larson & L. Larson, Workers' Compensation Law ยง 143.04 (2003):
"In some kinds of employment, like trucking, flying, selling, or construction work, the employee may be constantly coming and going without spending any longer sustained periods in the local state than anywhere else; but a status rooted in the local state by the original creation of the employment relation there, is not lost merely on the strength of the relative amount of time spent in the local state as against foreign states. An employee loses this status only when his or her regular employment becomes centralized and fixed so clearly in another state that any return to the original state would itself be only casual, incidental and temporary by comparison. This transference will never happen as long as the employee's presence in any state, even including the original state, is by the nature of the employment brief and transitory."
Id. at 593-94.
It then noted that, in Maryland, the "dispositive factor" for determining "the situs of employment relation" for jurisdictional purposes is not "where the employment was contracted," as Larson and several other jurisdictions would have it, id. at 594, but "whether the employment in Maryland is regular, compared to the employment outside Maryland." Id. "That comparison, when the employment itself is transitory, is between where the employment has been found to be re
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