State News : Maryland

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.