Board of Trustees v. Novik

WENNER, Judge. Appellee, Donna B. Novik, was granted accidental disability retirement benefits by a Hearing Examiner of the Employees’ Retirement System of the City of Baltimore (the Examiner). The Board of Trustees of the Employees’ Retirement System of the City of Baltimore appealed that decision to the Circuit Court for Baltimore City. The circuit court affirmed the decision of the Examiner. Appellant now asks us whether the circuit court erred in determining that the Examiner’s decision was not arbitrary, illegal, capricious or discriminatory. For reasons we will explain, we shall affirm the decision of the circuit court. BACKGROUND Appellee began in 1986 as an administrative secretary with the Division of City Builders of the City of Baltimore. On January 13, 1988, she was injured when she slipped and fell on ice as she walked from her car in the parking lot provided by her employer to the building in which she worked. Appellee immediately reported her injury to her employer. Her supervisor accompanied her to the Occupational Medicine Clinic where x-rays were taken. A fracture — 311 — at the sacrococcygeal area was suspected, and appellee was referred to Dr. Louis S. Halikman, an orthopedic surgeon. Dr. Halikman concluded that appellee had sustained a contusion of the coccyx as a result of her fall. Nevertheless, he was unable to determine with certainty if a fracture of the coccyx had occurred. Despite Dr. Halikman’s initial opinion that appellee would be able to return to work in “a week or two,” she continued to experience lower back pain. Appellee remained under the care of Dr. Halikman for several months. She underwent physical therapy and numerous diagnostic procedures, including magnetic resonance imaging of her lumbar spine. Believing that anxiety played an important role in appellee’s symptoms, Dr. Halikman prescribed Elavil, an anti-depressant, and Xanax to reduce tension. He referred her to a psychiatrist. She saw two psychiatrists. They both opined that there was a connection between appellee’s failure to recover and psychological problems. Appellee was seen on several occasions by Dr. J. Michael Anderson, a chronic pain specialist at the Industrial Rehabilitation Center of Sinai Hospital. He believed that appellee’s continued pain was associated with pelvic floor myalgia syndrome. Dr. David Kresiberg, an orthopedic surgeon who served as appellant’s expert, opined that appellee suffered from chronic back pain of unknown etiology and that she was likely permanently disabled. He noted her coccyx fracture and a significant psychiatric history. Appellee’s expert, Dr. Weerasak Lima, reported that she suffered from a “fracture of the coccyx with chronic pain syndrome.” Dr. Lima estimated that appellee had a 50% permanent partial impairment of her hip and leg and a 50% impairment of her back, for a 50% impairment of the whole person. At the time of the hearing, appellee was employed in private industry as a part-time typist with a company which had “no problem with ... [her physical] limitations.” She testified that she continued to experience limited mobility; — 312 — dull, aching discomfort in her lower back; and a great deal of discomfort in her left thigh and knee. The Examiner found appellee suffered an injury which precluded her from further performance of the duties of her job and that her physical incapacity was the result of an injury arising out of and in the course of actual performance of those duties. Consequently, he granted appellee’s request for accidental disability retirement, and the circuit court affirmed it. This appeal followed. STANDARD OF REVIEW The standard of review applicable to decisions of administrative agencies is quite limited. Citizens for Rewastico Creek v. Commissioners of Hebron, 67 Md.App. 466, 470, 508 A.2d 493, cert. denied, 307 Md. 260, 513 A.2d 314 (1986). The reviewing court must examine the agency’s fact-finding. It must not substitute its fact-finding for that of the agency. Insurance Comm’r v. Nat’l Bureau, 248 Md. 292, 309, 236 A.2d 282 (1967). As the agency is considered an expert, its decisions presumably are correct. Citizens, 67 Md.App. at 470, 508 A.2d 493. Ordinarily, in reviewing an administrative decision, a court shall determine (1) the legality of the decision and (2) whether there was substantial evidence from the record to support the decision. Balto. Lutheran High School v. Employment Security Administration, 302 Md. 649, 662, 490 A.2d 701 (1985). In other words, could a reasoning mind reasonably have reached the factual conclusion reached by the Examiner. Bulluck v. Pelham Wood Apts., 283 Md. 505, 512, 390 A.2d 1119 (1978). It is within the Examiner’s province to resolve conflicting evidence. Where conflicting inferences can be drawn from the same evidence, it is for the Examiner to draw the inferences. Bulluck, at 513, 390 A.2d 1119. — 313 — DISCUSSION Appellant contends that the Examiner erred in two ways when he awarded accidental disability benefits to appellee. First, appellant maintains that the Examiner erred as a matter of law when he found, contrary to the language of the applicable City Code, that appellee suffered an “injury arising out of and in the course of actual performance of duty.” Second, appellant contends that the Examiner erred in awarding benefits to appellee because the evidence is insufficient to support appellee’s claim that her alleged disability was a direct result of the accidental injury she sustained when she fell on the ice. As we find no merit in either of appellant’s contentions, we shall affirm the judgment of the circuit court. We discuss appellant’s contentions in turn. A. According to Article 22, Section 9(j) (1987 Supp.) of the Baltimore City Code, a claimant may be awarded accidental disability benefits if the claimant suffers an accident and subsequent impairment which is determined to be the direct result of bodily injury through such accident independent of all other causes and independent of any preexisting physical or medical conditions, job-related or otherwise, occurring while in the actual performance of his duty with the City at a definite time and place, without willful negligence on the part of the Member____ (Emphasis added.) The Workers’ Compensation Act, Md.Ann.Code Art. 101 § 15 (1951, 1985 Repl.Vol.) provides Every employer subject to the provisions of this article, shall pay or provide as required herein compensation according to the schedules of this article for the disability or death of his employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of his employment____ (Emphasis added.) — 314 — Initially we note that Maryland courts have distinguished the terms, “out of” and “in the course of.” “Out of” refers to the cause or origin of an accident. “In the course of,” relates to the time, place and circumstances under which an accident occurred. Wiley Mfg. Co. v. Wilson, 280 Md. 200, 205, 373 A.2d 613 (1977); Proctor-Silex v. DeBrick, 253 Md. 477, 480, 252 A.2d 800 (1969). Analogies to workers’ compensation statutes are frequently helpful in pension cases. Appellant reminds us that the Court of Appeals cautioned that any analogy must be drawn keeping clearly in mind the difference between the workmen’s compensation test, Maryland Code (1957, 1964 Repl.Vol.) Art. 101 § 15, “... an accidental personal injury sustained by the employee arising out of and in the course of his employment ...” and the language of the Baltimore City Code (1966) Art. 22 § 6(e), “... any member who has been totally and permanently incapacitated for duty as the natural and proximate result of an accident occurring while in the actual performance of duty____” Board of Trustees v. Grandinetti, 269 Md. 733, 738, 309 A.2d 764 (1973). In Grandinetti, however, the Court focused on the distinction between injuries “arising out of ... employment” resulting in eligibility for workers’ compensation as opposed to accidental injuries leading to benefits under the City Code. Prior to Grandinetti, the Court “recognized a striking analogy between the terms ‘in the actual performance of duty’ and ‘out of and in the course of his employment.’ ” Police Comm’r v. King, 219 Md. 127, 134-135, 148 A.2d 562 (1959). The phrase “in the actual performance of duty” has been treated as legally equivalent to the language of the Workers’ Compensation Act. Rumple v. Henry H. Meyer Co., Inc., 208 Md. 350, 357, 118 A.2d 486 (1955); Heaps v. Cobb, 185 Md. 372, 383, 45 A.2d 73, 78 (1945). Appellant urges us to define the “actual performance of duties” test strictly and literally, to preclude disability bene — 315 — fits unless the disabling injury occurred while the employee was physically at her work station engaged in typing, filing, or performing some other required task. Under that view, no recovery would be permissible if the injury occurred even during a temporary interruption — going to the restroom, sipping a cup of coffee, chatting momentarily with a co-worker. Such a construction, we think, would be not only unreasonable but extremely difficult to administer. The “actual performance” test must contemplate the reality of the workplace and include conduct that is permissible, commonly engaged in by employees, and reasonably incidental to the performance of the employees’ duties. An employee’s presence on the employer’s property while proceeding to or from his or her work station could fairly be regarded as being within that test. The record indicates that appellee had parked her car on a lot reserved for City employees and was proceeding from that lot directly to her workplace when the injury occurred. In concluding that appellee was entitled to benefits, the Examiner obviously determined that her proceeding to work in that circumstance was sufficiently incidental to the actual performance of her duties for the City. Although the Examiner expressed his conclusion that the injury arose “out of and in the course of actual performance of duty,” as the key focus was on “actual performance,” the difference is inconsequential. We cannot say that the Examiner’s conclusion was erroneous as a matter of law or was arbitrary or capricious. B. Finally, appellant contends that even if the Examiner judged appellee’s claim by the proper standard, the record contained insufficient evidence to support his finding that appellee’s disability is the “direct result of bodily injury arising through an accident which occurred while appellee was engaged in the actual performance of duty.” — 316 — There were before the Examiner conflicting medical evaluations of appellee. Psychiatric reports indicated that appellee had pre-existing functional problems in her life which could prevent her recovery. Appellee’s principle orthopedic surgeon, Dr. Halikman, expressed confusion about the cause of her condition. Nevertheless, he said that he believed appellee’s complaints of chronic pain. Experts for both parties opined that appellee was permanently disabled because of her injury. When, as in the case sub judice, there are conflicting inferences that can be drawn from the evidence, we must defer to the decision of the Examiner. Bulluck, 283 Md. at 513, 390 A.2d 1119. Here, the Examiner concluded that appellee’s disability resulted from her accidental fall on the ice. There was no error. JUDGMENT AFFIRMED. COSTS TO BE PAID BY APPELLANT.