Patrick Spevak v. Montgomery County, Maryland|
Circuit Court for Montgomery County
No. 893, September Term, 2020
Opinion by Beachley, J
(July 28, 2021)
WORKERS’ COMPENSATION – LE § 9-610 OFFSET FOR “SIMILAR BENEFITS” – EMPLOYEE’S SERVICE-CONNECTED TOTAL DISABILITY RETIREMENT OFFSETS ANY PERMANENT TOTAL OR PERMANENT PARTIAL WORKERS’ COMPENSATION BENEFITS|
Patrick Spevak, appellant, was employed by Montgomery County as a firefighter from 1979 to 2010. He sustained a back injury during his employment and, as a result of that injury, retired in 2010 after being granted a service-connected total disability retirement. Since 2010, he has been receiving retirement benefits amounting to approximately 70% of his highest salary.
Mr. Spevak’s hearing subsequently deteriorated, and in 2016 he filed a workers’ compensation claim based on occupational hearing loss. In 2017, the Workers’ Compensation Commission found that Mr. Spevak’s hearing loss was causally related to his employment and awarded him permanent partial disability benefits as a result of a 21% hearing loss in his left ear. However, the Commission determined that Mr. Spevak’s permanent partial benefits were completely offset pursuant to Section 9-610(a) of the Labor and Employment Article because his total disability retirement and his permanent partial workers’ compensation benefits were “similar benefits” under the statute. The Circuit Court for Montgomery County affirmed the Commission’s decision.
HELD: When an employee who is subject to the provisions of LE § 9-610(a)(l) receives a service-connected total disability retirement from his or her employer, the LE § 9-610 offset applies to any permanent total or permanent partial workers’ compensation benefits the employee is awarded for injuries or diseases related to that same employment. Because Mr. Spevak’s service-connected total disability retirement compensates for any and all work-related injuries he sustained in his employment with Montgomery County, he may not also receive a permanent partial workers’ compensation award.
Tyson Farms, Inc., et al. v. Uninsured Employers’ Fund|
Court of Appeals – No. 5, September Term, 2020
471 Md. 386
Opinion by Watts, J. McDonald, J., dissents.
(November 20, 2021)
WORKERS’ COMPENSATION – DETERMINATION OF EMPLOYER- EMPLOYEE RELATIONSHIP – CO-EMPLOYMENT|
Court of Appeals held that Court of Special Appeals erred in concluding, as a matter of law, that chicken farm owner and company that provided chickens were co-employers of farm worker at time that he was injured and erred in reversing trial court’s judgment. Court of Appeals determined that trial court properly denied motion for judgment, as evidence adduced at trial was susceptible to differing reasonable inferences, including inference that company did not exercise control over worker necessary to be deemed co-employer and thus was not co- employer of worker. Court of Appeals concluded that there was sufficient evidence from which reasonable juror could find—as jury did—that company was not co-employer of worker.
Board of Education of Harford County, et al. v. Linda A. Sanders|
Court of Special Appeals, Case No. 111
September Term, 2020
Opinion by Berger, J. (March 31, 2021)
ADMINISTRATIVE LAW AND PROCEDURE – JUDICIAL REMEDIES AND REVIEW – PROCEEDINGS TO OBTAIN REVIEW – APPEAL AND ERROR – MOTION TO REOPEN
Where a party requests that the Workers’ Compensation Commission reopen her claim, a refusal to reopen is not subject to judicial review. So long as the Workers’ Compensation Commission does not consider the merits of a claimant’s argument or rely on new evidence in the issuance of a new or amended order, its previous decision stands unimpeached as of its original date. The trial court erred in denying a party’s motion to dismiss a petition for judicial review of the Workers’ Compensation Commission decision to summarily deny a party’s request to reopen her claim.
Montgomery County, Maryland v. Anthony G. Cochran and Andrew Bowen|
Court of Special Appeals No. 662 & 2930
September Term, 2018
Opinion by Nazarian, J. (November 1, 2019)
WORKERS’ COMPENSATION ACT – OCCUPATIONAL DEAFNESS – MD. CODE ANN., LAB. & EMPL. (1991, 2016 REPL. VOL.) § 9-650(b)(3) –– CALCULATION OF DEDUCTION FOR “EACH YEAR OF THE COVERED EMPLOYEE’S AGE OVER 50 AT THE TIME OF THE LAST EXPOSURE TO INDUSTRIAL NOISE” – COMPENSABLE DISABLEMENT – TINNITUS|
Court of Appeals held that Workers’ Compensation Commission did not err in calculating deduction of decibels from firefighters’ total average hearing losses under Md. Code. Ann., Lab. & Empl. (1991, 2016 Repl. Vol.) (“LE”) § 9-650(b)(3) by counting number of years between each firefighter’s 50th birthday and dates that they each retired from employment with Montgomery County, Maryland. Court of Appeals concluded that plain and ordinary meaning of term “industrial noise” as used in LE § 9-650(b)(3) is occupational noise or noise encountered in workplace in employment of employer. Thus, phrase “time of  last exposure to industrial noise” means date that employee is last exposed to occupational noise, i.e., date of employee’s retirement, and not date of hearing test measuring hearing loss.
Court of Appeals also held that, under circumstances of one firefighter’s case, any issue as to whether firefighter sustained compensable disablement due to tinnitus, i.e., whether tinnitus is compensable as part of occupational deafness claim or as occupational disease upon establishment of disablement, was not before Court of Special Appeals. Court of Appeals thus concluded that Court of Special Appeals erred in considering matter and in reversing Workers’ Compensation Commission’s award of permanent partial disability benefits to firefighter for tinnitus on that ground.
Montgomery County, Maryland v. Fernando Rios, Court of Special Appeals No. 2642|
September Term 2018.
Opinion by Beachley, J. (February 28, 2020)
WORKERS’ COMPENSATION—STATUTE OF LIMITATIONS|
Appellant argued that when a claimant filed a request for modification of his workers’ compensation award, alleging permanent partial disability, less than one month before the expiration of the statute of limitation, without first obtaining a medical evaluation for permanent impairment as required by COMAR 14.09.09.02B (he obtained the medical evaluation prior to the hearing but after the statute of limitations had expired), the filing was barred by the statute of limitations.
The Commission held that the issue was not time-barred and the Circuit Court affirmed. The CSA also affirmed.
Montgomery County, Maryland v. John T. Maloney|
Court of Special Appeals No. 632
September Term, 2018
Opinion by Kehoe, J. (April 7, 2020)
WORKERS’ COMPENSATION – REVIEW BY COURT – TRIAL DE NOVO|
When a party seeks judicial review of an unfavorable decision by the Workers’ Compensation Commission, his opponent is not inescapably bound by the appealing party’s procedural preference. The language of Md. Code, Lab. & Empl. § 9-745(d), makes plain that “any party” can request, “in accordance with the practice in civil cases,” a de novo review of “any question of fact involved in the case.”
Review by “essentially” de novo trial is available only for issues of fact actually decided by the Commission. Whether an injury arises “out of” and “in the course of” employment is a factual question—or a “mixed” question of law and fact—able to be considered afresh by the circuit court if there are facts in dispute or if opposing inferences can reasonably be drawn from undisputed facts.
Harford County, Maryland v. Gary E. Mitchell, Sr.|
Court of Special Appeals No. 3456
September Term, 2018
Opinion by Beachley, J. (April 2, 2020)
The Court held that offset in LE § 9-503(e)(2) is calculated based on the claimant’s “weekly salary.” “Average weekly wage” is a term of art defined by LE § 9- 602, calculated based on the claimant’s earnings at the time of injury or last injurious exposure to the hazards of an occupational disease. The Court concludes that the legislature’s use of “weekly salary” rather than “average weekly wage” was intentional. Because the employee is generally entitled to receive both workers’ compensation and retirement benefits, and construing the statute in accordance with its benevolent purpose, “weekly salary” refers to the claimant’s salary at the time of retirement for purposes of calculating the offset.
Baltimore County, Maryland v. Charles Ulrich|
Court of Special Appeals No. 2541
September Term, 2018
Opinion by Arthur, J. (January 30, 2020)
WORKERS’ COMPENSATION ACT - STATUTORY LIEN ON EMPLOYEE’S RECOVERY FROM THIRD PARTY HEALTHCARE PROVIDER|
If a person other than an employer is liable for a work-related injury, the employee may bring a claim under the Workers’ Compensation Act against the employer or may bring an action for damages against the third-party tortfeasor. Md. Code (1991, 2016 Repl. Vol.), § 9-901 of the Labor and Employment Article. When an employee pursues a claim for workers’ compensation benefits and also sues the third party for damages, the employer retains a subrogation interest in the reimbursement of benefits that it paid under the Act, including medical expenses. This subrogation interest acts as a statutory lien on the employee’s recovery of damages from a third-party tortfeasor. See id. § 9-902(e).
A third-party healthcare provider that merely treats an employee’s work-related injury is not liable for that injury, but only for the additional harm resulting from negligent treatment. Accordingly, where an employer has paid for medical services exclusively to treat the compensable injury (not to treat the additional harm from medical negligence), the employer has no subrogation interest in the reimbursement of those medical expenses out of the damages recovered by an employee for the alleged negligent treatment.
Uninsured Employers’ Fund v. Tyson Farms, Inc., et al.|
Court of Special Appeals No. 1057
September Term, 2018
Opinion by Wright, J. (November 22, 2019)
WORKERS’ COMPENSATION – NATURE AND GROUNDS OF EMPLOYER’S LIABILITY – IN GENERAL |
In a case where a party is employed by a landowner to manage his property, the landowner’s status as an employer may be coextensive with another person or entity, if such person or entity exercises an appropriate degree of control over the party. Relevant to the determination of co-employment is the degree of control exercised by the landowner over the employee relative to that of the other person or entity. Where, as here, a landowner exercises minimal control over an employee, and a separate person or entity maintains substantial control over the day-to-day functions of that employee, that other person or entity may be properly determined to be a co-employer, and consequently falls subject to the level of legal responsibility commensurate with that designation.
Baltimore County, Maryland v. Michael Quinlan|
Court of Appeals No. 50
September Term, 2018
Opinion by Adkins, J. (August 26, 2019)
MARYLAND WORKERS’ COMPENSATION ACT—OCCUPATIONAL DISEASE—LE § 9-502(D)—PARAMEDIC/FIREFIGHTERS—DEGENERATIVE MENISCAL TEARS: |
Pursuant to Maryland Code Ann. (1991, 2016 Repl. Vol.), § 9- 502(d) of the Labor and Employment Article (“LE”), an occupational disease is only compensable if: (1) it is “due to the nature of an employment in which hazards of the occupational disease exist”; and (2) “it reasonably may be concluded that the occupational disease was incurred as a result of the employment of the covered employee.” Here, the record contained evidence that the nature of the job of a paramedic/firefighter involved hazards that place an employee at greater risk for degenerative knee conditions than those faced by the general public. The employee, Michael Quinlan (“Quinlan”), was a paramedic, and was required to engage in the activities that account for this increased risk. Moreover, he engaged in these activities repetitively over 24 years of employment. This claim was not shown to involve a concomitant preexisting condition. Therefore, as a matter of law, the degenerative meniscal tears could be considered an occupational disease, and there was sufficient evidence for the jury to reasonably conclude that Quinlan’s degenerative knee tears were compensable.
Peter Gang v. Montgomery County, Maryland|
Court of Appeals No. 67
September Term, 2018
Opinion by Battaglia, J. (June 24, 2019)
WORKERS’ COMPENSATION ACT – MD. CODE (1991, 2016 REPL. VOL.), § 9-736 LAB. & EMPL. ART. – CONTINUING POWERS AND JURISDICTION; MODIFICATION OF PREVIOUS ORDERS AND AWARDS|
Section 9-736(a) of the Labor and Employment Article, the subsection which governs the readjustment of a rate of compensation in cases of aggravation, diminution or termination of disability, does not limit or otherwise restrict the jurisdiction of the Workers’ Compensation Commission to modify its previous findings, orders or awards under Section 9-736(b), provided the modification sought is applied for within five years after the date of the accident, the date of disablement or the last compensation payment.
Justin Stine v. Montgomery County, Maryland|
Court of Special Appeals No. 578
September Term, 2017
Opinion by Nazarian, J. (June 1, 2018)
WORKERS’ COMPENSATION – AMOUNT AND PERIOD OF COMPENSATION – COMPUTATION OF AVERAGE WEEKLY WAGE – EVIDENCE – EXPERT TESTIMONY The circuit court did not err in excluding testimony from workers’ compensation claimant’s vocational expert. Expert testimony about wage increases the claimant might expect at some point in the future, after earning a bachelor’s degree in nursing and passing the requisite licensing examinations, was not relevant to the computation of the claimant’s average weekly wage under MD. CODE ANN., LABOR & EMPL. § 9-602(g), which applied to claimant because of his status as volunteer emergency medical technician for a fire department. The circuit court was not required to apply section 9-602(a)(3), which allows for consideration of wages a claimant may expect to earn in the future given his age and experience.|
WORKERS’ COMPENSATION – AMOUNT AND PERIOD OF COMPENSATION
– COMPUTATION OF AVERAGE WEEKLY WAGE The circuit court erred in holding that COMAR 14.09.03.06 compelled the Commission to calculate the average weekly wage based on average wages earned during a fourteen-week period. As this Court recently clarified in Richard Beavers Constr. v. Wagstaff, that regulation “does not purport to restrict the Commission in any manner from utilizing a
different time period [than fourteen weeks] if the Commission deems it appropriate to do so.” 236 Md. App. 1, 24–25 (2018) (quoting Gross v. Sessinghause & Ostergaard, Inc., 331 Md. 37, 50 (1993)).
WORKERS’ COMPENSATION – AMOUNT AND PERIOD OF COMPENSATION – COMPUTATION OF AVERAGE WEEKLY WAGE – PROCEEDINGS TO SECURE COMPENSATION – REVIEW BY COURT – RIGHT TO TRIAL DE NOVO – RIGHT TO JURY TRIAL The circuit court erred in entering an order affirming the decision of the Workers’ Compensation Commission that set the claimant’s average weekly wage. The circuit court instead should have proceeded with a jury trial, which the claimant had requested pursuant to MD. CODE ANN., LABOR & EMPL. § 9-745(d). Judicial review in workers’ compensation cases can follow one of two “modalities”: an unadorned administrative appeal or an essential trial de novo. Where the claimant opted for an essential trial de novo and had requested a jury, the exclusion of his expert’s testimony did not terminate his right to have a jury decide the factual question of his average weekly wage under MD. CODE ANN., LABOR & EMPL. § 9-602(g).
Danny Blankenship v. State of Maryland/MTA, et al.|
Court of Special Appeals No. 179
September Term, 2017
Opinion by Berger, J. (May 31, 2018)
WORKERS’ COMPENSATION - STATUTORY OFFSETS Two statutory offsets apply to workers’ compensation benefits in order to prevent double recovery for the same injury: the statutory offset set forth in LE § 9-610 and the statutory offset set forth in Md. Code (1993, 2015 Repl. Vol.), § 29-118 of the State Personnel & Pensions Article (“SPP”). The LE § 9-610 offset applies to benefits except for those benefits “subject to an offset under [SPP] § 29-118.” The LE § 9-610 offset operates by reducing workers’ compensation benefits, while the SPP § 29-118 offset leaves workers’ compensation benefits unaffected. The SPP offset applies when a pension is “administered” by the Board of Trustees for the State Retirement and Pension System; otherwise, the LE offset applies. |
APPLICABILITY OF STATUTORY OFFSETS - STATE PERSONNEL AND PENSION OFFSET - LABOR AND EMPLOYMENT OFFSET - ADMINISTRATION OF MTA PENSION SYSTEM The SPP § 29-118 offset applies when a pension is “administered” by the Board of Trustees for the State Retirement and Pension System; otherwise, the LE § 9-610 offset applies. The State Personnel and Pensions System is responsible for the investment of the MTA pension’s assets, but the MTA is otherwise responsible for the day-to-day administration of the pension. Administration of the assets does not constitute “administration” of the MTA pension. The MTA, and the MTA alone, is responsible for the day to-day administration of the MTA pension plan, including the payment of pension benefits and determination of participant eligibility. Because the MTA pension is separate and distinct from the Maryland State Retirement and Pension System, the benefits at issue in this case were not subject to an offset under SPP § 29-118 but were subject to the LE § 9-610 offset.
Rina Calvo v. Montgomery County, Maryland|
Court of Appeals No. 48
September Term, 2017
Opinion by Adkins, J. (May 21, 2018)
WORKERS’ COMPENSATION — TRAVELING EMPLOYEE: An employee who was required to report from her home to a different work site was not a traveling employee under Mulready v. Univ. Research Corp., 360 Md. 51 (2000), because traveling employee status generally applies to employees who are injured on premises where the employee is staying to carry out the employer’s business.|
WORKERS’ COMPENSATION — GOING AND COMING RULE — SPECIAL
MISSION OR ERRAND EXCEPTION: Determining whether an employee’s journey is sufficiently special to satisfy the special mission or errand exception to the going and coming rule requires consideration of: (1) the relative regularity or unusualness of the particular journey in the context of the employee’s normal duties; (2) the relative onerousness of the journey in comparison to the service to be performed at the end of the journey and other circumstances of the journey including the length and time of the journey, and whether the employee usually worked at that time; and (3) the suddenness with which the employee was called to work, or whether the call was made with an element of urgency.
WORKERS’ COMPENSATION — GOING AND COMING RULE — SPECIAL
MISSION OR ERRAND EXCEPTION — SUMMARY JUDGMENT: Employer’s motion for summary judgment should not have been granted because employee’s claim was not barred by the going and coming rule when the employee was required to attend an annual mandatory training on a day she did not typically work, the training was held at a different location than her usual work site, and the training was not regular in the context of her ordinary duties. From these facts, a trier of fact could reasonably infer that the special mission exception applied.
Claudette Norman-Bradford v. Baltimore County Public Schools, et al.|
Court of Special Appeals No. 2536
September Term, 2016
Opinion by Nazarian, J. (April 30, 2018)
WORKERS’ COMPENSATION ACT — APPLICATION TO ORDINARY DISABILITY RETIREMENT BENEFITS — MD. CODE. ANN. (1991, 2016 REPL. VOL.), LAB. & EMPL. ART. § 9-610 OFFSET PROVISION APPLIES |
In light of the 2004 amendment of § 29-118 of the State Personnel & Pension Article (“SP”), a retiree employed by a county board of education who receives ordinary disability retirement benefits through that employer remains subject to the offset provision in § 9-610 of the Labor and Employment Article (“LE”), not the offset provision in SP § 29-118.
WORKERS’ COMPENSATION ACT — MD. CODE ANN. (1991, 2016 REPL. VOL.), LAB. & EMPL. ART. § 9-610 — OFFSET FOR PAYMENT OF BENEFITS THAT ARE “SIMILAR BENEFITS” TO WORKERS’ COMPENSATION BENEFITS — APPLICATION TO ORDINARY DISABILITY RETIREMENT BENEFITS
Ordinary disability retirement benefits are “similar” to workers’ compensation benefits, and the statutory offset in LE § 9-610 applies, when the record reflects that the same physical incapacity for which ordinary disability retirement benefits were awarded forms the basis for the workers compensation benefits.
WORKERS’ COMPENSATION ACT — MD. CODE ANN. (1991, 2016 REPL. VOL.), LAB. & EMPL. ART. § 9-610 — OFFSET FOR PAYMENT OF BENEFITS THAT ARE “SIMILAR BENEFITS” TO WORKERS’ COMPENSATION BENEFITS — APPLICATION TO ORDINARY DISABILITY RETIREMENT BENEFITS — ORDINARY DISABILITY RETIREMENT BENEFITS AWARDED ON THE BASIS OF A PREEXISTING MEDICAL CONDITION
When a claimant suffers an injury involving a preexisting condition that is triggered or exacerbated by an accidental injury, LE § 9-610 offset still applies, even if the Maryland State Retirement Pension System and Worker’s Compensation Commission awarded benefits for the same injury but found different causes for that injury.
Richard Beavers Construction, Inc., et al. v. Dexter Wagstaff|
Court of Special Appeals No. 1977
September Term, 2016
Opinion by Arthur, J. (March 1, 2018)
WORKERS’ COMPENSATION—AVERAGE WEEKLY WAGE |
Neither statute nor regulation nor case law strictly requires the Workers’ Compensation Commission to calculate the average weekly wage of a covered employee using an average of the actual earnings before an accidental injury. For some newly-hired employees, the actual earnings before the injury may not accurately represent what the employee normally would earn from the employer. The Workers’ Compensation Commission is not required to calculate average weekly wage using the actual earnings from the period before an accident where: (1) the employer hired the employee for the stated purpose of working “full time,” meaning 40 hours per week; (2) the employee suffered a disabling injury only a short period of time after being hired; (3) the employee worked substantially less than 40 hours per week during that period; and (4) other circumstances call into question whether the actual hours worked during that period accurately represented the employee’s normal working hours.
In this case, the Commission determined an employee’s average weekly wage based on the 40-hour work week for which he had been hired, instead of using the actual hours during the six weeks he worked prior to the accident, which were shortened by inclement weather. Given that the parties presented only those two, imperfect options, the Commission’s determination was not incorrect as a matter of law. Under the circumstances, it was not unreasonable to conclude that multiplying the hourly rate by 40 hours would result in the better approximation of what the employee normally would earn from the employer under the contract that was in existence at the time of the injury.
R.K. Grounds Care, et al.v. Kevin D. Wilson|
Court of Special Appeals No.1452
September Term, 2016
Opinion by Eyler, Deborah S., J.
(December 4, 2017)
The Commission lacks subject matter jurisdiction to decide whether money that was in the hands of an insurer for settlement of a workers’ compensation claim was exempt from garnishment to pay a judgment in a child support action.|
Electrical General Corp., et al. v. Michael L. LaBonte|
Court of Appeals No. 69
September Term, 2016
Opinion by Watts, J. (July 10, 2017)
The Court held that where employee has incurred both accidental personal injury or occupational disease, and subsequent intervening event, and Workers' Compensation Commission has apportioned permanent partial disability benefits for accidental personal injury or occupational disease, existence of subsequent intervening event finding does not preclude Commission from awarding additional permanent partial disability benefits for worsening of employee's condition caused by and reasonably attributable solely to accidental personal injury or occupational disease.|
Court of Appeals held that existence of subsequent intervening event does not, per se, preclude employer's liability for workers' compensation benefits. Employer may be liable for workers' compensation benefits where employee demonstrates that worsening of medical condition was caused by accidental personal injury or occupational disease.
Court of Appeals held that issues of whether accidental personal injury or occupational disease, or subsequent intervening event, caused worsening of employee's medical condition, and whether, for purposes of permanent partial disability benefits, worsening of employee's medical condition was reasonably attributable solely to accidental personal injury or occupational disease, are factual matters for Workers' Compensation Commission to determine in each individual case.
Charles C. Reger v. Washington County Board of Education, et al.|
Court of Appeals No. 68
September Term, 2016
Opinion by Getty, J. (August 4, 2017)
Workers' Compensation Act ' Md. Code Lab. & Empl. Art. ?? 9-610 (1991, 2008 Repl. Vol.)|
Offset for payment of benefits that are "similar benefits" to workers' compensation benefits. Application to ordinary disability retirement benefits. Ordinary disability retirement benefits awarded on the basis of a preexisting medical condition.
Marcee Zakwieia v. Baltimore County Board of Education|
Court of Special Appeals 2492
September Term, 2015
Opinion by Berger, J. (February 3, 2017)
The Court of Special Appeals published an opinion on the application of the offset provided in Md. Code (1991, 2008 Repl. Vol.), 9-610 of the Labor & Employment Article ( 'LE '):|
The questions presented on appeal involve whether the Board was entitled to apply ordinary disability retirement benefits owed to Marcee Zakwieia ( 'Claimant '), appellant, as a credit to workers ' compensation benefits also owed to her. The circuit court affirmed the decisions of the Maryland Workers ' Compensation Commission ( 'the Commission '), ruling that the Board was entitled to the statutory offset provided in Md. Code (1991, 2008 Repl. Vol.), 9-610 of the Labor & Employment Article ( 'LE '). Claimant alleged that the circuit court 's ruling was erroneous and presented two questions for consideration by the Court of Special Appeals:
I. Whether LE 9-610 applies in determining whether the Board is entitled to a statutory offset for workers ' compensation benefits owed to Claimant.
II. Whether the circuit court properly determined that the Board was entitled to an offset for Claimant 's workers ' compensation benefits pursuant to LE 9-610.
The Court answered 'yes ' to both questions.
Electrical General Corp., et al. v. Michael L. Labonte|
Court of Special Appeals 0718
September Term, 2015
Opinion by Reed, J. (July 27, 2016)
The Court of Special Appeals ('CSA') published an opinion in Electrical General Corp. v. Labonte, which stemmed from a jury verdict in the Circuit Court for Anne Arundel County that reversed the finding of the Maryland Workers' Compensation Commission ('Commission') that Michael Labonte's current back condition is not causally related to the accidental work injury he suffered on September 2, 2004, but rather entirely to a subsequent intervening accident he suffered on December 31, 2006. In so reversing the Commission, the jury authorized Mr. Labonte's requests for medical treatment and payment of his medical bill dated February 2, 2012. The CSA affirmed the circuit court's decision to reverse the Commission.|
Prince George's County, Maryland v. Melvin Proctor|
Court of Special Appeals No. 2614
September Term, 2014
Opinion by Leahy, J. (July 26, 2016)
On his day off work, Prince George's County police detective Melvin Proctor (Appellee) was injured when he jumped to the side to avoid knocking over his two-year old son as he and his family were walking out the front door of their home. On December 14, 2012, Det. Proctor filed a claim with the Workers' Compensation Commission ('WCC') contending he was injured while on call and performing a special errand incident to his employment because he left his home with the intention of picking up his assigned police cruiser from the county fleet maintenance facility that day. On December 27, 2012, the Prince George's County Executive and County Council ('Appellant,' the 'County'), acting in their capacity as employer and insurer, filed a statement of contesting issues with the WCC. The County maintained that Det. Proctor's injuries did not arise out of the course of his employment and were non-compensable|
n May 29, 2013, the WCC disallowed Det. Proctor's claim. After a hearing on judicial review in the Circuit Court for Prince George's County, the court entered its memorandum opinion and order on January 15, 2015, reversing the WCC's decision. The County filed a notice of appeal to this Court on February 6, 2015. The County presents just one issue: '[w]hether the circuit court erred when it determined that Appellee's injuries arose out of and in the course of his employment.'
Considering the ''time, place, and circumstances of the accident in relation to the employment,'' State v. Okafor, 225 Md. App. 279, 286 (2015) (citation omitted), the Court agreed with the WCC's determination that Det. Proctor's injury 'did not arise out of and in the course of employment as alleged to have occurred on September 17, 2012[,]' where it occurred on his own front porch, while he was off duty, and before embarking on any task incident to his employment as a police officer. Accordingly, in a situation in which Det. Proctor's injuries arose prior to embarking on any work-related journey, the 'going and coming' rule is not what bars Det. Proctor's claim, and the Court did not address the exceptions to the 'going and coming' rule. The Court held that the circuit court erred in its determination that, under the facts of this case, the positional-risk test necessitated overruling the decision of the WCC.
Carville A. Hollingsworth, et al. v. Severstal Sparrows Point, LLC, et al.|
Court of Appeals No. 95
September Term, 2015
Opinion by Adkins, J. (July 11, 2016)
When the Workers' Compensation Commission finds a claimant permanently totally disabled, 9-640 of the Workers' Compensation Act governs survival of benefits regardless of whether the claimant's permanent total disability is due solely to accidental injury or a combination of accidental injury and preexisting conditions.|
Patrick Long v. Injured Workers' Insurance Fund, et al.|
Court of Appeals No. 90
September Term, 2015
Opinion by Watts, J. (June 22, 2016)
WORKERS' COMPENSATION ' MD. CODE ANN., LABOR & EMPL. (1991, 2008 REPL. VOL.) L&E 9-602(a), 9-637(a) ' CODE OF MARYLAND REGULATION 14.09.03.06 ' AVERAGE WEEKLY WAGE ' SOLE PROPRIETOR ' NET PROFIT - GROSS RECEIPTS/GROSS INCOME ' Court of Appeals held that average weekly wage of sole proprietor who elects coverage under Maryland Workers' Compensation Act is to be calculated based on sole proprietorship's net profit, not on sole proprietorship's gross income or gross receipts. Sole proprietorship's net profit is best approximation of earnings that sole proprietor actually takes home because net profit does not include sole proprietorship's business costs and expenses.|
Board of Education of Prince George's County v. James Brady|
Court of Special Appeals No. 781
September Term, 2015
Opinion by Harrell, J. (June 30, 2016)
Where Employee elected to use his accrued paid personal and sick leave, rather than seek temporary total disability ('TTD') payments afforded under the Workers' Compensation Act, the Board of Education of Prince George's County is entitled to an offset against the award for the Board's prior leave payments to Employee based on Maryland Code (1991, 2008 Repl Vol), Labor and Employment Article, 9-610 ('L&E'). After a proceeding in front of the Workers' Compensation Commission on Employee's claim for permanent partial disability payments, where Employee was awarded a permanent partial disability award, the Commission granted the Board of Education an offset. The Court of Special Appeals reversed the Circuit Court for Prince George's County which had reversed the decision of the Commission granting the offset.|
Injured Workers' Insurance Fund v. Subsequent Injury Fund, et al.|
Baltimore County, Maryland v. Subsequent Injury Fund, et al.
Court of Appeals No. 39 and No. 40
September Term, 2015
Opinion by Greene, J. (April 22, 2016)
The assessment payable to the Subsequent Injury Fund pursuant to Maryland Code (1991,|
2008 Repl. Vol., 2015 Cum. Supp.) 9-806 of the Labor and Employment Article is
calculated based on the amount of an award prior to the statutory offsets for retirement
benefits provided by L&E 9-610 and 9-503(e) of the Labor and Employment Article. This
interpretation is based on the clear and unambiguous language of 9-806 of the Labor and
Employment Article and is consistent with the broad statutory scheme of the Workers'
Prince George's County, Maryland, et al. v. Frederick Minor|
Court of Special Appeals No. 1871
September Term, 2014
Opinion by Kenney, J. (March 29, 2016)
In brief, Claimant's attorney did not file a consent for attorney's fees at the time he sought permanent partial disability for his client. The employer/insurer (Prince George's County) paid the full amount of the award to the claimant and mailed the check to claimant's attorney. Attorney forwarded check to claimant, who cashed it. Claimant's attorney belatedly sought order for attorney's fees (and doctor's fees), but wanted the County to pay. The Court of Special Appeals upheld the Commission's decision to award attorney's fees to be paid by the Claimant (either directly from claimant, or as a lien against future awards). In upholding the Commission, the Court of Special Appeals reversed the circuit court which had ordered the County to pay.|
Terry Bradley v. Construction Labor Contractors, et al.|
Court of Special Appeals No. 2041
September Term, 2014
Opinion by Wilner, J. (February 24, 2016)
The Workers' Compensation Law provides two options in the exercise of the Commission's authority to grant a 'motion for rehearing', other than acquiescence, when a party is aggrieved by a Commission decision. Md. Code, 9-726(a) of the Labor and Employment Article (LE) permits a party, within 15 days after the decision, to file with the Commission a written motion for a rehearing. Alternatively, LE 9-737 permits an aggrieved party, within 30 days after the mailing of the decision, to file an action for judicial review in accordance with the Rules in Title 7 of the Maryland Rules. What happens to the time for filing a petition for judicial review when a party files multiple motions for rehearing before it finally files an action for judicial review?|
Patrick Long v. Injured Workers' Insurance Fund, et al.|
Court of Special Appeals No. 2615
September Term, 2013
Opinion by Salmon, J. (September 30, 2015)
In a question of first impression in Maryland, the Court of Special Appeals held that when an injured worker is a sole proprietor, his or her average weekly wage should be based upon the income of the sole proprietorship after deducting business expenses as shown on claimant's federal income tax return.|
Mark G. Hranicka v. Chesapeake Surgical, Ltd., et al.|
Court of Appeals No. 83
September Term, 2014
Opinion by Watts, J. (June 18, 2015)
STATUTE OF LIMITATIONS ' CLAIM FOR BENEFITS ' ELECTRONIC SUBMISSION ' FILING ' |
Court of Appeals held that employee's claim was time-barred under Md. Code Ann., Labor & Empl. (1991, 2008
Repl. Vol.) 9-709(b)(3) where claim was electronically submitted to Workers' Compensation Commission ('Commission') before expiration of two-year period, but not iled on paper until after expiration of two-year period. Stated otherwise, Court of Appeals held that, under relevant statutes and regulations, electronic submission of claim does not constitute 'filing' pursuant to Code of Maryland Regulations 14.09.02.02A, and Commission erred in ruling that date of claim could, for purposes of statute of limitations, be date of claim's electronic submission.
Baltimore County, Maryland et al. v. Carroll Thiergartner|
Jeffrey Walters v. Baltimore County, Maryland
Court of Appeals Nos. 44 and 58
September Term, 2014
Opinion by McDonald, J. (April 20, 2015)
Workers' Compensation Benefits - Presumption Accorded Public Safety Employees -|
Offset for Retirement Benefits - Deferred Retirement Option Benefits.
The State Workers' Compensation Act includes a special presumption for public safety employees that
certain medical conditions are the result of an occupational disease and are compensable under the Act. Benefits paid as a result of that presumption, however, are capped such that the weekly total of those benefits and any retirement benefits received by the individual do not exceed the individual's average weekly salary; if the total exceeds the average weekly salary, the workers' compensation benefits are reduced by the amount of the excess. One form of retirement benefits available to long-time employees of Baltimore County was the Deferred Retirement Option Program ('DROP'), under which an employee delayed
retirement in return for benefits that could be received as a lump sum upon retirement or as part of an enhanced monthly retirement payment. A lump sum DROP payment must be converted to a weekly amount for purposes of the offset computation in the Workers' Compensation Act. The method adopted by the Workers' Compensation Commission in one of these cases ' using the higher recurring benefits figure that would have been paid if the individual had made a different election with respect to the DROP ' was a reasonable way of doing so. Maryland Code, Labor & Employment Article, 9-503; Baltimore County Code,
Injured Workers' Insurance Fund v. Subsequent Injury Fund, et al.|
Court of Special Appeals No. 0358
Baltimore County, Maryland v. Subsequent Injury Fund, et al.
Court of Special Appeals No. 1258
September Term, 2014
Opinion by Wright, J. (April 3, 2015)
MD. CODE (1991, 2008 Repl. Vol.), Labor & Employment Article, requires employers to pay the 6.5% assessment to the Subsequent Injury Fund based on the full amount of all permanent disability awards regardless of any offset for retirement benefits.|
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,
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.
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
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
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.
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
COA No. 138, September
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
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
Bridgett v. Montgomery County
186 Md.App. 616 (07.07.09)
A Commission decision as to
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
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
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)
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)
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 Caf ,|
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)
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)
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%OCClaim #2: 15% left kneeAppeal 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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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).