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Recent Cases

Maryland

Court of Appeals

Johnson v. Baltimore
430 Md. 368 (February 25, 2013)

Background:   The claimant’s husband was a firefighter whom the Commission determined died as a result of an occupational disease arising out of and in the course of his employment.  She initiated her claim on January 10, 2006 and the Commission issued its award on February 26, 2010.  The Commission determined that § 9-503(e) applied allowing surviving dependents of a firefighter to collect both pension and workers’ compensation benefits after the firefighter’s death from an occupational disease, up to the amount of the firefighter’s salary.  The City argued that § 9-610 should apply because § 9-503 had not been amended until after the claimant had initiated her claim.  § 9-610 provided for a reduction in workers’ compensation benefits in the amount of the pension benefits received by a deceased worker’s dependents.

Ruling:            The Court of Appeals held that §9-610 applied and claimant’s benefits must be reduced in the amount of pension benefits received.  The Court reviewed the legislative history and concluded that there was not enough concrete legislative history to support the conclusion that § 9-503(e) was remedial.  Because § 9-503(e) was substantive, it was not intended to apply to the claimant’s claim because it had been initiated before § 9-503(e) was enacted.

Effect:             This case has a very narrow scope.  It effects only cases where dependents of firefighters who died of occupational diseases filed their claim prior to the effective date of § 9-503(e) but had their claim determined after that date.  Because of the very specific analysis conducted by the Court, this case only directly applies to § 9-503(e) claims.

Travco Ins. Co. v. Williams
430 Md. 396 (February 25, 2013)

Background:   The claimant was injured in a motor vehicle accident while on a work assignment in Washington, DC.  She obtained a compensation award from the DC Office of Worker’s Compensation.  The employer’s insurer asserted a subrogation right against any PIP or uninsured motorist benefits the claimant would recover arising out of the accident and sought to reduce its payments in the amount of that subrogation interest.  The claimant argued that she intended to reimburse the workers’ compensation provider after she received her PIP and UM benefits and therefore she should not be subject to a reduction of those benefits.

Ruling:            The Court of Appeals ruled that the plain language of the statute controlled and held that an insured’s benefits payable under PIP and UM coverage are reduced to the extent that the insured recovered workers’ compensation benefits and the workers’ compensation provider has not been reimbursed.

Effect:             A claimant cannot avoid a liability insurer’s right of subrogation through an expectation to reimburse the workers’ compensation provider for benefits paid.  Upon payment of PIP or UM benefits, an insurer has a subrogation interest unless the workers’ compensation benefits have been reimbursed.

Pro-Football, Inc. v. McCants
428 Md. 270 (August 23, 2012)

Background:   The claimant was a professional football player for the Washington Redskins.  He filed six claims with the Maryland Workers’ Compensation Commission arising out of six different accidental injuries, five occurring in states other than Maryland.  The Commission ruled that it did not have jurisdiction over the five claims arising out of injuries occurring outside of Maryland because the claimant was not a covered employee under the statute in those instances.  The employer argued that the claimant was regularly employed in Virginia instead of Maryland because the Redskins practice in Virginia and the claimant spends the bulk of his time practicing and otherwise preparing for games compared to the limited number of times he plays in Maryland. The employer also argued that claimant’s time in Virginia was not casual, incidental, or occasional because his contract required him to spend a significant amount of time in Virginia.

Ruling:            The Court held that the claimant was a covered employee under the statute because playing ten football games in Maryland constitutes regular employment in the state of Maryland.  Moreover, the Court concluded that the essential element of claimant’s job was to perform in the games, not to practice; practice was only ancillary and therefore incidental under the Act.  Finally, the Court reasoned that even though the claimant only played half of his games in Maryland in only played one game in any other state, making that work in other states incidental under the Act.

Effect:             Even though this case is very fact specific due to the unique nature of professional sports – finding that practicing professional football hundreds of times a year is not regular employment but that playing ten football games a year is – it may extend to other situations.  The opinion suggests that even if less than half an employee’s work is actually conducted in Maryland, the work could be considered regular employment in Maryland when compared to the work he does in each individual outside jurisdiction.

Pro-Football, Inc. v. Tupa
428 Md. 198 (August 22, 2012)

Background:  This claimant was another professional football player for the Washington Redskins.  While warming up for a game at Fed Ex Field in Prince George’s County, Maryland, the claimant injured his back.  The claimant initiated his claim with the Maryland Workers’ Compensation Commission.  The employer argued that the Commission did not have jurisdiction to consider the matter because the parties had entered into an employment contract that provided that any workers’ compensation claim was subject to the exclusive jurisdiction of the Virginia Workers’ Compensation Commission and the workers’ compensation laws of Virginia governed the claim.  The employer also argued that the Claimant had not suffered an “accidental injury” pursuant to the statute because the activity causing the injury was not unusual and extraordinary.
Ruling:            Addressing the jurisdictional issue, the Court held that § 9-104(a) prohibits agreements that exempt an employer from paying workers’ compensation benefits that are required by Maryland law and prohibits agreements where employees waive that right.  The Court refused to exclude forum selection clauses from the scope of § 9-104(a).  On the second issue, the Court stated that the activity leading to the injury does not have to be unusual or extraordinary, instead it is the injury itself that has to be unexpected, unintended, or unusual.  Therefore, injuries sustained by professional football players while playing or practicing football are accidental injuries and compensable.

Effect:             An employment contract wherein the employee waives his right to Workers’ Compensation benefits is void and unenforceable, the Commission has jurisdiction independent of the parties’ contract.  This decision also reinforces the interpretation that an accidental injury is compensable regardless of the riskiness of the claimant’s work or the foreseeability of the injury.

Bd. of Educ. of Prince George’s Cnty. v. Marks-Sloan
428 Md. 1 (August 21, 2012)

Background:   The claimant was injured in a motorcycle vehicle accident at work due to the negligence of a co-worker.  The Commission entered an Award entitling the claimant to workers’ compensation benefits and the Board of Education paid those benefits.  After that award, the claimant filed a civil suit against her co-worker for his negligence.  Because the co-worker was an employee of the Board, the circuit court required the Board be jointed as a party in the civil case.  The circuit court found that the co-worker was negligent and entered a judgment against both the co-worker and the Board.  The parties disputed whether Courts and Judicial Proceedings Article § 5-518 provides an indemnification provision that allows for a negligence action to be brought against a county board of education employee and for a judgment to be entered against that employee.  The parties also disputed whether the requirement in Courts and Judicial Proceedings Article § 5-518 that the county board of education indemnify its employee violate the exclusivity rule of the Workers’ Compensation Act when the employee is being sued for negligence arising out of a work injury.

Ruling:            On the first issue, the Court held that § 5-518 provided indemnification, not immunity.  Pursuant to § 5-518, a judgment could be entered against an employee and county board of education jointly, but only enforced against the county board of education.  Second, the Court held enforcing a judgment against an employer paying workers’ compensation under § 5-518 did not violate the exclusivity rule.  The Court explained that the Workers’ Compensation Act allows suit against a third-party tortfeasor regardless of whether some other party indemnifies that tortfeasor.  The Court determined that since contractual indemnification by an employer does not violate the Act, neither does statutorily imposed indemnification.  Finally, the Court stated that there is no windfall to the claimant here because the Board can reduce its civil liability payments in the amount of workers’ compensation obligation.

Effect:             An employer obligated to pay workers’ compensation benefits to a claimant will also be liable for civil damages to that claimant if the employer has a contractual or statutory obligation to indemnify a third-party against whom the claimant has a judgment.  The employer has a right to off-set its workers’ compensation payments based on its civil liability and vice versa as in any other statutory lien situation.

 

Court of Special Appeals

WMATA v. Washington
210 Md. App. 439 (March 21, 2013)

Background:   During the claim process, the claimant was denied temporary total disability benefits at the Commission level because he was shown working at a second job via surveillance evidence.  The employer fired the claimant for fraudulently attempting to obtain workers’ compensation benefits.  The claimant then filed for permanency and received an award from the Commission which both parties appealed.  During the circuit court appeal of the Commission’s permanency award, the claimant presented evidence of his pre-injury wages at WMATA and his post-injury income from his new business.  Claimant argued that based on the wage reduction between the two periods, he was entitled to a 75% impairment rating.  WMATA objected to claimant’s presentation of evidence of his pre-injury and post-injury wages as irrelevant and misleading.

Ruling:            The court held that it was not error to admit evidence of claimant’s pre-injury earnings even though the claimant was fired from WMATA because of misrepresentations made in the workers’ compensation proceedings.  Prior earnings were relevant to a determination of permanent impairment and were only excluded following a conviction of fraud.  However, it was an error to allow evidence of claimant’s post-injury income from his start-up business because profits derived from a business are not to be considered as a measure of loss of earning power unless they are “almost entirely the direct result of the claimant’s personal management and endeavors.”  In this case, because the claimant was managing multiple limousines, the business profits were not the direct result of his personal management or endeavors.

Effect:             This case is a fact-specific application of two principals of workers’ compensation law.  First, evidence of prior earnings is only excluded following a conviction of fraud, not an unopposed accusation of fraud.  Second, business profits can only be considered wages for the purposes of assessing loss of wage earning capacity for a permanency award in a very limited set of circumstances.

Shaffer v. Subsequent Injury Fund
207 Md. App. 255 (September 4, 2012)

Background:   Typically, when a claimant receives a permanency award against both his employer and the Subsequent Injury Fund, the employer makes its weekly payments pursuant to the award and when that period ends, the SIF then makes its weekly payments.  In this case, the claimant reached a full and final settlement with the Employer prior to the Commission entering an award. On April 13, 2009, the claimant was found permanently totally disabled with 55% of the liability apportioned to the employer and 45% attributable to the claimant’s preexisting conditions, and therefore payable by the SIF.  Because the employer had already paid its portion of the award, the Commission directed the SIF to commence the weekly permanency payments on October 9, 2009.  The SIF requested a rehearing arguing that its payments should commence on June 23, 2015, the date the employer’s share would have been completely paid if it was paying weekly.  The Commission agreed and amended its order.  The Claimant appealed the amended Award of Compensation.

Ruling:            The court held that a claimant cannot accelerate the payment of permanent total disability benefits from the SIF by entering into a lump sum settlement with the employer.  The SIF is not required to initiate permanent total disability payments until the conclusion of the employer’s payment period.  Accelerating the SIF’s permanent total disability benefits, which would continue for the rest of Claimant’s life, would cost the SIF (and provide the claimant) an additional $117,000 of benefits.  This would be an unacceptable windfall and the court feared it would lead to abuse by employees seeking to increase their recovery and employers seeking to limit their recovery, both at the expense of the SIF.

Effect:             The start date for PPD payments from the Subsequent Injury Fund will be calculated based on the timeline of PPD payments theoretically made by the employer, regardless of whether the employer and employee enter into a lump sum settlement agreement.

McLaughlin v. Gill Simpson Elec
206 Md. App. 242 (June 29, 2012)

Background:   The claimant received a permanency award on February 26, 2004 and the employer made the final payment pursuant to that award on July 27, 2004.  On February 15, 2005, the Claimant filed a Petition to Reopen and filed Issues seeking authorization for medical treatment.  The parties resolved the medical treatment issues and claimant filed a withdrawal of Issues and no hearing was held.  This process was repeated twice more with the claimant filing Issues for medical treatment and then withdrawing them prior to hearing.  On October 22, 2009, claimant filed Issues seeking worsening.  The claimant appealed the Commission’s determination that claimant’s Issues for worsening were barred by limitations.

Ruling:            The court held that Claimant failed to comply with the Regulations governing filing of a Petition to Reopen.  First, Claimant’s Issues for worsening were barred by limitations because those Issues had to have been filed with the Petition to Reopen.  Also, filing Issues for medical treatment did not put the Employer/Insurer on notice that Claimant would also be seeking worsening.  Finally, the Court rejected Claimant’s argument that he should be able to file a protective request for a change in disability status in the form of a Petition for Reopening within the five-year limitations period and later supplement that request by filing Issues after the statute of limitations has run.

Effect:             A claimant seeking to reopen a permanency award for worsening must file a Petition to Reopen and file Issues for worsening within the statutory period of five years from the last indemnity payment.  Claimants cannot “reserve” worsening by filing a Petition to Reopen within the statutory period and then waiting indefinitely to file Issues.

Hayes v. Pratchett
205 Md. App. 459 (June 5, 2012)

Background:   Hayes was driving out of the parking lot to leave work while Pratchett was moving a customer’s car within the scope of Pratchett’s work duties.  The two cars collided and Hayes sought both workers’ compensation benefits and filed a civil suit against Pratchett.  Hayes resolved all claims against his employer arising out of his accident.  Pratchett argued that as Hayes’ supervisor, Pratchett was performing a nondelegable duty of the employer and was immune from suit pursuant to the Workers’ Compensation Statute.

Ruling:            The court held that even though he was Hayes’ supervisor, in this instance Pratchett was not acting as supervisor, but instead as co-employee and his negligence was not within the scope of the nondelegable duties of the employer.  Pratchett was considered a co-employee and not a supervisor in this case because Pratchett was performing the task instead of assigning the task.  Pratchett owed a personal duty of care to Hayes and the Workers’ Compensation Statute does not preclude a civil suit arising out of Pratchett’s breach of his personal duty of care to Hayes.

Effect:             This is another fact-specific application of an existing standard in workers’ compensation law.  A claimant is allowed to proceed in a civil suit against a co-employee for a breach of that co-employee’s duty of care to the claimant without implicating the exclusivity rule.  However, a claimant cannot proceed in a civil suit against a supervisor who breached a nondelegable duty of the employer.

WMATA v. Williams
204 Md. App. 649 (April 26, 2012)

Background:   The claimant was attending work hardening for compensable injuries to his left knee and back when he was hit by a car and injured his right knee.  The claimant filed for benefits for the right knee injury claiming that it was causally related to the left knee and back injuries.  The Commission agreed with the claimant and the employer appealed.

Ruling:            The court held that there was no a sufficient causal relationship between the two accidents to find a direct causation.  The court relied on the holding in Mackin v. Harris, 342 Md. 1 (1996) which required both but for causation and proximate causation similar to the causation required in tort cases.  Because the right knee injury was caused directly by the car driver’s actions, it was not proximately caused by the prior work injury.  The court distinguished the right knee injuries from cases where the prior injury lessens the claimant’s ability to avoid the subsequent injury or the subsequent injury arises out of negligent medical treatment to address the prior injury.  Because the Commission decided the compensability of the right knee based on its causal relationship to the prior injury, the court remanded the case to the Commission to determine whether the right knee injury was compensable as an independent work accident.

Effect:             In order for a subsequent injury to be causally related to the prior compensable injury, the claimant must prove that the subsequent injury was proximately caused by the prior injury.  Simply showing that the subsequent injury would not have happened if the claimant had not suffered the prior injury is not enough.


 

District of Columbia

Jones v. Dep’t of Employment Services
41 A.2d 1219 (D.C. 2012)

Background:  Claimant fell down a flight of stairs injuring her left leg while working part-time as an usher at the D.C. Armory.  She filed a claim with the Office of Risk Management Disability Compensation Program seeking permanent partial disability benefits for her leg.  While the disability in her leg prevented her from returning to her part-time job as an usher, it did not affect her ability to perform her full-time job with the FBI.  Claimant’s treating physician opined she had a 20% impairment to her left leg.  An independent physician opined that Claimant had a 6% impairment.  Following an evidentiary hearing, the administrative law judge (“ALJ”) found Claimant was entitled to benefits for a 7% impairment of the left leg.  Claimant appealed contending that the award was not supported by substantial evidence and was not in accordance with the law.

Ruling:            The Court of Appeals found that the ALJ did not adequately explain her disability  award of 7%.  The Court remanded the case back to the agency so the basis for the ALJ’s decision could be explained further.  In doing so, however, the Court recognized that “the ALJ was properly aware that the disability determination was not the same as physical impairment, and required a determination of economic wage loss.”
Effect:             This case has been interpreted by the Administrative Hearings Division to mean that economic wage loss is a factor to be considered when awarding permanent partial disability benefits to a scheduled member.

Clement v. Sterne, Kessler, Godstein & Fox
CRB No. 10-201 (March 26, 2013)

Background:  Claimant injured his left leg at work and began receiving temporary total disability (“TTD”) benefits on April 14, 2000.  He was being paid TTD to the present and continuing pursuant to a Final Order issued in 2003.  In 2004 he received a 12% schedule award for permanent partial disability (“PPD”) for his leg.  Employer attempted to have the Final Order rescinded in 2007 and 2008, but both requests were denied.  Claimant’s TTD benefits were terminated by the Employer on November 12, 2009 as he had reached the 500 week maximum set forth in § 32-1505(b) of the D.C. Workers’ Compensation Act.  At the time his benefits were terminated, the Claimant had received 500 weeks of TTD and 25.9 weeks of PPD.  Claimant filed a motion for default and requested a penalty for the Employer’s failure to issue payment pursuant to the Final Order.  The AHD found the Employer was in default for failure to comply with the Final Order and assessed a 20% penalty.  The Employer appealed to the Compensation Review Board (“CRB”).

Ruling:            Section 32-1505(b) states that “for any one injury causing temporary or permanent partial disability, the payment for disability benefits shall not continue for more than a total of 500 weeks.”  The CRB conducted a more thorough review of the legislative history to determine the intent of the statute.  The CRB concluded from the history that the Council intended the phrase “temporary or permanent partial disability” to mean “temporary total and permanent partial disability” in order to prevent unlimited duration of payments.  The CRB vacated the AHD’s finding and remanded the case for further consideration.
Effect:             Claimant’s cannot receive more than 500 weeks of TTD benefits for each injury.  However, the statute is still ambiguous as to whether the 500 week limitation is an aggregate limit for both TTD and PPD or if a claimant can receive 500 weeks of each type of benefit.


 

Virginia

Thorpe v. Ted Bowling Construction
283 Va. 808 (2012)

Thorpe was the owner of a self-storage facility and operated a side-business installing porch railings.  He was approached by a customer, Clary, and was hired to complete the roofing and siding of an industrial building that Clary was constructing for Ted Bowling Construction.  Clary offered Thorpe and McMahon, one of Thorpe’s employees, $5,000 to complete the job, which he expected to be completed in one week.  Thorpe and McMahon agreed to divide the $5,000 payment equally.  While on the job, Thorpe fell through a skylight to his death.  The Commission determined that Thorpe was Clary’s employee at the time of the accident and that Ted Bowling Construction was his statutory employer.  The issue concerned the determination of Thorpe’s average weekly wage.

The Court noted that Thorpe was not employed for any period of time, but was rather hired to perform a job for a fixed price. The Court further noted that he had never before engaged in the kind of work he was performing for Clary and that neither party introduced any evidence of the prevailing wage paid at that time and in that area for similar work.  Since there was no evidence of any other wages Thorpe or any person had been paid for similar work, Thorpe’s average weekly wage was computed based upon the single payment of $5,000, to which he was to receive $2,500.  The Court held that it would not be fair and just to impose on the employer an award based on the assumption that the employee was hired for a continuing wage of $2,500 per week.  Therefore, the Court upheld the determination that Thorpe would have received $2,500 from Clary for the entire calendar year of 2006.  Divided by 52 weeks, this resulted in an average weekly wage of $48.08.

Giordano v. McBar Industries, Inc.
284 Va. 259 (2012)

Giordano was employed as an insulator for McBar Industries.  McBar was the general contractor on a construction project that involved the construction of a multi-story building.  McBar subcontracted with E.C. Couch Builder, Inc. (“Couch”) to construct and frame the building and A Bertozzi, Inc. (“Bertozzi”) to hang drywall.  Bertozzi hired Virginia Builder’s Supply, Inc. (“Builder’s Supply”) to deliver drywall.  Giordano was working on the first floor of the building when Builder’s Supply delivered approximately two tons of drywall to the second floor of the building.  The placement of these materials caused the walls to collapse, killing Giordano.  His estranged wife, Martha, filed a claim for benefits and the Commission determined that she was not a dependent of Giordano and was therefore not entitled to workers’ compensation benefits.  Martha, as personal representative of her husband’s estate, then filed a wrongful death claim in the Circuit Court against McBar, Couch, Bertozzi, and Builder’s Supply.  The defendants filed pleas in bar arguing that the exclusivity provision of the Virginia Workers’ Compensation Act barred Martha’s claims.  The Circuit Court sustained the pleas in bar.
Martha argued that because she was not a dependent of Giordano, she was not eligible for compensation under the Act and therefore neither the Act nor the exclusivity provision applied to her. The Court held that the applicability of the Act turns on whether the injury arises out of and in the course of employment, not on the compensability of the claim. Here, it was undisputed that Giordano was an employee of McBar and that his death was caused by an accident that occurred in the course of and arose out of his employment with McBar.  The Court held that the Act applied and the defense that Martha was not a dependant merely rendered the claim non-compensable.  As the Act applied, so must the exclusivity provision and therefore Martha’s wrongful death actions against McBar, Couch and Bertozzi were barred.  However, the Court held that the bar did not apply to Builder’s Supply because mere delivery of drywall was not within the trade, business or occupation of McBar.  

7-Eleven v. Fore
2013 Va. App. LEXIS 93

Claimant sustained a compensable injury to her right knee.  She underwent surgery and the treating doctor recommended an additional procedure.  Claimant refused on the basis that the surgery would be painful and there was no guarantee that a second surgery would result in a successful outcome.  The Court found that the Claimant was justified in refusing to undergo the second surgery and affirmed the reinstatement of disability benefits.

Giant Food v. Wu
2013 Va. App. LEXIS 69 (2013)

On her way to the bathroom in the back of the store, the Claimant’s purse caught on a merchandise hook hanging from a shelf.  This caused her to fall, injuring her left knee, arm and shoulder.  Holding:  Compensable injury.  The hook was a hazard peculiar to the workplace, thus Claimant’s injury arose out of her employment. 

Gobashi v. Fairfax County Public Schools
2012 Va. App. LEXIS 389 (2012)

Claimant was employed as a physical health attendant at an elementary school.  While walking in a “rush” to a classroom to attend to an autistic child, she felt a “pop” in her right knee.  Holding:  Not compensable.  Rushing to the classroom did not constitute an actual risk of the Claimant’s employment, nor was there any emergency requiring her to rush to the classroom.

CJW Medical Center v. Wallace
2012 Va. App. LEXIS 249 (2012)

While at work, Claimant reached into her personal handbag to retrieve a pen and scratched her finger on a defective strip of Velcro.  The finger later got infected and she filed a claim for benefits.  Holding:  Not compensable.  The injury did not arise out of the employment as the employer neither required nor encouraged Claimant to use her personal handbag and had no degree of control over the object which caused the injury.

Bernard v. Carlson Companies
60 Va. App. 400 (2012)

Claimant was employed as a waiter.  He was sampling a quesadilla when he choked on a partially chewed bite of the quesadilla and damaged his esophagus.  Holding:  Not compensable.  There was nothing unusual or abnormal about the food.  Claimant’s injury occurred in the course of his employment, but did not arise out of a risk of his employment.

Rodrigues v. Arlington County Schools
2012 Va. App. LEXIS 141 (2012)

Claimant fell while walking in a hallway injuring her right hip.  During her recorded statement, she indicated that she did not know what caused her to fall.  At hearing, she testified that her foot caught on a desk.  Holding:  Not compensable.  Evidence did not establish that Claimant’s injury arose out of her employment.

May v. Town of Bridgewater
2012 Va. App. LEXIS 106 (2012)

Claimant, a trash collector, stepped down backwards off the truck and injured his left knee.  The step was higher than a “normal” eight-inch step.  Holding:  Not compensable.  Stepping down was not strenuous or difficult, the truck was not moving, the surface he landed on was level, and the medical evidence was inconclusive regarding whether a higher step would produce more pressure on the knee than stepping down from an ordinary step.  Therefore, the injury did not arise out of his employment.

 

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