Maryland Courts Are on a Roll Interpreting Limitations Statute for Workers' Comp Claims

Maryland Courts Are on a Roll Interpreting Limitations Statute for Workers' Comp Claims

In the last 6 months, the appellate courts decided a couple of cases on limitations issues. The first was Stachowski v. Sysco Food Service of Baltimore, Inc., 402 Md. 506, 937 A.2d 195 (Court of Appeals, 12/11/2007). This case determined that the "last date of payment of compensation" is the date when the Claimant or the Claimant's attorney receives the check for the compensation payment and not the date it was issued.
 
Then there was Dove v. Montgomery County Board of Education, 178 Md. App. 702, 943 A.2d 662 (Court of Special Appeals, 03/05/2008), which further defined the necessary evidence required to show that within the 5-year period the Claimant's condition had indeed worsened (further explaining the Buskirk decision and limiting somewhat).

Until last Friday, May 30, 2008, the most recent case was Giant Food, LLC v. Eddy, 2008 Md. App. LEXIS 50 (Court of Special Appeals, 05/05/2008). In Eddy, which, by the way, was handled by Lynn Y. Oh, Esq. of Humphreys, McLaughlin & McAleer, LLC, the Court of Special Appeals determined that in certain circumstances the Commission's continuance of a claim past the 5-year period is insufficient to toll the statute (factually, the Claimant withdrew issues, but the Commission only marked it CROR - Continued Reset Only on Request - which the Court found insufficient to extend the matter past the 5-year period).

On Friday, however, another limitations issue was decided in Annapolis. In the case of Yingling v. Millennium Inorganic Chemicals, 2008 Md. App. LEXIS 63 (Court of Special Appeals 05/29/2008), the Court found that the Claimant's receipt of wages, from his employer as part of his regular pay, for the period of time attending an IME is not compensation that would extend the 5-year limitations provision. The reason for this was that LE 9-667 provides wage reimbursement for "actual lost wages." Since the Employer did not reduce the Claimant's pay, there was no actual loss of wages and, thus, no payment under LE 9-667. Notably and of very great concern is that this argument even made it as far as it did. More so, the fact that the Court refused to provide any guidance (such as categorically saying that wage reimbursement is not compensation) means that every time the Claimant attends an IME and requests and is paid for "actual lost wages," that the 5-year limitations period may begin anew.

Just a couple of thoughts:

1. If the Claimant is already outside the 5-year provision and wants medical treatment for which an IME is needed to determine whether to authorize the treatment, for whatever reason, do not pay the Claimant for the "actual lost wages" for the time attending the IME; and

2. Whenever paying the Claimant for the "actual lost wages" for the time attending the IME, code it as medical.

With regard to the first point, if the Claimant is already outside the 5-year period and requests the wage reimbursement, you can deny it on limitations grounds. If, as seems to have been argued in Yingling, the wage reimbursement is a form of compensation, then an argument can be advanced that the entitlement to that wage reimbursement is also governed by the 5-year limitations period.

As for the second point, this is more just cautionary. If the wage reimbursement is coded as indemnity, it will be easier for the Claimant to argue and the Commission to approve extension of the 5-year period based on that payment.

As for Employers, it seems quite clear that when the Claimant continues to be employed by them, that they should not reduce wages for time spent attending an IME. In the situation where the Claimant is no longer employed with the Employer, I am not sure much more than what has already been suggested can be done. I would note, however, that before making any payment of wage reimbursement, the proof of the "actual lost wages" should be required.