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Appeals & Decisions
 
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Case Information

Summary

W.R. Grace & Co., et al v. Andrew P. Swedo, Jr.
Court of Appeals No. 82, September Term 2013
Opinion by Adkins, J. (July 22, 2014)
MD. CODE (1991, 2008 REPL. VOL.), § 9-633 OF THE LABOR AND EMPLOYMENT ARTICLE –– AWARD FOR PERMANENT PARTIAL DISABILITY REVERSED OR MODIFIED ON APPEAL –– CREDIT FOR COMPENSATION PREVIOUSLY AWARDED AND PAID: Because the Workers’ Compensation Act clearly defines compensation as money, an Employer/Insurer should be credited for the total dollars previously paid under an award when that award is modified on appeal. This differs from the credit given in a reopening case, which is measured by weeks.
Luther Gales, III v. Sunoco, Inc. and American Zurich Insurance
Court of Appeals No. 99, September Term 2013
Opinion by Adkins, J. (October 23, 2014)
An appellant in a de novo workers’ compensation jury trial is not required to move the Commission decision into evidence.
Richard A. Elms v. Renewal By Andersen
Court of Appeals No. 89, September Term 2013
Opinion by Greene, J. (July 21, 2014)
In a workers’ compensation case, the first inquiry is whether a common law employer/employee relationship exists between the injured worker and his or her direct employer. When making this inquiry, the most important and decisive factor is whether the alleged employer has the right to control the employee in the manner of the employment. If it is determined that the injured worker is a “covered employee,” but the injured worker is unable to recover compensation benefits through his or her direct employer, we then look to Maryland Code (1991, 2008 Repl. Vol., 2013 Cum. Supp.), § 9-508 of the Labor and Employment Article. Under § 9-508, when certain conditions are met, a principal contractor is a “statutory employer,” and is therefore liable to the employee of a subcontractor for injuries sustained during the course of the work undertaken by the principal contractor and subcontractor(s). Where an employer/employee relationship is established under the traditional common law test, application of § 9-508 is inappropriate.
Dallas E. Gravette v. Visual Aids Electronics, et al.
COSA No. 291, September Term 2013
Opinion by Salmon, J. (April 29, 2014)
The court concluded that a traveling employee who is engaged in reasonable and foreseeable recreational activities when injured, is entitled to recover workers’ compensation benefits for his injuries because such recreational activities are “reasonably incident to travel.” Mulready, 360 Md. at 366. Because the employee was engaged in reasonable and foreseeable recreational activities when injured, he was therefore entitled to recover.
Phuonglan Ngo v. CVS, Inc., et al.
COSA No. 708, September Term 2012
Opinion by Salmon, J. (September 25, 2013)
The Court held that a claimant who has reached maximum medical improvement may not receive
temporary total disability benefits under the Maryland Workers’ Compensation Act.
Montgomery County, Maryland v. Brenda O. Robinson
Board of Education of Montgomery County, Maryland v. Jamie Anderson
Court of Appeals No. 68, September Term 2010
Opinion by Bell, C.J. (retired) (September 27, 2013)
Court of Appeals held that Workers’ Compensation Commission could combine awards for scheduled injuries with awards for other cases for the purpose of determining whether the second tier compensation rate was applicable, where the legislative intent underlying the Workers’ Compensation Act manifested the intent for such a result.
Andrew P. Swedo, Jr. v. W.R. Grace & Co., et al.
COSA No. 998, September Term 2011
Opinion by Salmon, J. (05.01.13)
LE § 9-633 requires that a dollar credit rather than a weeks credit methodology should be utilized where an award of permanent partial disability compensation was modified on appeal.
Washington Metropolitan Area Transit Authority v. Robert M. Washington
COSA No. 769, September Term 2011
Opinion by Zarnoch, J. (03.21.13)
In determining wage loss in industrial loss of use, profits derived from a business are not to be considered as earnings and cannot be accepted as a measure of loss of earning power unless they are almost entirely the direct result of the claimant’s personal management and endeavors.
Felix L. Johnson, Jr., Deceased v. Mayor and City Council of Baltimore
No. 45, September Term 2012
Opinion by Barbera, J.Bell, C.J., Harrell and Cathell, JJ., dissent (2.25.13)
STATUTORY INTERPRETATION — WORKERS’ COMPENSATION BENEFITS — PAYMENT OF DUAL PENSION AND WORKERS’ COMPENSATION BENEFITS TO DEPENDENTS OF DECEASED CLAIMANT The General Assembly amended the Maryland Workers’ Compensation Act in 2007 to allow the surviving dependents of a firefighter or other specified public safety worker who died as a result of an occupational disease to collect both the deceased employee’s retirement and workers’ compensation benefits, up to the amount of the employee’s weekly salary at the time of his or her death. There is no express language in the amendments to Maryland Code (1999, 2008 Repl. Vol., 2012 Supp.), § 9-503(e) of the Labor and Employment Article, indicating that they applied retroactively. The change to the statute was substantive, not procedural or remedial, because it enlarged the potential class of beneficiaries. Given the presumption that substantive changes in the law apply prospectively, claimants who sought dual benefits prior to the 2007 amendments are not able to collect up to the amount of a deceased employee’s weekly salary, but instead must have their benefits reduced by the general offset provision in § 9-610 of the Labor and Employment Article.
McLaughlin v. Gill Simpson Electric, et al.
CSA No. 376 September Term 2011
Opinion by Watts, J. (06.29.12)
Withdrawal of the Issues filed in conjunction with the Petition to Reopen constitutes a withdrawal of the petition.

Washington Metropolitan Area Transit Authority v. Jan Williams
CSA No. 2316 September Term 2010
Opinion by Meredith, J. (04.26.12)

A subsequent injury is covered as an extension of the prior covered injury if the first injury proximately caused the second injury. In other words, the result could have been caused by the first injury and there has not intervened, between the first injury and the second injury, any other efficient cause. There must be a direct causal connection between the original accidental injury and the subsequent injury.
Potomac Abatement, Inc., et al. v. Edy Sanchez
CSA No. 56 September Term 2011
Opinion by Adkins, J. (02.21.12)
Under Md. Code Ann., Lab. & Emp. § 9-736(b), the Workers’ Compensation Commission retains jurisdiction to hear new issues while other issues in the same claim are pending on appeal, so long as no evidence was taken or decision made on the new issues in the hearing from which the appeal was taken. LE § 9-742 was not intended to reduce the Commission’s ongoing jurisdiction to grant relief, notwithstanding the appeal.
Edy Sanchez v. Potomac Abatement, Inc., et al.
CSA No. 569 September Term 2009
CSA No. 504 September Term 2010
(Consolidated Cases)
Opinion by Zarnoch, Jr. (04.27.11)
Md. Code Ann., Lab. & Emp. § 9-742 does not deprive the Commission of jurisdiction while a previous award is on appeal, and the agency retains jurisdiction if the new claim is properly authorized under LE § 9-736(b). See Potomac Abatement, Inc., et al. v. Edy Sanchez, CSA No. 56 September Term 2011
Pro Football, Inc., et al. v. Thomas Tupa, Jr.
CSA No. 1839 September Term 2009
Opinion by Zarnoch, J. (02.28.11)
When a claimant is a covered employee under Md. Code Ann., Lab. & Emp. § 9-203, Maryland has jurisdiction over the individual’s workers’ compensation claim and a forum selection clause in the employment contract, requiring him to file his workers’ compensation claim in Virginia, contravened Maryland’s public policy - compensation may not be denied because of the degree of risk associated with the employment.
Jeffrey Lecronier v. United Parcel Service, et al.
CSA No. 02650 September Term 2008
Opinion by Kehoe, J. (11.03.10)
Venue can be based upon a residence or the place where the individual regularly conducted business or is employed.
Wal*Mart Stores, Inc. et al. v. Larry Holmes et ux.,
COA No. 141 September Term, 2009
Opinion by Greene, J.  (10/25/2010)
When a surviving spouse asserts a claim for permanent disability benefits according to the Maryland Workers’ Compensation Act, Md. Code (1991, 2008 Repl. Vol.) § 9-632 of the Labor and Employment Article, that spouse must either show dependency, as defined in the Act or in case law, or, alternatively, evidence of a legal obligation of support that was owed to him or her by the decedent, covered employee. A legal obligation of support is one that arises either by an order or decree from a court of competent jurisdiction, or from a legally enforceable agreement between the spouses.

Valerie J. Willis v. Montgomery County, Maryland,
COA No. 138, September Term, 2009
Opinion by Harrell, J. (08.25.2010)

The Workers' Compensation Commission's decision to not refer a person to the Insurance Fraud Division pursuant to MD Code (1999, 2008 Repl. Vol.) Labor and Employment Article § 9-310.2 is not subject to judicial review because it is not a final administrative order.
Schlosser, et al. v. Uninsured Employers' Fund, et al.
COA No. 112, September Term 2009
Opinion by Battaglia, J. (05.12.10)
Principal contractor not liable to pay workers’ compensation benefits to a subcontractor’s employee who worked wholly outside of Maryland when injured on the job.
Anderson/Robinson v. Montgomery County
COSA No. 2853 (2008) and 0604 (2009)
Opinion by Meredith, J. (05.06.10)
Neither the plain language nor the legislative history of §9-629 supports the contention that the Commission is precluded from considering the total compensation awarded as a consequence of a single accident in making its determination of whether the second-tier compensation benefit rate is applicable.
Wilson v. Shady Grove
COSA No. 2588, Sept. Term, 2008
Opinion by Davis, J., (03.31.10)
Evidence, at a minimum, must establish beyond mere conjecture or guess that the injury could have caused the consequence and that there was no other intervening cause.
Granite State v. Hernandez
COSA No. 2497, September Term, 2008
Opinion by Thieme, J., (03.30.10)
Where no reasonable inference from the facts supports a Commission finding, a Circuit Court decision affirming the Commission is erroneous whether based upon the presumption of correctness or an independent evaluation of the evidence.
Darby v. Marley Cooling Tower, Co., et al.
190 Md.App. 736 (03.01.10)
Maryland Rule 7-203(b) presupposes need for a cross-appeal from portion of administrative agency decision aggrieving cross-appellant.  A non-petitioning party has no protected interest in the continuation of a matter at the circuit court after the petitioning party chooses to unilaterally and voluntarily dismiss the petition.
Holmes v. Wal Mart(cert. granted)
187 Md.App. 690 (09.02.09)
Under §9-632(d) a deceased workers' right to permanent partial disability benefits survives to his or her spouse unless the surviving spouse has agreed to or has been adjudicated to have given up his or her right of support.
Montgomery County v. Willis
187 Md.App. 514 (08.28.09)
A decision by the Commission to grant or deny a request for a referral pursuant to LE §9-310.2 is a final appealable order, from which a party has the right to seek judicial review.
Bridgett v. Montgomery County
186 Md.App. 616 (07.07.09)
A Commission decision as to compensability is prima facie correct and not subject to a Motion for Summary Judgment if it is supported by a minimum of evidence. 
UEF v. W.M. Schlosser Co., Inc.
(Rev'd. Schlosser v. UEF (May 12, 2010))
186 Md.App. 599 (07.07.09)
An injured workers' status as a covered employee under LE §9-203(a) is not undone by virtue of LE §9-508.  The concept of statutory employer liability was designed to provide an injured worker with an award of compensation from either the subcontractor or the principal contractor and, irrespective of which he chooses to pursue, the awards are to be alike in every respect.
Simmons v. Comfort Suites
185 Md.App. 203 (2009)
The determination whether a device or service constitutes medical treatment under the statute should not be based, as a matter of law, on whether the device or service is inherently medical in nature. Rather, where there is a recommendation from a medical professional that a device or service be provided because it will provide a medical benefit, the determination whether it is compensable medical treatment is a question of fact that should be determined under the circumstances of the particular case.

White v. Maryland
CSA No. 1960, Sept. Term 2007
Opinion by Salmon, J. (December 3, 2008)

Negligence: [P]olice officers and firefighters are precluded from recovery for acts of negligence that injure them so long as the officer or firefighter is injured while performing an obligation of his occupation and so long as there is a causal relationship between the manner of performing his job and the manner of injury.

George Maldonado v. American Airlines
405 Md. 467 (2008)

WORKERS’ COMPENSATION – EXPERT TESTIMONY
The Workers’ Compensation Commission determined that George Maldonado sustained a permanent partial disability of “50% under ‘Other Cases’ industrial loss of the body as a result of the injury to the back and psychiatric (serious disability).” Subsequently, a jury, in a judicial review proceeding, reduced the percentage of loss to 35%. Maldonado argued before both the Court of Special Appeals and the Court of Appeals that any party who disputes a Commission decision under “Other cases” industrial loss must present the testimony of a vocational expert during a judicial review proceeding in order to rebut the presumption of correctness of a Commission award. The Court of Special Appeals affirmed the reduction in award. The Court of Appeals also affirmed, holding that the testimony of a vocational expert is not a sine quo non requirement to rebut the presumption of correctness of a Workers’ Compensation Commission award under “Other cases” industrial loss and that expert vocational testimony was not required in this case, where the jury was presented with sufficient evidence from which to determine industrial loss.

Youngblud v. Fallston Supply Co.
180 Md.App. 389 (2008)

Injuries resulting from a risk or condition personal to the claimant (an idiopathic condition) do not arise "out of" the employment and are not compensable provided that the employment does not aggravate or contribute to the risk.

Yingling v. Millenium Inorganic Chemicals
180 Md.App 124 (2008)

Payment of regular wages while attending an IME is not considered reimbursement of wages under LE 9-667.

Giant Food LLC v. Eddy
179 Md.App. 633 (2007)

WORKERS COMPENSATION
Section 9-736 requires that a request to modify an award must be filed within 5 years after the last compensation payment and where all issues have been resolved jurisdiction may not be retained for the purpose of tolling the statute of limitations.

Dove v. Montgomery County Board of Education
178 Md.App. 702 (2008)

When a claimant files a request for modification of an award of compensation, the claimant does not have to produce all necessary medical documentation at the time of the filing of the request, but must produce such documentation at the time of the hearing before the Commission and it must show that a change in disability occurred during the period covered by the applicable statute of limitations.

Andrew A. Smigelski d/b/a Columbia Roofing & Home Improvement v. Potomac Insurance Company of Illinois
403 Md. 55 (2008)

WORKERS’ COMPENSATION - Where an insurance policy excludes coverage outside Virginia for activities for which the employer would require separate coverage, and the injured employee is a regular employee of a statutory employer, the injury is not covered. Furthermore, where the law of another state precludes workers’ compensation coverage in that state as a result of the injured worker’s status as an illegal alien, our analysis in Kacur v. Employers Mut. Cas. Co. does not extend coverage to a claim filed in Maryland.

Stachowski v. Sysco Food Services of Baltimore, Inc., et al.
402 Md. 506 (2007)

The term "last compensation payment" is based on the date when the last payment by check was received by the claimant, either directly or by the claimant’s attorney or the claimant’s authorized agent.

Smith v. Howard County,
177 Md.App. 327 (2006)

Disablement:
To prevail on a claim, the claimant was, required to produce some evidence, even if minimal, to demonstrate: (1) that the alleged occupational disease is inherent in the nature of the work performed; (2) that his injuries were causally related to his performance of that work; and (3) that as a result, he was incapacitated as of the date of his alleged disablement.

Green v. Carr Lowery Glass Co. Inc., et al.
398 Md. 512 (2006)

Covered employee entitled to benefits under LE § 9-660 for occupational deafness only if the hearing loss is compensable under LE §§ 9-505 and 9-650.

Wilson v. Nationwide
395 Md. 524 (2006)

The Court of Special Appeals was correct in reversing the Circuit Court for Carroll County’s decision that the fellow employee exclusion contained within an automobile liability insurance policy is invalid. We hold that a business auto insurance policy that contains a fellow employee exclusion is invalid to the extent that it provides less than the minimum statutory liability coverage. The fellow employee exclusion is a valid and enforceable contractual provision as to coverage above the minimum statutory liability limits of Maryland’s compulsory automobile insurance law.
Thompson v. Baltimore County,
169 Md. App. 241 (2006)
Circuit Court's decision granting motion for summary judgment to Appellee (Employer/Insurer) on grounds that Appellant's (Claimant's) failure to file a written response to motion erroneous where filings of moving party contain a dispute of material fact.  Non-moving party entitled to rely on favorable decision of Commission without presenting additional evidence.
Kantar v. Grand Marques Café,
169 Md. App 275 (2006)

Failure of Appellant (Claimant) to present expert medical evidence of worsening of condition caused by accident-related conditions entitled Appellees (Employer/Insurer) to judgment as a matter of law.  In discussing the four factors (closeness in time, identical body part, medical testimony and obvious cause and effect) that could present an issue for the jury in a claim of worsening of condition, the Court found that requiring expert medical evidence did not constitute an improper shifting of the burden of proof. 

Food Lion v. McNeill,
393 Md. 715

The testimony of an expert may not be excluded at trial on the basis of a disclosure, made during discovery in response to interrogatories, that has neither been claimed nor determined to be a discovery violation, but that is challenged at trial as deficient for failing to provide information required by Maryland Rule 2-402 (f) (1) (A), the rule governing requests for identities of those individuals whom the opposing party plans to call as expert witnesses at trial.

Griggs v. C&H Mechanical,
169 Md.App. 556

Two-year statute of limitations to file a claim is a condition precedent to the validity of a claim.  Circuit Court in de novo review had authority to base its decision on any relevant matter as to which there was evidence.
Thomas v. Giant Food,
174 Md.App. 103 (2006)
For a worker to receive temporary partial disability compensation, he first must show that his “average weekly wage” exceeds his “wage earning capacity” while he is disabled.  Where worker has multiple employers and sustains an accidental injury arising out of and in the course of employment at job that pays less than other employment, but is not permanently disabled or prevented from engaging in the concurrent employment, he is not entitled to temporary partial disability benefits.
Chance v. WMATA,
173 Md.App. 645 (2006)
In calculating the 30 day-appeal period of Commission orders, the period begins to run on the "date of mailing," under L&E Section 9-737 rather than the date of "service . . . by mail" under Rule 1-203(c).

Hart v. Injury Fund,
172 Md.App. 159 (2006)

There is no requirement under LE section 9-722 that the claimant be advised that she is giving up the right to proceed against the Subsequent Injury Fund when entering into a settlement.

Paul Del Marr v. Montgomery County
397 Md. 308 (2006)

WORSENING - ELEVATION OF DISABILITY FROM FIRST TIER TO SECOND TIER COMPENSATION - CREDIT TO EMPLOYER
When workers' compensation award is increased, by reason of worsening of condition, from the first tier (less than 75 weeks) to second tier (between 75 and 249 weeks) Employer/Insurer is entitled to credit for number of weeks for which compensation was previously paid rather than dollar amount of previous payments.

Terumo Medical Corp. et al. v Greenway
171 Md.App. 617 (2005)
The admission of an expert's opinion is not subject to challenge absent a timely objection or motion to strike appears of record in compliance with Maryland Rule 5-103(a) .

Kelly v. Consolidated Delivery Co.,
166 Md.App. 178 (2005)

FRAUDULENT REPRESENTATION
CL is not precluded from pursuing PPD benefits under section 9-1106(a) where, even though CL was convicted of theft, charges under section 9-1106(a) were nol prossed.
Carlos Hodgson v. Flippo Construction Company, Inc., et al.
164 Md.App. 263 (2005)

REGULAR EMPLOYMENT AND COVERED EMPLOYEE
To be eligible for Maryland workers’ compensation benefits, a claimant must be a “covered employee” under Md. Code (1991, 1999 Repl. Vol.), § 9-203(a) of the Labor and Employment Article (“L.E.”). To be a covered employee under L.E. § 9-203(a)(2), a claimant must be regularly employed within the State while working outside of the State on a casual, incidental or occasional basis.

A comparative test is used to determine whether a claimant is regularly employed in Maryland. The dispositive factor in that determination is whether the employment in Maryland is regular, compared to the employment outside Maryland. That comparison, when the employment itself is transitory, is between where the employment has been found to be regular and each of the other locations to which the employment has a relationship. It is not the whole of the employment outside the State that is considered, but only that in some other State that surpasses casual.

Design Kitchen and Baths, et al. v. Diego E. Lagos
388 Md. 718 (2005)

WORKERS COMPENSATION - EMPLOYERS AND EMPLOYEES
An undocumented worker injured in the course of his employment is a “covered employee” under § 9-202, eligible to receive worker’s compensation benefits.

UEF v. Danner
388 Md. 649 (2005)

The Uninsured Employer’s Fund (“the Fund”) exists as a source of last resort in Maryland to provide workers' compensation benefits to a claimant (and protect that claimant) from an uninsured employer who refuses to pay a workers' compensation award. The Workers’ Compensation Act contains both revenue generating provisions to provide money to pay claimants’ benefits and subrogation rights to the Fund to recover money from claimants, employers and other third parties found to be liable for payments previously made by the Fund Under 9-1002 of the Labor and Employment Article of the Maryland Code, the Fund shall pay a properly presented demand by a claimant for the payment of an award. An appeal or request for review of the status of an alleged statutory employer does not relieve the Fund of an otherwise proper obligation to pay or appeal the original award of temporary total disability benefits to the claimant. The Fund’s erroneous refusal in this case to pay the claimant’s benefits, however, may not be sanctioned by the Commission with a penalty under § 9-728 of the Labor and Employment Article because the Fund does not meet the statutory definition of a party who may be sanctioned. The Commission’s determination that the Fund lacked a reasonable ground for its conduct and consequently should pay the claimant an attorney’s fee of $500 for having to pursue the Fund’s failure to pay was not legal error.

Weatherly v. Great Coastal Express Co., Inc.,
164 Md.App. 354 (2005)

DEPENDENCY
An individual who lived with, but was not married to, deceased EE does not qualify for extended benefits under section 9-681 if that individual continues to be wholly dependent after the $45,000 cap in benefits is attained.
Darden v. Mass Transit Administration,
162 Md.App. 231 (2005)

Claim #1:  55%OC – 12% apportion = 43%OC
Claim #2:  15% left knee
Appeal to cir. ct.: PT due to ##1 & 2, 70% due to #1, 30% (OC/anatomical?) due to #2, 7% PPI (but no hindrance)
Remand to WCC: 
PT – 70%OC due to #1, 30% anatomical due to #2, 7% PPI (SIF) dismissed
Appeal to cir. ct.: 
affirmed
Appeal to CSA: reversed because (1) the WCC ordered the 30% due to #2 to be paid for an anatomical, as opposed to an industrial, loss; had the WCC ordered E/I to pay 30%OC, then (2) the WCC should have ordered the SIF, and not E/I, to pay the 70% due to claim #1, STC for payments made by E/I in claim #1

Maryland Motor Truck Association Workers’ Compensation Self-insurance Group v. Property & Casualty Insurance Guaranty Corp.,
386 Md. 88 (2005)

PRIVATE GROUP SELF-INSURANCE
Because MMTA, a private self-insurance group, is an insurer pursuant to INS sections 1-101(v) and 9-301(d)(2)(i), its claim, filed with PCIGC for payment of excess insurance owed to it by an insolvent insurer, was not a “covered claim” per INS section 9-301(d)(2)(i).

Marshall v. University of Maryland Medical System Corp.,
161 Md.App. 379. (2005)

PERMANENT PARTIAL DISABILITY – APPORTIONMENT FOR SEPARATE INJURIES
The WCC must award PPD at the rates scheduled for the year the AI occurred.  Where separate AI’s occur, the WCC must determine the % of PPD caused by each AI and award compensation accordingly.
Kelly v. Baltimore County,
161 Md.App. 128 (2005)

SUMMARY JUDGMENT
ER appealed a decision by the WCC in CL’s favor on causation, and, in the de novo appeal, CL did not produce any expert medical testimony as to causation.  Where ER bore the burden of establishing a prima facie case of non-causation, and because CL enjoyed the presumption of correction of the WCC’s decision, there was legally sufficient evidence to generate a genuine dispute as to a material fact such that summary judgment in ER’s favor was erroneously granted.

BOARD OF EDUCATION FOR MONTGOMERY COUNTY, MARYLAND v. JOANNIE M. SPRADLIN,
161 Md.App. 155 (2005)

PAST PROLOGUE
Appeal To Circuit Court from the Workers' Compensation Commission.  When, if ever, is the past prologue? - The Workers' Compensation claim - What was "The Commission's Decision"? - The factual dispute before the Commission - A choice of Appellate Strategies - Option #1: An Unadorned Administrative Appeal - Option #2: An administrative appeal plus - The birth of the term "Trial De Novo" in Workers' Compensation Law - A stark contrast in modes of review - Either Party may request De Novo Fact-Finding - A threshold requirement for De Novo review - Both judges and juries may be De Novo fact finders - The multiple sources for De Novo fact-finding - Looking at the prior record alone - The prior record through the lens of fresh argument - Live witnesses, old and new - Why the qualifier "essentially"? - The limited function of the De Novo Jury - The evidentiary consequences of the Presumption of Correctness - The procedural consequences of the presumption of correctness - The burden of production -  - The burden of persuasion - Judge Rowan's Decision - Montgomery County's theory of the case - An unpersuasion defense - An ingenuous argument - Flaw #1: Reliance on the status of an Implicit Decision - Flaw #2: A Commission decision of Delphic Ambiguity - Flaw #3: It is not every decision that is presumed to be correct - Flaw #4: The trigger for a reallocation of the burdens - The ultimate burden of persuasion.

Chaney Enterprises Limited Partnership v. Windsor,
158 Md.App. 1 (2004)

ESTOPPEL
Chaney employed Windsor, who, in turn, sustained an accidental injury while on loan to Genstar.  Chaney never contested Windsor's WC claim; nor did it appeal the WCC order.  Chaney, almost 6 years later, sued Genstar for indemnification of the WC benefits Chaney paid, asserting that Genstar was Windsor's special employer.  That suit was stayed while Chaney's issue regarding Genstar's employer status was pending before the WCC.  The CSA held that Chaney was estopped from denying that it was Windsor's employer because (1) Chaney failed to ask the WCC for almost 6 years to resolve the issue of correct employer, even though the circumstances of the accident were sufficient to charge Chaney with knowledge of Genstar's status as a special employer, (2) Chaney presented itself as Windsor's employer because it anticipated recovery from Genstar on the theory of subrogation, which would be inapplicable if Genstar was found to be an employer, and (3) Genstar has been prejudiced by the passage of time due to the death of its foreman.

Gleneagles, Inc., v. Hanks,
156 Md.App. 543 (2004)

APPEALS
The "no stay" provision of section 9-741 cannot be circumvented by application to the circuit court for injunctive relief.

Hahn Transportation, Inc., v. Gabeler,
156 Md.App. 213 (2004)

APPEALS
The circuit court abused its discretion in dismissing e/i's appeal where e/i substantially complied with the rules providing for transfer of the record on appeal.

In dicta, the court observed that the initial transfer of the record on appeal is expressly delegated to the WCC.  In this claim. the WCC promulgated supplemental orders while the claim was pending on appeal.  The CSA did not, in view of its holding that the circuit court abused its discretion, reach the issue of whose obligation it was - e/i's or the WCC's - to transmit the supplemental orders to the circuit court; the CSA noted, however, that it saw "no reason why the same reasoning should not apply to supplemental orders...."

Joao Rodrigues-Novo, et al. v. Recchi America, Inc., et al.,
381 Md. 49 (2004)
MARYLAND WORKERS' COMPENSATION ACT
Statutory Employer Immunity from Negligence Suit, held; under the Maryland Workers’ Compensation Act, the Washington Metropolitan Transportation Authority qualifies as a statutory employer of Rodrigues-Novo, who was injured while performing work in connection with the construction of a Metro facility.  The Washington Metropolitan Transportation Authority is, therefore, immune from Rodriguez-Novo’s claim of negligence.
Keystone Masonry Corp. v. Hernandez,
156 Md.App. 496 (2004)

DEPENDENCY
A posthumous child, i.e., a child born after the death of the deceased employee, is entitled to file a claim for dependency benefits.

In this case, the evidence was sufficient to support the jury’s verdict that the deceased employee’s two children and one posthumous child were totally dependent upon the deceased employee notwithstanding (1) inconsequential sources of income from other than the deceased employee and (2) housing and/or mortgage payments provided by family members other than the deceased employee.

Gosnell, Inc. v. Hensley,
156 Md.App. 224 (2004)

“ROUNDING UP”/COLA
The “rounding up” provision (section 9-604(b)) does not apply to yearly COLA payments pursuant to section 9-638, which are formulaic in nature and not “rates of compensation.”

Yox v. Tru-Rol Co., Inc.,
149 Md.App. 707 (2003)

LIMITATIONS (HEARING LOSS CLAIMS)
A claim for occupational hearing loss must be filed within 2 years after the date when the claimant (1) first suffered the requisite degree of hearing loss, and (2) first had actual knowledge that the disablement was caused by the employment.

Fitzgerald v. R & R Trucking, Inc.,
154 Md.App. 86 (2003)

JURISDICTION
Fitzgerald, a truck driver, is not regularly employed within Maryland and thus is not a “covered employee” under section 9-203(a)(2) where, even though he is a Maryland resident, Fitzgerald’s contract for hire was entered into in Missouri, his random assignments were transmitted to him by satellite radio, his semi-regular route from Landover was driven only 9 times during the 5-month term of employment, he spent most of his employment living in his truck, he parked the truck when in Maryland at a relative’s residence, and, even when in Maryland, slept in the truck.

Jones v. Potomac Edison Co.,
153 Md.App. 254 (2003)

LIMITATIONS
The payment of sick leave benefits does not qualify as “compensation” under section 9-101(e) and thus did not toll the running to the 5-year limitations period per section 9-736.

WMATA v. Hewitt,
153 Md.App. 42 (2003)
ATTORNEYS’ FEES
Attorney’s fees must be paid “immediately” after the expiration of the 30-day appeal period, as required by COMAR 14.09.01.24A(4), and may not be held, without justification, for an additional 15 days thereafter.
Mona Electric Co. v. Shelton,
377 Md. 320 (2003)

LIMITATIONS
A claim for PPD, filed more than 5 years after the last payment of TTD, is not barred by the 5-year limitations provision of section 9-736(b) where, after the employer and insurer withdrew issues contesting the claim, TTD was paid without the benefit of a Commission order.

Nor is Shelton equitably estopped from claiming PPD benefits under these circumstances where his voluntary acceptance of TTD benefits could not have caused the employer and insurer to rely to their detriment in failing to request that the Commission enter an award.

Giant Food, Inc., v. Booker,
152 Md.App. 166 (2003)

EXPERT TESTIMONY
A medical diagnosis of asthma, and its antecedent cause, requires expert testimony.  For expert testimony to be admissible, (1) the expert must be qualified; (2) the expert testimony must be appropriate for the particular subject; and (3) a sufficient factual basis must exist to support the testimony.  With regard to the third factor, where Booker's expert provided no rational explanation for why the underlying incident caused Booker's adult on-set asthma, Booker failed to carry his burden of production. The employer's motions for judgment and judgment NOV, therefore, should have been granted.

Prince George’s County v. Maringo,
151 Md.App. 662 (2003)

OCCUPATIONAL DISEASES – PRESUMPTION
The section 9-503 presumption for heart disease or hypertension applies to Prince George’s deputy sheriffs only where the heart disease or hypertension is more severe than existed prior to employment.  Deputy sheriffs who were employed on or before 9/30/96 were required to submit by 12/31/96 a report describing any heart disease or hypertension from which they may have been suffering.  Maringo’s date of disablement was 4/16/00.  It was held that Maringo, who did not file a report because he did have a known heart condition as of 12/31/96, was nevertheless required to submit a report if he wanted to avail himself of the presumption.  Maringo would still be entitled to the presumption if, in view of his 2000 medical examination, he substantially complied with the reporting requirement.  In order for Maringo to have substantially complied, however, the WCC would have to find  (1) that his 2000 medical examination was thorough enough to have revealed heart disease or hypertension had it existed and (2) that heart disease and hypertension are progressive conditions, such that if Maringo had no heart disease or hypertension in 2000, he had no such condition in 1996.

Harris v. Board of Education,
375 Md. 21 (2003)

ACCIDENTAL INJURY
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.

Livering v. Richardson’s Restaurant,
374 Md. 566 (2003)

ACCIDENTAL INJURY
The claimant’s accidental injury, suffered on a day off but while checking her work schedule at her place of employment, arose out of and in the course of her employment.

Saadeh v. Saadeh, Inc.,
150 Md.App. 305 (2003)

ELECTION OF REMEDIES
Before filing a workers’ compensation claim and without the knowledge or consent of the insurer, the claimant entered into a settlement releasing the only third-party tort-feasor from liability.  The claimant thereby extinguished the subrogation right the insurer would have acquired if and when compensation had been awarded.  Thus, the claimant elected a tort remedy to the exclusion of workers’ compensation.  (The Court of Special Appeals noted that the Commission had jurisdiction to decide the tort-feasor status of another potential candidate – even though deferring to circuit court would have been most appropriate where a tort action co-exists – where there was no objection to the Commission doing so.)

Rideout v. Dept. of Public Safety & Correctional Services,
149 Md.App. 649 (2003)
TEMPORARY TOTAL DISABILITY
A State employee who receives temporary total disability benefits may receive “other benefits,” i.e., benefits other than accident leave, under SP&P section 9-704(c) to which he would have been entitled in the absence of the work-related injury.
Tru-Rol Co., Inc.v. Yox,
149 Md.App. 707 (2003)

LIMITATIONS
The claimant, who believed his hearing loss was related to his employment, visited a physician, who informed the claimant that he needed a hearing aid.  The 2-year statute of limitations began, therefore, to run at that time because the claimant had actual knowledge that his hearing impairment was related to his employment and was placed on “inquiry notice” that he might have a claim against his employer.

Applied Industrial Technologies v. Ludemann,
148 Md.App. 272 (2002)

ACCIDENTAL INJURY
Proof of an accidental injury does not necessitate proof of the date on which that injury occurred.

Mona Electrical Services, Inc., v. Shelton,
148 Md.App. 1 (2002)

LIMITATIONS
A claim for permanent disability, filed more than 5 years after the last payment of TTD, is not barred by the 5-year limitations provision of section 9-736(b) where, after the employer and insurer withdrew issues contesting the claim, TTD was paid without the benefit of a Commission order. (Because contesting issues, as opposed to the claim itself, were withdrawn, the Commission had jurisdiction over this issue.)

Hood v. Alltrista Corp.,
143 Md.App. 124 (2002)

POSTHUMOUS PERMANENT AWARDS
When claimant dies of non-compensable causes, has no award of compensation, and leaves no dependents, then, under sections 9-632(e) and 9-640(e), any compensable claim for permanent disability that claimant may have had did not survive claimant’s death. Entering a posthumous award of compensation would be transparently for the sole purpose of justifying an award of attorney’s fees.

Watson v. City Fire Insurance Co.,
143 Md.App. 637 (2002)

SOLE PROPRIETOR
A sole proprietor is not a covered employee unless he makes the election to be a covered employee.

Jasen C. Arnstrom v. Excalibur Cable Communication, Ltd., et al.,
142 Md.App. 552 (2001)

VOCATIONAL REHABILITATION
After insurer denied coverage for claimant's accidental injury, claimant, without notice to insurer or prior Compensation Commission approval, obtained and completed vocational rehabilitation through State Department of Education, resulting in return to suitable, gainful employment.  Later, the Commissioner found claimant to be a covered employee.  Held:  Lack of prior notice or approval is not a per se defense to insurer liability for costs of vocational rehabilitation.  Under facts, insurer liable.

Lewis Stokes v. American Airlines, Inc., et al.,
142 Md.App. 440 (2000)

LAW OF THE CASE DOCTRINE-MANDATE RULE - WORKERS’ COMPENSATION CLAIM
The circuit court violated the law of the case when it summarily ruled that employee was not entitled to a workers’ compensation award.  A jury had previously fashioned an award, which this Court rejected as unsupported by the evidence.  By published opinion, however, we remanded the case for a “more limited consideration” of the period of disability, and the Workers’ Compensation Commission arrived at a new award.  The circuit court should have considered the merits of that new award, a result contemplated by our earlier mandate, rather than dismiss the case outright, a contradiction of the appellate directive.

Henville v. Southwest Airlines, Inc.,
142 Md.App. 79 (2002)

GOING AND COMING RULE
An airport parking lot, neither owned, maintained, or designated for parking by ER, does not fall within the PREMISES EXCEPTION to the going and coming rule, and the fence, which encloses that lot and which from time to time is climbed by some going to and from work, does not fall within the PROXIMITY EXCEPTION

Chesapeake Haven Land Corp. v. Litzenberg,
141 Md.App. 411 (2001)

SUBROGATION
WC insurer has no subrogation rights to claimant’s third-party recovery for future economic loss related to his secondary employment.
City of Frederick, et al. v. Donald Shankle
No. 24, Sept. Term, 2001

City of Frederick, et al. v. Donald Shankle,
367 Md. 5 (2001)

WORKER'S COMPENSATION
Police officers – presumption of compensability for heart disease; court may exclude testimony of expert denying validity of presumption.

Breitenbach v. N.B. Handy Co.,
366 Md. 467 (2001)

MEDICAL TREATMENT
Under section 9-660(a), Includes reimbursement for reasonable and necessary costs of transportation to and from the health care provider.

Zeitler-Reese v. Giant Food, Inc.,
137 Md.App. 593 (2001)

LIMITATIONS
Issue of temporary total disability not barred by the five-year statute of limitations pursuant to section 9-736(b) (3) where, under the original compensation award, claimant only received payment for medical bills, said payment not being "compensation."

Ametek, Inc. v. O'Connor,
364 Md. 143 (2001)

CREDIT
Where a workers' compensation award is increased on judicial review, the employer and insurer are entitled to a credit for the number of weeks the employer and insurer paid benefits. (Pursuant to section 9-633, effective 10/01/2001, credit will be for "compensation previously awarded and paid...")

Pohopek v. McElroy Truck Lines, Inc.,
140 Md.App. 235 (2001)

JURISDICTION
A person employed regularly within the State and, at the same time, regularly outside the State, is a "covered employee" (such that analysis under section 9-203(b) is not triggered).