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.