State News : Maryland

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Maryland

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Code of Maryland Regulations Removed the Cap on Reimbursement of Expenses and Costs Due to Missed Medical Examination Appointments.

Effective October 18, 2021, Code of Maryland Regulations (COMAR) 14.09.03.08B(6) was revised to remove the $125.00 cap on the reimbursement of reasonable expenses and costs associated with a missed medical examination. The amendment allows for a party to seek credit or reimbursement for the entire amount of no-show fees, or other reasonable expenses and costs incurred due to a missed exam. The reimbursement amount is now subject to the presiding Commissioner’s discretion.

Maryland Court of Appeals Holds that a Workers’ Compensation Commission’s Summary Denial of a Motion to Reopen or Modify is Not Subject to Judicial Review or Appeal.

On December 17, 2021, the Maryland Court of Appeals handed down their decision in Linda A. Sanders v. Board of Education for Harford County, et al., 265 A.3d 1083. The Court had to decide whether the Commission’s summary denial of Sander’s (Petitioner) second request for modification under Maryland Code, Labor and Employment § 9-736(b) (hereinafter “LE” § 9-736(b)) was subject to judicial review. The Maryland Workers’ Compensation Commission issued an Award denying the Petitioner’s shoulder surgery. The Petitioner did not appeal or request a rehearing of that Award. Over three years later, the Petitioner filed a request for modification of the Commission’s Award, which was summarily denied. The Petitioner filed a petition for judicial review with the Circuit Court. The Respondents filed a motion to dismiss, which was subsequently granted. The Petitioner then filed a second request for modification of the Commission’s Award based on the same issues, with the Commission. The Commission, again, summarily denied the second request for modification of the Commission’s Award. The Petitioner appealed to the Circuit Court for judicial review on this second request, which was subsequently allowed. The Circuit Court remanded the case back to the Workers’ Compensation Commission for further consideration.  The Respondent’s appealed the Circuit Court’s Order of remand to the Court of Special Appeals. The Court of Special Appeals found in favor of the Respondents, that the Circuit Court erred in their Order as summary denial of the Workers’ Compensation Commission is not an appealable decision. The Petitioner then filed a writ of certiorari with the Court of Appeals in 2021. The Court of Appeals granted the petition and affirmed the Court of Special Appeal’s decision.

 The Court of Appeals found as follows:

·         According to the plain language of LE § 9-736(b), the Commission has wide discretion to either modify a finding or order that it has previously issued, or no do so. Although LE § 9-737 generally provides for judicial review of the Commission’s decision within thirty days of the Commission’s Order, Maryland’s case law makes clear that summary denial of a request to reopen or modify under LE § 9-736(b) is not subject to judicial review, as it is not a reviewable decision.

·         The Court reiterated its position as to why the Commission’s summary denial of a request to reopen or modify a prior decision is not subject to judicial review. The Court clarified in Jerry Blevins v. Baltimore County, 352 Md. 620, that where the Commission denies an application to reopen or modify without discussing the merits or propriety of the earlier order, it is evident that the earlier order has not been reconsidered and no new decision has been made. Thus, when the Commission summarily denies a request to reopen or modify, they are not making any new decision, thus the previous order remains unchanged, and there is nothing new for an appellate court to review.

·         The key takeaway from this decision is that if the Commission declines to reconsider their prior Award, that decision is not appealable.

Maryland Court of Special Appeals Holds That Employer/Insurers Do Not Waive Their Statutory Subrogation Interest Against Third Party Proceeds by Failing To Expressly Reserve their Right.

On July 18, 2022, the Maryland Court of Special Appeals decided the case of Charles D. Conley, et al v. Trumbull Insurance Company, 2022 WL 2800977. The Court was tasked with deciding whether Employer/Insurers waived their statutory right of reimbursement of third-party proceeds by failing to expressly reserve their reimbursement right in their full and final settlement agreement with the Employee. The Employee (Conley) sustained an on-the-job injury due to the negligence of a third-party. Conley resolved his workers’ compensation claim with his employer’s insurance company (Trumbull) by way of a full and final settlement, approved by the Workers’ Compensation Commission. Conley then proceeded to settle his claim against the negligible third-party and collected the proceeds. When Trumbull asserted their subrogation lien against the third-party settlement proceeds, Conley refused as he believed Trumbull waived their right to the third-party proceeds by failing to expressly reserve their statutory lien under the full and final settlement agreement of the workers’ compensation claim. Trumbull filed a complaint against Conley to enforce the Employer’s subrogation right under the Maryland Workers Compensation Act. The Circuit Court of Baltimore County found in favor of Trumbull, holding that the Employer/Insurer’s statutory lien survived the full and final settlement agreement, as Maryland law does allow for an employer’s insured’s lien to be reimbursed upon the settlement of a claim against a tortfeasor. Conley appealed the Circuit Court’s decision to the Court of Special Appeals. The Court of Special Appeals ultimately affirmed the Circuit Court’s decision, albeit for different reasons.

The Court of Special Appeals found as follows:

·         Maryland Code, Labor and Employment §9-722 (hereinafter “LE” §9-722) provides the rules for settling claims under the Maryland Workers’ Compensation Act. While LE §9-722 does not address the impact of settlement on Employer/Insurer’s right to third-party reimbursement, LE §9-902 provides a framework for handling post-settlement third-party claims under the Maryland Workers’ Compensation Act. Prior to October 2018, LE §9-902 did not address whether an Employer/Insurer’s subrogation interest was waivable. However, the Court further considered the issue in light of the Maryland Workers’ Compensation Act amendment history and other general provisions in the Act.

·         The Court considered the language of LE §9-104, which in short states that except as otherwise provided in this title, an employee or employer may not by agreement, waive a right of the employee or employer under this title.

·         In light of LE §9-104, the Court held that an Employer/Insurer’s statutory subrogation interest was a “right” of the employer under the Maryland Workers’ Compensation Act, and pursuant to LE §9-104, the Employer/Insurer’s subrogation interest was not waivable by agreement, therefore, Trumbull did not waive its subrogation interest by failing to expressly reserve it in the full and final settlement agreement with Conley.

LE §9-902 was amended in October 2018 to include subsection (g), which requires an employee who recovered from a third-party to reimburse the Employer/Insurer if the Employer/Insurer has not waived third-party reimbursement. However, LE §9-104 was not affected by the amendment.

Change in Maryland Regulations Now Allows for Attorney’s to Accept Service on Behalf of Employers.

While a small change, the current version of Code of Maryland Regulations (COMAR) 14.09.03.05(E) has been amended to allow service of subpoenas to be made in accordance with the Maryland Rules. Under Maryland Rule 2-510(d), service of a subpoena may be made to a person authorized by law to receive service for the person named, or by service upon the attorney of a represented party. Previously 14.09.03.05(E) limited to service by way of personal service or certified mail to the person specified in the subpoena request. Now, not only can attorney’s accept service of behalf of employers, but they can also receive service by means other than personal delivery or certified mail in certain instances. Maryland Rule 2-121(c) allows for service by way of any other means that a Court deems appropriate in the circumstances and reasonably calculated to give actual notice. 

For further inquiries, please contact F&P Principal, Bert Randall, at (410) 230-3622 or by email atarandall@fandpnet.com.

I.        New Maryland Benefit Rates

a.    Effective January 1, 2017, the following are the maximum benefit rates for Maryland disability benefits:

                                  i.    State Average Weekly Wage - $1,052

                                ii.    Permanent Disability Under 75 Weeks - $176/week

                               iii.    Permanent Disability Between 75-249 Weeks - $351/week

                               iv.    Permanent Disability More than 250 Weeks - $789/week

 

II.        Regulatory Changes

a.    Responsibility of Insurers

                                  i.    The Commission adopted amendments to Regulation 14.09.12.02B. The purpose of the amendment is to alter the time period from 30 to 45 days within which an insurer must serve a specified notice on an employer and file a copy of the notice with a specified individual if the insurer is canceling or refusing to renew a workers’ compensation insurance policy before its expiration.

 

III.        Recent Cases in Workers’ Compensation

a.    Ordinary disability retirement benefits and Workers’ Compensation Benefits for partial disability are “similar benefits,’ subject to a statutory offset.

              &nnbsp;                   i.    Zakwieia v. Baltimore County, Board of Edu.,No. 2492 (Feb. 3, 2017).

1.    The Court of Special Appeals in Zakwieia addressed the issue of whether § 9-610 of the Labor & Employment Article entitled the Commission to offset Claimant’s workers’ compensation benefits for partial disability with her ordinary disability retirement benefits.

2.    The crux of this decision rests on the Court’s clarification that the purpose of the statute is to prevent double recovery for injured workers covered by both a disability pension plan and workers’ compensation.. According to the Court, “similar” refers to the nature of the benefit awarded to the employee, not the nature of the underlying injury. Thus, moving forward, workers’ compensation benefits for permanent partial disability benefits will constitute “similar benefits” to ordinary disability benefits, and will be subject to a statutory offset.

b.    Subsequent injuries do not necessarily preclude entitlement to Partial Disability Benefits.

                                  i.    Electric General Corp. v. Labonte,229 Md. App. 187 (2016).

1.    In the case of Electric General Corp. v. Labonte, the Court of Special Appeals determined whether a claimant’s subsequent injury represented an intervening accident that broke the causal connection between the claimant’s work accident and current complaints.

2.    The case provides guidance as to the effect of a subsequent intervening accident on a claimant’s entitlement to additional workers’ compensation disability benefits.Labonte suggests that a claimant’s subsequent injury does not necessarily preclude an employer and insurer from all liability, at least where permanent partial disability benefits are concerned. As a practical matter, however, the Commission may still weigh the severity of the subsequent injury and the nature of the treatment involved when apportioning an award of disability. Moreover, there is still clear authority that there is no further liability for a subsequent injury where temporary total disability benefits are concerned.

c.    The going and coming rule and its exceptions are not applicable to injuries that arise before an employee embarks on any work-related journey.

                                  i.    Prince George’s County, Maryland v. Proctor,228 Md. App. 579 (2016).

1.    The Court of Special Appeals considered whether injuries sustained on a claimant’s own front porch, while he was off-duty, and while he was not performing any police duties, arose out of and in the course of employment. 

2.    This case clarifies that the time, place and circumstances of the accident in relation to the employment are determinative of whether an employee’s injuries arise out of and in the course of employment. Accordingly, whereby where injuries are sustained prior to embarking on any work-related journey, the “going and coming rule” is not what bars the employee’s claim. It remains to be seen, however, whether any exception to that rule might apply for injuries arising before an employee embarks on a work-related journey.   

d.    An injured sole proprietor’s Average Weekly Wage (“AWW”) should be calculated using the net profit, rather than the gross earnings, of a sole proprietorship.

                                  i.    Long v. Injured Workers’ Insurance Fund, et al,225 Md. App. 48 (2016).

1.    The Court of Special Appeals determined whether an injured sole proprietor’s AWW should be based upon the income of the sole proprietorship, after deducting business expenses, or upon the gross profit of the sole proprietorship, without considering business expenses.

2.    This case explains the difficulties in using gross pay for the purposes of determining an injured sole proprietor’s AWW under section 9-277(b) of the Workers’ Compensation Act. The Court notes that failing to factor unreimbursed business expenses into a sole proprietor’s “gross earnings” would result in a windfall and would not be an accurate representation of the injured worker’s actual earnings.

e.    Employers and insurers that pay an award, which does not provide for attorney’s fees, are protected from subsequent claims for such fees.

                                  i.    Prince George’s County v. Minor,227 Md. App. 233 (2016).

1.    The case of Prince George’s County v. Minor dealt with whether employers and insurers are obligated to pay an approved attorney’s fees that are not provided for in an award.

2.    This case emphasizes the principle that the Worker’s Compensation statute and regulations “will only protect those attorneys who protect themselves.” A claim for attorney’s fees by an attorney representing a workers’ compensation Claimant is not a claim against either the Commission or the employer/insurer. Employers and insurers are obligated to pay an approved attorney’s fees only out of compensation awarded to the Claimant where there is an attached lien for such fees, not out of personal funds. Unless, however, there is a failure to respect a lawfully attached lien.

f.     Under the Free Transportation Exception to the “Going and Coming Rule,” injuries sustained during the employee’s commute arise out of and in the course of employment even when the free transportation furnished by the employer is not being used.

                                  i.    State of Maryland v. Okafor,225 Md. App. 279 (2015).

1.    In State of Maryland v. Okafor, the Court of Special Appeals discussed the extension of the free transportation exception to the “Going and Coming Rule” in circumstances involving personal injuries during an employee’s commute to work in a person vehicle.

2.    This case shows that once there is an obligation to provide free transportation, an employee’s workday commences when his or her commute to work begins. Thus, regardless of whether the employee is using the transportation provided, injuries sustained during the employee’s commute arise out of and in the course of employment on the basis of the free transportation exception. 

For further inquiries, please contact F&P Principal, Bert Randall, at (410) 230-3622 or by email at arandall@fandpnet.com.

I.                    New Maryland Benefit Rates

 Effective January 1, 2015, the following are the maximum benefit rates for Maryland disability benefits:

 State Average Weekly Wage – $1,005.00 (which represents the cap on temporary total disability, permanent total disability, and vocational rehabilitation benefits)

 Permanent Disability Under 75 Weeks – $168/week

 Permanent Disability Between 75-249 Weeks – $335/week

 Permanent Disability for 250 or More Weeks – $754/week

II.                  Regulatory Changes Effective July 20, 2015

Beginning July 20, 2015, two COMAR amendments impacting Maryland Workers’ Compensation Commission procedures became effective, one regarding judicial review and the other regarding legal representation and fees in dependency cases.

  1. Judicial Review Procedures

The first of the amendments will alter COMAR 14.09.11.01-.05, which address judicial review procedures. The stated purpose of the action is to comply with new Md. Rule 7-206 and 7-206.1,[1] and to update the language to accord with Labor and Employment Article, § 9-742, Md. Code Ann. The most substantial changes to the regulation concern documents required upon appeal of Commission and court decisions. The amendment requires that parties appealing a circuit court or appellate court disposition shall notify the Commission using a Cover Sheet for Action on Claims on Appeal, accompanied by a copy of the notice of appeal or petition for writ of certiorari. For circuit court proceedings, parties submitting a Cover Sheet for Action on Claims on Appeal to notify the Commission of a circuit court disposition no longer need to provide a copy of docket entries.

Additionally, COMAR 14.09.11.05 states that if the Commission exercises its continuing jurisdiction under Labor and Employment Article, §9-742, Md. Code Ann., to pass a supplemental order deciding an issue, the first petitioner/appellant shall file within 5 days of entry of the supplemental order: (1) a copy of the supplemental order with the court in which appeal is pending, and (2) a written certification with the Commission that the first petitioner/appellant has filed the copy of the supplemental order with the circuit or appellate court. The regulation now mandates that the written certification contain a description of the supplemental order filed and the date and manner of the filing. Lastly, petitioner/appellant must file the written request for any transcript required for inclusion in the record when the written certification is filed with the Commission.

The text of the amended judicial review procedures regulation can be found at: http://www.dsd.state.md.us/MDR/4209/Assembled.htm#_Toc417898860

  1. Legal Representation and Fees

The second of the amendments modifies COMAR 14.09.04.03. The purpose of this amendment is to address an ambiguity in the Schedule regarding fees for the representation of the dependents of deceased workers.

In cases involving claims of dependency where compensability is not contested, but theextent of dependency (partial or total, or the identity of a dependent, or both) is contested, the new rule clarifies that the Commission may approve a total attorney’s fee for attorneys representing all dependents:

(i)                  In an amount not exceeding five times the State average weekly wage in a case of partial dependency under Lab. & Empl. Art. §9-682, Md. Code Ann.; or

(ii)                In an amount not exceeding 12 times the State average weekly wage in a case of total dependency under Lab. & Empl. Art., §9-681 or 9-683.3, Md. Code Ann.

In cases involving a claim of dependency where neither compensability nor dependency is contested and a record is being made solely to determine to whom payments of compensation shall be made, the Commission may approve an attorney’s fee in an amount not exceeding two times the State average weekly wage.

Lastly, in a case involving a claim of dependency where compensability and dependency are contested, the Commission may approve an attorney’s fee (1) in an amount calculated under 14.09.04.03 §B(3)(a) in a case involving a claim of partial dependency under Lab. & Empl. Art. §9-682 or 9-683.3,[2] or (2) in an amount calculated under 14.09.04.03 §B(4)(a), in a case of total dependency under Lab. & Empl. Art. §9-681.[3]

No substantive provisions of COMAR 14.09.04.03 were deleted upon amendment; the new regulation simply serves as clarification as to proper attorney’s fees in cases involving claims of dependency.

The text of the legal representation and fees amendment can be found at:

http://www.dsd.state.md.us/MDR/4207/Assembled.htm

III.                Recent Cases in Workers’ Compensation

a.       The requirement of cross-appeal for Circuit Court to revisit issues decided by Commission against non-appealing party depends on whether re-visiting the issue would require the Court to reverse or affirm the Commission’s decision.

                                                              i.      Uninsured Employers’ Fund, et. al. v. Ronald White, 219 Md. App. 410, 100 A.3d 1275 (2014)

1.       In the case of Uninsured Employers’ Fund, et al. v. White, the Court of Special Appeals discussed the necessity of a cross-petition in certain instances involving appeals of administrative decisions to a circuit court.

2.       The case emphasizes the caution claimant’s attorneys must exhibit in deciding whether or not to file cross-petitions. Where claimants fail to file a timely cross-petition where a circuit court is revisiting an issue previously decided by the Commission against the non-appealing party, and if the reconsideration of the issue might lead to a reversed or vacated decision, a party will lose their opportunity to challenge the Commission’s decisions.

b.      Claimant attorneys are only entitled to a fee on a “final award” by the Commission after all appeals have been exhausted.

                                                              i.      Brunson v. Univ. of Md. Med. Sys. Corp., 221 Md. App. 583, 110 A.3d 713 (2015)

1.       The Court of Special Appeals discussed the right to attorney’s fees when (1) an initial award of temporary total disability (“TTD”) benefits is rescinded; and (2) a subsequent permanency award results in no compensation payable given the credit created by payment of TTD benefits, later rescinded.

2.       This case shows that a claimant’s attorney who loses his case on appeal may be unable to recover attorney’s fees because attorney’s fees, generally provided within the claimant’s award of compensation and/or benefits, will be unavailable where no award is given. The Code of Maryland Regulations 14.09.04.03(C)(1) provides: “Absent exceptional circumstances, the Commission may not approve an attorney’s fee in a case in which it is determined that the claimant is not entitled to any compensation or benefits.”

c.       Workers’ Compensation Commission does not have the authority to order the UEF to reimburse IWIF for benefits paid when there is another source of compensation.

                                                              i.      Injured Workers' Ins. Fund v. Uninsured Employers' Fund, 221 Md. App. 322, 108 A.3d 609 (2015)

1.       The Court of Special Appeals of Maryland considered whether the Workers’ Compensation Commission has the authority to order the Uninsured Employers’ Fund (“Fund”) to reimburse the Injured Workers’ Insurance Fund for benefits paid to a Claimant. In the instant case, because Chen was found to be an insured employer, the Fund was not required to pay benefits. The statute does not require the Fund to reimburse an insurer where its insured is a jointly and severally liable employer. Therefore, the Court held the Commission exceeded its authority when it ordered the Fund to reimburse IWIF for benefits paid.

2.       This case shows the importance of defining who is and is not an “employer” and its impact on the Fund’s need to reimburse insurers. The Fund is available for the sole purpose of funding compensation where there is no other source of compensation for claimants. Thus, where multiple employers and the Fund are jointly and severally liable, the Fund is not responsible for paying a claimant’s award.

d.      The SIF assessment on permanency awards is based on the total amount of a permanent disability awardbefore offsets are applied.

                                                              i.      Employer/Insurers should be aware that the 6.5% assessment payable to the SIF is based on the total amount of the permanent disability award prior to offsets.

                                                             ii.      NOTE: The Employer/Insurers in this case may petition the Court of Appeals for Certiorari and thus the issue should be closely monitored.

e.      Court of Appeals affirms the Commission’s right to combine awards for scheduled and unscheduled members for compensation tier purposes.

                                                               i.      Montgomery County v. Robinson No. 67, September Term 2010; and Board of Ed. ofMontgomery County v. Anderson No. 68, September Term 2010

1.       The court ultimately decided that the Workers’ Compensation Act’s remedial nature must be construed liberally in favor of an injured worker, and that combining awards for scheduled and unscheduled members serves such purpose. The court stated that nothing in LE § 9-628 and LE § 9-629 prohibits combining awards for scheduled members with awards for “other cases,” and a failure to allow such combination would lead to “strange, unfair and… illogical results.” Further, the court reasoned that the language within the second-tier benefits provision is broad and does not use the terms, “scheduled” and “unscheduled.” Thus, the court held the Commission may combine compensation awards to determine which of the three compensation tiers is appropriate.

f.        Entitlement to Temporary Total Disability benefits is still a medical question.

                                                               i.      Phuonglan Ngo v. CVS, Inc., et al., Court of Special Appeals, September 25, 2013

1.       In Phuonglan Ngo, the issue was whether a Claimant who has reached maximum medical improvement can receive temporary total disability benefits under the Maryland Workers’ Compensation Act.

2.       The Court found that temporary disability refers to a physical state and that employment potential does not fall into this category. The Court further opined that a Claimant does not need to be placed into suitable employment, but rather must be so limited in quality, dependability, or quantity, that a reasonably stable market for a Claimant does not exist.

g.       Clarifying reimbursement of the workers’ compensation lien/offset in a third party case.

                                                              i.      David Ross v. John Agurs and Progressive Casualty Insurance Company, No. 978, September Term 2012 (decided September 9, 2013)

1.       This case clarifies what amounts are included in a workers’ compensation offset by an uninsured/underinsured (“UM/UIM”) motorist carrier. It reaffirms that court costs and attorney’s fees should not be included in the amount the claimant “received” under a workers’ compensation case.

For further inquiries regarding Maryland law contact Mr. Randall at (410) 230-3622 or at arandall@fandpnet.com.

[1] Md. Rule 7-206 and 7-206.1 became effective on July 1, 2015. 7-206 is a general provision addressing transcript contents and expenses, statements in lieu of record, time for transmitting, shortening and extending of time, and duties of clerks. 7-206.1  applies to actions for judicial review of a decision of the Workers' Compensation Commission, and addresses review on and off the record, as well as electronic submission.

[2] 14.09.04.03 §B(3)(a) remains unchanged, and states that except as otherwise provided in § B(3)(b), where a final award of compensation is made for permanent partial disability, the Commission may approve an attorney's fee in a total amount not exceeding 20 times the State average weekly wage and computed as follows:

(i)            Up to 20% of the amount due for the first 75 weeks of an award of compensation;

(ii)           Up to 15% of the amount due for the next 120 weeks of an award of compensation; and

(iii)          Up to 10% of the amount due for an award of compensation in excess of 195 weeks.

[3] 14.09.04.03 §B(4)(a) also remains unchanged, and states that except as otherwise provided in § B(4)(b), in a case in which a final award of compensation is made for permanent total disability, the Commission may approve an attorney's fee in an amount not exceeding 20 times the State average weekly wage.


NWCDN MARYLAND WORKERS’ COMPENSATION UPDATE

I.       New Maryland Benefit Rates

            Effective January 1, 2011, the following are the maximum benefit rates for Maryland disability benefits:

            State Average Weekly Wage – $940 (which represents the cap on temporary total

            disability, permanent total disability, and vocational rehabilitation benefits)

            Permanent Disability Under 75 Weeks – $157/week

            Permanent Disability Between 75-249 Weeks – $314/week

            Permanent Disability for 250 or More Weeks – $705/week

            If you would like benefit rate cards prepared by Franklin & Prokopik detailing Maryland’s benefit rates from 2006-2011 or to subscribe to F&P’s quarterly Workers’ Compensation Newsletter, please contact F&P principal, Bert Randall, at (410)

230-3622 or by email at arandall@fandpnet.com.

II.      New Settlement Regulations Introduced In 2010      

The Centers for Medicare and Medicaid Services is charged with reviewing workers’ compensation settlement offers that contemplate future medical treatments. This past year, new regulations were approved regarding the content of Agreements for Final Compromise and Settlement, in order to align with CMS requirements. The changes were to COMAR 14.09.01.19 and included several additions to what an AFCS must contain, the most notable of which was a provision that the Insurer would reimburse Medicare for any payments Medicare made but for which the Insurer was responsible. The changes also included a requirement that an AFCS explain whether it requires approval by the CMS, and that it must contain a formal set-aside allocation, which must reflect a comprehensive analysis and projection of future injury-related medical needs and costs.

The full text of the new regulations may be found in blackline on the Maryland Workers’ Compensation website at:

http://www.wcc.state.md.us/PDF/Regs/Medical_Settlement_Reg_Change_Text.pdf

 

 

III.    New Vocational Rehabilitation Regulations Go Into Effect

The proposed amendments to the COMAR regulations on vocational rehabilitation practitioners were adopted and became effective on April 20, 2010. The amendments mandate that vocation rehabilitation providers enroll with the Commission and include a list of all registered practitioners employed by them. Additionally, the provider selection process was completely revised for situations where the parties cannot agree on a provider. Each party must submit to the Commission the names of three potential providers. Then each party must strike two of the providers submitted by the opposing party. The Commission will then select from the remaining list the provider with the highest priority (determined on a rolling list maintained by the Commission).

The full text of the newly-amended regulations may be found at: http://www.dsd.state.md.us/comar/comarhtml/14/14.09.05.09.htm

IV.    Recent Cases in Workers’ Compensation

 

One Injury Can Lead to Another: Finding Causation for a Subsequent Condition Caused by the Original Injury

On March 31, 2010, the Maryland Court of Special Appeals held in Wilson v. Shady Grove Adventist Hospital that the standard for establishing the causal relationship between an injury and employment is broader in workers’ compensation cases than in general tort claims in Maryland.

The Claimant was working as a psychiatric technician for Shady Grove Hospital when he injured his right knee while restraining a patient. One year later, the Claimant began complaining of pain in his left knee. Following a hearing, the Workers’ Compensation Commission found the left knee complaints to be related to the original injury and ordered an MRI of the Claimant’s left knee. The Employer and Insurer appealed, and following a trial on the merits, the trial judge instructed the jury, over Claimant’s counsel’s objection, that “causation means that [Claimant's] work related injury of July 14, 2006, to his right knee, is a cause of the condition of his left knee.” The jury was then asked, “Is the disability of the claimant’s left knee causally related to the July 14, 2006 injury?” The jury returned a verdict in the negative.

The Claimant appealed, alleging that the jury instruction did not correctly state the law, and the Court of Special Appeals agreed. In noting that plaintiffs must show evidence of probable cause in civil tort cases in order to demonstrate a causation nexus, the Court held that workers’ compensation claimants do not have to meet the burden of probable cause, but instead can cobble together an argument consisting of a sequence of events, proof of a possible causal relationship, and the absence of a competing cause. The Court held that the jury should have been instructed that it was the Employer and Insurer’s burden to prove that the Commission’s decision should have been reversed either because the right knee injury could not have led to the left knee injury or that there was an intervening cause that led to the left knee complaints. As this was not adequately conveyed to the jury, the Court of Special Appeals remanded the matter for a new trial on the merits.

Wilson v. Shady Grove Adventist Hosp., Court of Special Appeals of Maryland, No. 2588, Sept. Term 2008. 

 

The Unwritten Venue Rule: Place of Employment, Location of Injury, County of Residence . . . The Petitioner Has the Choice of Where to File an Appeal

 

The Maryland Court of Special Appeals decided LeCronier v. UPS on November 03, 2010, ruling that a claimant aggrieved by a decision of the Commission may seek judicial review in the circuit court for the county in which the claimant is employed, in addition to the counties where the claimant resides and where the accident occurred.

Jeffrey LeCronier suffered a work injury while working as a driver for United Parcel Service (“UPS”), and filed a claim with the Commission. After a hearing, it was denied on the ground that “the claimant did not sustain an accidental injury arising out of and in the course of employment.” LeCronier filed a petition for judicial review in the Circuit Court for Baltimore City, where he regularly did business making deliveries. UPS filed a Motion to Transfer Venue to the Circuit Court for Anne Arundel County pursuant to §9-738, arguing that LeCronier’s county of residence was Anne Arundel County. LeCronier filed a response to the motion and after a hearing, the Court issued an Order denying the Motion to Transfer Venue. UPS promptly filed a Motion to Reconsider Judgment, and the Court granted its motion without a hearing or explanation, and transferred the case to the Circuit Court for Anne Arundel County.

Trial commenced in Anne Arundel County, ultimately resulting in a jury verdict in favor of UPS. LeCronier appealed that decision to the Court of Special Appeals. LeCronier argued that §9-738 must be read in conjunction with Maryland’s general venue statute, Md. Code Ann., Cts. & Jud. Proc. §6-201(a), which “unless otherwise provided by law[,]” allows a civil action to be brought, among other places, in a county where an individual is employed. UPS argued that the proviso “unless otherwise provided” is applicable to §9-738, which allows a claimant to file a petition for judicial review in the circuit court “(1) that has jurisdiction over that person; or (2) for the county where the accidental personal injury . . . occurred.” In reviewing the purely legal question of where an appeal should be heard, the Court noted that the law prior to enactment of the Workers’ Compensation Act (the “Act”) allowed for an individual to be sued in the county of his or her employment. The Court noted that the General Assembly is aware of existing law when new legislation is enacted and held that the Act contemplated that a claimant could file a petition for judicial review in the county of employment. Thus, it was erroneous for the case to have been transferred from the Circuit Court for Baltimore City and the case was remanded for a new trial in that court.

LeCronier v. United Parcel Service, et al, Reported, Court of Special Appeals of Maryland, September Term, 2008, No. 02650.

Dependency Update: Court of Appeals Ruling on Connection Between Spousal Support and Permanency Benefits

 

In 2009, the Maryland Court of Special Appeals ruled that a surviving spouse may be entitled to permanency benefits from a deceased spouse due to being owed “a legal obligation to support” pursuant to Md. Code Labor & Employment §9-632(d). The Maryland Court of Appeals on October 25, 2010 reversed that decision in Wal Mart Stores v. Holmes, stating that “a legal obligation to support a surviving spouse does not arise by virtue of the marital tie alone.”

Patricia Holmes suffered an injury during the course of her employment with Wal Mart and filed a claim with the Workers’ Compensation Commission. The Commission awarded Ms. Holmes temporary total disability benefits until she reached maximum medical improvement. Prior to seeking permanency benefits from the Commission, Ms. Holmes died from causes unrelated to her work injury. Her spouse Mr. Larry Holmes filed Issues seeking permanent partial disability benefits based on Ms. Holmes’s accidental injury. He did not allege that he was entitled to benefits as a “dependant” under §9-632(c), but that his wife owed him a legal obligation to support pursuant to §9-632(d).

The Commission ruled against Mr. Holmes, and on appeal, the Circuit Court for Baltimore City affirmed. The Court of Special Appeals, after review of the legislative history of §9-632 and §10-201 of the Family Law Article regarding the right to spousal support, reversed. Wal Mart filed a petition for certiorari with the Court of Appeals, which was granted.

The Court of Appeals examined the legislative history behind §9-632. Ultimately the Court held that for the purposes of §9-632(d) “a legal obligation to support” a surviving spouse does not arise by virtue of the marital tie alone. The Court noted that “[n]o other affirmative, legal obligation to support a spouse, solely by virtue of the marital tie . . . existed or now exists in Maryland case law.” Without another source of legal obligation, such as a “legally enforceable contract, decree or order from a court of competent jurisdiction,” no legal obligation to support will exist. The Court held that §10-201 is inapplicable in the instant case because the language of §9-632 is not ambiguous and no further inquiry was warranted than the plain language of that statute. 

Wal Mart Stores, Inc. v. Holmes, Reported, Court of Appeals of Maryland, September Term, 2009, No. 141.

 

Responding to an Appeal? Consider Adding a Cross-Petition for Judicial Review

On March 1, 2010, the Maryland Court of Special Appeals determined that a party who does not cross-petition for judicial review has no protected interest in the case if the petitioning party chooses to dismiss the case.

The Claimant James M. Darby was injured in the course of his employment, the Employer contested the claim, and a hearing was held. The Workers’ Compensation Commission found the claim compensable, denied temporary total disability benefits, and ordered the Employer and Insurer to pay for causally-related medical treatment.

The Employer and Insurer petitioned for judicial review of the decision. The Claimant filed a Response to Petition for Judicial Review but did not file a Cross-Petition for Judicial Review. While the matter was pending before the circuit court, the parties agreed on a lump sum settlement. However, the Claimant died without signing the settlement agreement. The Employer then voluntarily dismissed its Petition for Judicial Review and the circuit court dismissed the Petition without prejudice. When the Claimant’s estate moved for reconsideration of that decision, the circuit court denied the motion, and Darby appealed to the Court of Special Appeals.

The Court of Special Appeals affirmed the decision of the circuit court and held that the Claimant, as a non-petitioning party, had no protected interest in the continuation of the matter at the circuit court level after the petitioning party chose unilaterally and voluntarily to dismiss its petition.

Darby v. Marley Cooling Tower Co., Court of Special Appeals of Maryland, No. 2242, 2008 Term.

 

For further inquiries regarding Maryland law contact Mr. Randall at (410) 230-3622 or at arandall@fandpnet.com.