By Lance G. Montour, Partner, Humphreys, McLaughlin & McAleer, LLC.
Cases affecting MD WCC issues in 2010 were primarily questions of procedure. From a seemingly new requirement that a Cross-Appeal is necessary in most cases where the Respondent wants to make an argument that the WCC erred as well, to the definition of which Circuit Court is a proper venue for an Appeal, the appellate courts ruled on procedural questions more often than issues of substance. Even so, there were some particularly notable substantive issues, such as Anderson/Robinson v. Board of Ed. of Montgomery Co., 192 Md. App. 343, 994 A.2d 507 (2010), which explained how multiple injuries can justified enhanced compensation, or Schlosser v. Uninsured Employers' Fund, 414 Md. 195, 994 A.2d 956 (2010), which provided some assurance for Employers that Maryland will not claim jurisdiction over them without a sufficient basis. The Schlosser case was handled by Tim McLaughlin of Humphreys, McLaughlin & McAleer, LLC. Presently, there are still a number of other interesting cases pending in the appellate courts and some other decision not mentioned her that could justify review. For now, however, as Maryland is preparing for the 2011 legislative season. If the legislature is as active on WCC issues as has been the appellate courts, January to April will be a very interesting time here in the Free State!
Darby v. Marley Cooling Tower Co., 190 Md. App. 736; 989 A.2d 1221 (2010).
The case involved the procedures applicable to petitions for judicial review to the Circuit Court from the Workers' Compensation Commission. An Employer filed a petition for judicial review awarding payment of medical bills. The Order also contained a denial of temporary total disability benefits. The Claimant did not file either a separate petition for judicial review or a cross-petition for judicial review, presuming that the temporary total disability issue would be resolved when the Employer's issues were resolved at trial. The Employer then voluntarily dismissed the petition for judicial review (without the Claimant's consent, but by motion and order of court). The Claimant thereafter attempted to proceed with the appeal on the issue of the denied temporary total disability. The Court of Special Appeals ruled that consistent with the Maryland Rules, which provide a procedure for filing a cross-petition for judicial review, the Claimant could not proceed on the Employer's appeal for the issue of temporary total disability. Though a petition for judicial review is a de novo proceeding, being of that nature does not confer a right to the non-appealing party to have the non-appealing party's issues addressed.
Granite State Insurance Company v. Hernandez, 191 Md. App. 548, 992 A.2d 528 (2010).
The important point of this claim could be either of two necessary rulings made by the Court of Special Appeals in reaching its decision. The first is that the "presumption of correctness" does not serve as a justification for a Circuit Court to affirm a decision of the Commission when there are no reasonable inferences from the underlying facts, which would support the action taken by the Commission. In other words, when there is an appeal from a decision of the Commission and the issue is a purely legal one where the parties agree to the facts, the determinative fact as to that appeal is the law and not the action by the Commission. The second was that a Virginia Insurer could not be held responsible for payments of the Maryland workers' compensation claim under facts that failed to demonstrate any Virginia jurisdiction over the claim. The Court of Special Appeals ruled that when a policy of insurance is limited to a particular jurisdiction that is not Maryland, in order for application of the insurance policy to apply in Maryland, the claim must have been valid in the particular jurisdiction that is not Maryland.
Wilson v. Shady Grove Adventist Hospital, 191 Md. App. 569, 993 A.2d 120 (2010).
Another in the line of many cases dealing with the proper standard applicable to a petition for judicial review, the Court of Special Appeals identified the proper jury instruction for an issue involving causal relationship where the Claimant prevailed at the Commission. As indicated in this opinion, causation is demonstrated when the evidence, at a minimum, establishes beyond mere conjecture or guess work that the injury could have caused the consequence and that there was no other intervening cause. This is a bit farther than previous courts have gone in defining causation as it pertains to workers compensation claims. Presently, it would seem from the facts of this case that the ruling is limited to appeals by the Employer, where the Claimant prevailed at the Commission on an issue of causal relationship, but the future interpretation of this decision may extend it further.
Anderson/Robinson v. Board of Ed. of Montgomery Co., 192 Md. App. 343, 994 A.2d 507 (2010).
Montgomery County challenged, in this appeal, the Commission's practice of combining multiple permanent disabilities from a single accident, where the result was increased compensation paid to the Claimant. Under normal practice (and as the Court of Special Appeals confirmed), when a Claimant sustains injury to more than one body part, both of which involve a residual permanent disability, the number of weeks associated with each is determined and then added together for a determination of the total compensation due and payable. Montgomery County contended that such combination was inappropriate because it would make it easier for the Claimant to be awarded one second tier permanent disability, as opposed to two first tier permanent disabilities, the result of which is more money for the Claimant. The Court of Special Appeals confirmed the Commission's practice noting that the purpose of the legislature was to compensate the injured worker.
Schlosser v. Uninsured Employers' Fund, 414 Md. 195, 994 A.2d 956 (2010).
The Court of Appeals ruled that the site of employment remains a critical element for determining whether a Claimant is a "covered employee" of a direct employer, but also the statutory employer. In this case, the Claimant was a covered employee of a direct employer who was uninsured in Maryland. The statutory employer had insurance in Maryland, but had hired the direct employer for work only to be done outside the state of Maryland (one of the exceptions to Maryland jurisdiction). Since the work was to be done only outside of the state of Maryland and the accident was outside the state of Maryland, the Claimant would not have been a "covered employee" of the statutory employer, if he had actually been hired by the statutory employer in the first place. As decided by the Court of Appeals, an injured worker must be a "covered employee" of a statutory employer to receive benefits from the statutory employer and its insurer, notwithstanding the injured worker's status as a "covered employee" of the direct employer.
Willis v. Montgomery Co., 445 Md. 523; 3 A.3d 448 (2010).
This case involves the effect of a decision by the Workers' Compensation to deny an Employer's request for referral to the Maryland Insurance Administration Fraud Division. Under LE 9-310.2, the Commission is authorized to refer a Claimant for investigation that may lead to prosecution for fraudulently seeking and/or receiving compensation benefits. Montgomery County sought such relief from the Commission on the basis that the Claimant filed a claim but never disclosed subsequent injuries that Montgomery County believed were the true cause of the Claimant's injuries and disability. The matter was dismissed by the Circuit Court on the basis that the Commission's decision not to refer for investigation and possible prosecution was neither the denial nor granting of a benefits under the Maryland Workers' Compensation Act. The Court of Special Appeal reversed the decision of the Circuit Court on the basis that the decision not to refer was a final order and would give the Commission unlimited power with respect to such an issue.
The Court of Appeals reversed the ruling of the Court of Special Appeals. The Court's determination centered on whether the Commission's refusal to refer the matter granted or denied a benefit to the County. Pertinent to this determination was LE 9-310.1, a section which authorizes the Commission (upon a finding that the Claimant wrongfully obtained benefits) to order a reimbursement by the Claimant to the Employer. The County had argued that denial of the referral was tantamount to denial of a reimbursement of the benefits that were wrongfully obtained (the County only requested the referral for the investigation and possible prosecution and did not specifically or explicitly request reimbursement). The Court of Appeals disagreed indicating that the legal basis for a referral was different than the legal basis for reimbursement. Additionally, it was noted that the County was not prevented from: filing a complaint directly with the Office of the State's Attorney to seek the prosecution of the Claimant; or filing with the Commission to seek an Order for reimbursement.
The import of this case is mainly to heighten the awareness of the procedures relative to investigating and redressing issues of fraudulent claim filing or benefit seeking. Specifically, the Court of Appeals appears to have endorsed direct action by an aggrieved Employer in the filing a criminal complaint and to specific action by the Employer at the Commission level to seek reimbursement of wrongfully obtained benefits.
Thomas v. Panco Management of Md., LLC, ___ Md. App. ___; ____ A.3d ____, 2010 Md. App. LEXIS 144 (October 1, 2010).
The case is not a workers' compensation case, but one involving general precepts of tort law. Specifically, the Court of Special Appeals dealt with the application of the doctrine of the assumption of the risk as pertained to a slip and fall on ice. The question involved was whether a plaintiff faced with the prospect of black ice on her only means of egress from her apartment building could be found guilty of assumption of the risk and thus prohibited as a matter of law from recovery for her injuries. The Court of Special Appeals affirmed a trial court ruling that the plaintiff had assumed the risk of her actions as a matter of law.
The elements of an assumption of risk defense, as set forth by the Court are: 1) knowledge of the risk of danger; 2) appreciation of the risk; and 3) voluntary confrontation of the danger. In this case, the danger was that of "black ice." This was demonstrated by evidence that the plaintiff had observed both a wet sidewalk and lowering temperatures prior to her traversing the dangerous area. The plaintiff was found to be aware of the danger because she had testified to her care in exiting her apartment building. It was the voluntariness of her actions, however, that drew the most attention of the Court. Previous cases had described the question of voluntariness with regard to the choice of route or whether there was or was not a safe path on which the Plaintiff could have walked. In this case, however, the Court review numerous case and explained that question of voluntariness could also be shown by the Plaintiff's having a safe course of action that would have prevented the need to confront the danger. Plaintiff in this case was found to have opted not to have taken the safe choice of avoiding the danger - namely, that she did not have to go out of her apartment building.
The import of this case for workers' compensation matters has to do with subrogation issues. In light of the snow storms that ravaged the Mid-Atlantic area in the winter of 2009-2010, there are a number of slip and fall injuries where the Employer might seek recovery of workers' compensation payments on the basis of premises liability. Accordingly, it is important to be mindful of these claims with regard to whether the workers' compensation Claimant will be found in the subrogation claim to have voluntary ignored a safe course of action, not just a safe path that would have avoided the danger.
Wal*Mart Stores, Inc. v. Holmes, ___ Md. ___, ____ A.3d ____, 2010 Md. LEXIS 620 (October 25, 2010).
This case involved a determination of a surviving spouse's asserted entitlement to permanent disability benefits to which the deceased spouse could have been entitled. The Workers' Compensation Commission interpreted the applicable statue, LE 9-632(d), to require an affirmative showing by the surviving spouse that there was "a legal obligation to support" from the deceased, which was not done. In the Circuit Court, the Commission was affirmed as a matter of law. The Court of Special Appeals reversed finding that the Family Law Article supported "a legal obligation to support" on the basis of the marital tie alone (citing FL 10-201, the criminal non-support statute).
The Court of Appeals conducted an extensive review of the both the legislative history of LE 9-632 and Family Law doctrines and statutes pertaining to the question. The primary thrust of the Court's review and analysis was that the Legislature had modified the survivor section many times to come to the present version, which creates a hierarchy of those person to whom benefits may be paid subsequent to the Claimant's the death from unrelated causes. That hierarchy is for: payment to dependents; and then jointly to the surviving spouse where there is "a legal obligation to support" and minor children. The "legal obligation to support" issue was resolved by considering common law doctrines that previously required a husband to support a wife for necessaries. Those doctrines, the Court found had been abolished by the passage of the Equal Rights Amendment. The only remaining question was whether the Family Law Article in creating a criminal action for willful non-support of a spouse also created "a legal obligation to support." The Court of Appeals ruled that it did not.
The finding of the Court is succinct and can be seen in the language of the opinion. "No . . . affirmative, legal obligation to support a spouse, solely by virtue of the marital tie and independent of the doctrine of necessaries, existed or now exists in Maryland case law. . . . The only other source of a legal obligation of one spouse to another is a legally enforceable contract, decree or order from a court of competent jurisdiction."
Lecronier v. United Parcel Service, ___ Md. ___, ____ A.3d ____, 2010 Md. App. LEXIS 169 (November, 3, 2010).
This case pertains to the interpretation of that section of the Maryland Workers' Compensation Act that dictates in which Circuit Court a petition for judicial review will be heard. The law provides for alternate criteria in determining the proper venue, which is either the County (or Baltimore City) where the accident occurred, or the County (or Baltimore City) that has jurisdiction over the party that filed the appeal. In this claim, the accident occurred outside of the State of Maryland. The Claimant who did not prevail at the Commission filed in Baltimore City. The Employer objected, asserting that venue was only proper in Anne Arundel County where the Claimant resided. Eventually, the case was transferred to Anne Arundel County and the Employer prevailed. The Claimant filed an appeal to the Court of Special Appeals on the grounds that the transfer was improper.
The Court of Special Appeals agreed with the Claimant. In reasoning that the venue was proper in Baltimore City, the Court referred to the general rules for determining jurisdiction over a person that are contained in the Courts & Judicial Proceedings Article. Those rules provide for venue in the locale that has jurisdiction over the person of a defendant in most legal actions. Venue in that regard is defined based on residence, but also the place where the individual regularly conducts business or is employed. As an employee of UPS, the Claimant asserted that he regularly made deliveries (i.e., conducted business) in Baltimore City. The Court, therefore, agreed with the Claimant and struck the decision in favor of the Employer and remanded the case with instructions for transfer to and a new trial in the Circuit Court for Baltimore City.
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