Maryland workers’ compensation: causal relationship required to relate a second injury to original
A recent Maryland Court of Special Appeals decision, Washington Metropolitan Area Transit Authority v. Williams, 2012 Md. App. LEXIS 46 (Md. Ct. Spec. App. 2012) has clarified the status of the law in Maryland with respect to the causal relationship required to demonstrate that a second injury (which is not physically related to the original injury, such as where a knee injury causes back pain) is causally related to an original injury, and thereby compensable.
Jan Williams, the claimant, was a mechanic for WMATA and was working for his employer in 2008 when he injured his back and left knee on the job. In March of 2009, Mr. Williams was injured while returning from lunch to physical rehabilitation for the first injury when a driver backed into him, causing injury to Williams' right knee. The Maryland Workers' Compensation Commission found the second injury to be causally related to the original injury, and the Maryland Circuit Court for Prince George's County affirmed that finding. However, the Court of Special Appeals reversed, and found that the second injury was not causally related to the original injury.
WMATA relied upon a 1996 Maryland Court of Appeals decision, Mackin v. Harris, 342 Md. 1 (1996) in support of its assertion that the second injury was not causally related to the original injury. In Mackin, the employee had slipped and fallen on a patch of ice on his way to obtain physical therapy for a work-related injury. Id. at p. 2-3. The Mackin court noted that for a subsequent injury to be compensable, it must be the "direct and material result of a compensable primary injury." Id. at 7. The Mackin court went on to note that while Professor Lex. K. Larson, a noted authority in the field of Workers Compensation law, advocated a "but-for causation" approach to the issue, the Mackin court felt this was too broad a standard, and that acceptance of that standard "leads to rather extraordinary results." Id. at p. 9.
The Williams court found that while the Prince George's County Circuit Court had utilized Mackin in its analysis of the issue, the Circuit Court had missed the fact that the Mackin court advocated for a much more narrow standard-- namely, that the subsequent injury must have been a "direct causal connection" between the original compensable injury and the subsequent injury in order to have been proximately caused by the original injury. 2012 Md. App. LEXIS at p. 11. Using that standard, the Williams court concluded that Mr. Williams second injury directly resulted from a cause unrelated to the first injury-- namely, the driver's actions in striking Mr. Williams with his car in the parking lot. Id. at p. 12. Because the driver's actions had no connection whatsoever to the original injury, there was no proximate cause between the original injury and the subsequent injury. (Had the same situation been presented using the "but-for" standard of causation, the claim would arguably have been compensable-- as but for the original injury, Mr. Williams would not have been in the parking lot and would not have been struck.)
While the Court reversed the Circuit Court's findings, it remanded the matter in order to resolve a different issue-- whether the subsequent injury would be compensable as a new work-related injury, standing alone. As such, the matter was remanded to the Maryland Workers' Compensation Commission to determine that issue.
Posted by Padraic K. Keane on 05/07/2012 at 05:04 PM
Virginia Insurance Coverage: Supreme Court interprets auto policy’s workers compensation exclusion
In Christy v. Mercury Casualty Company, No. 102138 (March 2, 2012), the Supreme Court of Virginia held that an exclusion in an automobile insurance policy barred the insured from receiving any payment for medical expenses where a portion of medical expenses had already been paid by workers' compensation benefits.
The plaintiff police officer was a passenger in a car driven by a Washington County sheriff's deputy. The car was struck from behind, and the plaintiff sustained a number of injuries. The parties did not dispute that the accident arose out of and occurred during the course of the plaintiff’s employment with the town. Among other injuries, the plaintiff’s physician opined that he experienced a tear of the labrum in his left shoulder as a result of the accident, that required surgery.
At the time of the accident, the plaintiff was covered by three different insurance policies. The Town of Abington obtained its workers’ compensation coverage through the Virginia Municipal League Insurance Programs ("VMLI"). The plaintiff received his primary health insurance coverage through a physician-hospital organization ("PHO"). Additionally, the plaintiff was insured under an automobile liability policy issued by Mercury Casualty Company. The Mercury policy included coverage for medical expenses incurred as a result of injuries arising out of the use of a motor vehicle. In relevant part, the policy provided that it did not apply "to bodily injury sustained by any person to the extent that benefits therefor are in whole or in part payable under any [workers'] compensation law."
The workers’ compensation insurance carrier, VMLI, paid a portion of the plaintiff's total medical expenses. However, VMLI denied claims for the plaintiff’s surgery to repair his labrum, asserting that the injury was a pre-existing condition and therefore not compensable under the workers’ compensation policy. The balance of the plaintiff's medical expenses was either paid or resolved by the plaintiff and the PHO.
The plaintiff subsequently submitted a claim to Mercury demanding payment under the medical expense coverage of his policy. Mercury denied the claim, asserting that the exclusion provision barred coverage due to the fact that some of the plaintiff’s medical expenses were, in part, payable under workers’ compensation law.
On appeal, the plaintiff argued that the exclusion applied only “to the extent” that some portion of his medical expenses were paid by workers' compensation benefits. The plaintiff argued that the exclusion acted only to offset any amount actually paid by the workers' compensation carrier, without regard to whether he successfully pursued a claim for all medical expenses. In doing so, the plaintiff argued that the policy language operates to prevent a "double recovery" by not allowing the insured to receive full payment for medical expenses from both a workers' compensation provider as well as an automobile insurance provider.
Defendant Mercury argued its interpretation of the exclusion, asserting that it excluded all coverage if any portion of plaintiff’s medical expenses were subject to workers’ compensation.
The Court ultimately found in favor of defendant Mercury Casualty, holding that the policy exclusion limited the scope of coverage for medical expenses, rather than the amount of coverage in the form of a set-off against workers’ compensation benefits. The court noted the fact that VMLI did pay a portion of plaintiff’s medical expenses pursuant to its workers' compensation policy. The court also noted that there was no dispute over whether the accident arose out of and in the course of the plaintiff's employment. Accordingly, the Court held that the clear and unambiguous language of the exclusion permitted defendant Mercury Casualty to deny coverage where the expenses were payable under workers’ compensation law. Thus, the exclusion permitted Mercury Casualty to deny coverage for any expenses which would have been subject to workers' compensation coverage by VMLI without regard to whether all of those expenses were actually paid by VMLI.
Maryland Workers’ Compensation Defense: Court rejects special mission exception
In Garrity v. IWIF, No. 1185, September Term, 2010 (Md. App. February 9, 2012), appellant was a part-time bailiff at the District Court for Baltimore City, where he was involved in an automobile accident as he was returning to the courthouse. Appellant had already arrived at work earlier in the morning but realized the tie he was wearing, a Christmas themed tie, was inappropriate for work. Additionally, shortly after realizing his tie did not conform to his usual work attire, Appellant spilt coffee on his shirt and tie, which prompted him to go home to change. Believing it was ok to run this errand, Appellant asked the other bailiff assigned to the courtroom to cover for him. While traveling back from his house to the courthouse, Appellant was struck head-on by another vehicle. The Workers’ Compensation Commission found that Appellant’s injury arose out of and was in the course of his employment. A Petition for Review was filed and Appellant attempted to show that his claim was compensable under the special mission and dual purpose exceptions to the going and comings rule, as well as the personal comfort exception. The Circuit Court for Baltimore City reversed the Commission’s findings and Appellant filed an appeal with the Court of Special Appeal where the Circuit Court’s decision was ultimately upheld.
The special mission exception, first recognized in Maryland in Reisinger-Siehler Co. v. Perry, 165 Md. 191, (1933), is “when an employee is acting in the course of employment when traveling on a special mission or errand at the request of the employer and in furtherance of the employer’s business, even if the journey is one that is to or from the workplace.” Here, Appellant relied upon the “Policy on Appropriate Attire and Appearance,” which governs Appellant’s dress code at work. Appellant argued that the policy “mandated” that he leave work and change his shirt and tie once he spilled coffee on them. The Court of Special Appeals correctly identified that the special mission exception is raised when an employee, acting at the direction of their employer, is injured on the job. Here, Appellant was not directed by his employer to go home and change his shirt and tie, therefore the special mission exception must fail. The Court of Special Appeals went further, stating that the policy which Appellant relied upon simply provides “guidance on professional attire,” and is not a mandate requiring employees to leave work when they realize their attire is out of compliance.
While the Court of Special Appeals determined that the “Policy on Appropriate Attire and Appearance” did not provide express authority to leave work, Appellant contends that it contained implied authority. In support of this belief, Appellant argued that a liberal policy existed for bailiffs to run errands. Even if bailiffs were able to run minor errands without authorization, the Court of Special Appeals determined that this practice was never approved or acquiesced to by supervisors.
The dual purpose doctrine, as outlined in Stotskin v. Bd. of Ed. Montgomery County, 11 Md. App. 355 (1997), is applicable when a “trip involves the performance of a service for the employer which would have caused the trip to be taken by someone even if it had not coincided with the personal injury.” Relying upon this doctrine, Appellant reasoned that because he had his radio with him to monitor courtroom communications and that the dress policy stated that an employee must maintain “a professional and appropriate image . . .,” his injury should be compensable. The Court of Special Appeals determined that neither express nor implied authority to leave the courthouse without authorization was provided. Furthermore, Appellant’s decision to take his radio with him could not remedy the situation because if he was needed, there would be no way for him to comply. The Court reasoned that only if Appellant’s supervisors authorized him to leave and take his radio with him, would the dual purpose doctrine apply.
Appellant also relied upon the personal comfort exception as set forth in King Waterproofing Co. v. Slovsky, 71 Md. App. 247 (1987). In Slovsky, Claimant was a part-time telephone solicitor who was struck by an automobile while on a paid break. At the time Claimant was struck, he was crossing the street in order to get food and a drink from a nearby restaurant. To determine whether Claimant’s injury was compensable, the Court considered whether the Claimant sustained his accidental injury while engaged in some personal comfort activity incidental to his employment. The Court reasoned that an injury during an off-premises coffee break could easily occur during an on-premises coffee break; therefore, the injury was compensable.
Here, the Court of Special Appeals recognized that in order for the personal comfort exception to apply, there must be some mutual benefit between the employee and employer. While Appellant believes the personal comfort exception was applicable because he would have been compensated while running personal errands, this activity was neither encouraged nor accepted by his supervisor and his argument must therefore fail.
The Court of Special Appeals affirmed the Circuit Court’s ruling finding that Appellant did not suffer a compensable injury arising out of and in the course of employment.
For further information concerning the defense of Maryland workers' compensation matters, call Steve Schwinn at 202-496-2806.
Posted by Mark Kopelman, Associate on 03/11/2012 at 01:31 PM
Employee’s disclaimer of third party tort action against employer’s customers upheld by D.C. Court
In Brown v. 1301 K Street Limited Partnership, No. 09-CV-695 (D.C. Nov. 23, 2011), the D.C. Court of Appeals upheld the validity of a disclaimer signed by a security guard, in which she agreed that her workers' compensation benefits from her employer would be her sole remedy and that she waived any rights she had to make a claim against her employer's customers arising from injuries covered under the Workers' Compensation statutes.
The wording of the disclaimer was as follows:
I understand that state Workers' Compensation statutes cover work-related injuries that may be sustained by me. . . . As a result, and in consideration of Allied Security offering me employment, I hereby waive and forever release any and all rights I may have to:
- make a claim, or
- commence a lawsuit, or
- recover damages or losses
from or against any customer (and the employees of any customer) of Allied Security to which I may be assigned, arising from or related to injuries which are covered under the Workers' Compensation statutes.
The plaintiff had slipped on a wet floor while working as a security guard for Allied Barton Security, which had a contract with the building owner and property manager to provide security services. Plaintiff received a lump sum workers' compensation settlement for her injuries, and then filed suit against the building owner and property manager. In her action, she alleged negligence, OSHA violations, and violation of the D.S. Industrial Safety Act.
The defendants were granted summary judgment on the basis of the above disclaimer, and the plaintiff appealed.
On appeal the plaintiff argued that the disclaimer was invalid because it is an agreement to forego her right to compensation under the D.C. Workers' Compensation Act. The Court rejected that argument, because the disclaimer did not purport to limit in any way the plaintiff's right to compensation under the Act.
The Court also rejected the plaintiff's argument that the disclaimer was too general, finding that the parties' intent is clear from the face of the disclaimer.
The Court rejected the argument that the disclaimer violated public policy. The Court has previously invalidated only a few exculpatory clauses on public policy grounds: an exculpatory clause in a will that excused self-dealing by the personal representative; and an exculpatory clause in a lease the excused the landlord's obligations under the implied warranty of habitability. However, the Court found "nothing violative of public policy in an employer's choice to protect its customers from liability for workplace injuries, choosing instead to compensate its employees itself exclusively through workers' compensation."
Finally, the Court rejected the plaintiff's argument that the disclaimer violated the public policy underlying the OSHA and ISA statutes. The Court noted that those statutes are not strict liability statutes, but are analogous to negligence in that they establish standards of care. "Although releases purporting to limit liability for gross negligence, willful acts, or fraud will not be enforced, releases are viable and enforceable when they limit liability for ordinary negligence."
This case illustrates that the Courts are willing to allow businesses to structure their relationships to apportion risk, at least where negligence claims are concerned. Here, the security company may end up paying higher workers' compensation insurance premiums than it would without the disclaimer. On the other hand, the security company can adjust its fee structure to account for its insurance costs.
Posted by David B. Stratton on 01/16/2012 at 11:19 PM
District of Columbia
Tolling the statute of limitations for change-in-condition applications under Virginia Act
In Ford Motor Company v. Gordon, 281 Va. 543, 708 S.E. 2d 846 (2011), the Court considered the proper interpretation of Va. Code sec. 65.2-708(A) and 65.2-708(C), which govern the tolling of the statute of limitations for filing a change-in-condition application for workers' compensation benefits. The Court held that the Code sec. 65.2-708(A) statute of limitations runs anew under each successive award of compensation for a particular compensable injury and is triggered on the last day for which compensation was paid. The Court also held that Code sec. 65.2-708(C), by providing for wages meeting certain prescribed conditions to be treated as compensation under sec. 65.2-708(A), applies to each such award.
The effect of these statutes is best understood by their application to the facts of the Gordon case. The claimant sustained a compensable injury in Ford's plant in Norfolk, Virginia on January 9, 2000. Based on this injury, the Commission entered a series of awards of compensation to Gordon for various periods of TTD and PD. The last of these awards was entered on January 13, 2003, which was an open-ended award for TTD. Gordon received his last payment under this award on February 23, 2003. Thereafter, between periods of TTD, he worked in light duty positions for Ford. He worked light duty from October 23, 2000 to January 3, 2001; from April 1, 2002 through June 30, 2002, and from April 20, 2003 through September 11, 2006, earning wages equal to or higher than his pre-injury average weekly wage. On September 11, 2006, he was temporarily laid off from his position at Ford because the plant was shut down for production reasons, and he filed a change-in-condition application on September 25, 2006, seeking TTD benefits based on lost wages caused by this change in condition.
The Court's holding meant that because Gordon worked in a light-duty capacity for Ford from April 2003 through September 11, 2006, and was paid wages equal to or greater than his pre-injury wage, under Code sec. 65.2-708(C), the wages that Ford paid to Gordon during the first 24 months must be considered "compensation" for purposes of tolling the statute of limitations under Code sec. 65.2-708(A). Accordingly, since the application for benefits was made within 24 months after the last day for which compensation was paid, the application was timely.
Subsequent to the Gordon decision, the Virginia Court of Appeals has applied Gordon in Prince William County School Board and VML Insurance Programs v. Rahim, No. 1737-10-2 (Va. App. July 12, 2011). There, the Court held that in a case where the Commission had entered a "medical-only" award, under Code secs. 65.2-708(A) and 708(C), the claimant had 24 months from the last day compensation was paid either pursuant to an award or pursuant to the requirements of subsection C within which to file a change-in-condition application. In so ruling, the Court distinguished Mayberry v. Alcoa Bldg Prod., 18 Va. App. 18, 441 S.E.2d 349 (1994), and limited that decision to its facts, on the grounds that in Mayberry, there had been no formal award entered by the commission, and voluntary payment of medical expenses by the insurer is not the payment of compensation which tolls the running of the statute of limitations.
Posted by David B. Stratton on 01/16/2012 at 08:49 PM
Virginia Workers Compensation: Court affirms successful res judicata defense
In Brock v. Voith Siemen Hydro Power Generation et al., No. 0428-11-3 (Va. App. Nov. 1, 2011), the Court affirmed a decision by the Virginia Workers Compensation Commission that the claimant was barred by res judicata from litigating injuries he alleged in his initial claim but did not raise at his evidentiary hearing.
As a result of a work injury, Brock filed a workers' compensation claim seeking benefits for injuries to his shoulder, back, and hips. He later amended his claim to allege additional injuries to his head and leg. A deputy commissioner scheduled a hearing and advised Brock's counsel that all issues will be considered at the upcoming hearing. Brock's counsel requested a continuance, and the hearing was continued for more than three months.
At the hearing, Brock and the employer stipulated that he had injured his left shoulder. Brock, who was represented by counsel, produced no evidence of his other injuries. Significantly, Brock also did not request additional time to obtain evidence, did not ask the deputy commissioner to hold the record open to later consider the other injuries, did not seek to withdraw any part of his claim, and did not ask the deputy commissioner to defer for later determination issues which were unripe for adjudication.
The deputy commissioner entered an award for benefits for the stipulated injury to the left shoulder, and dismissed the claim. Neither party appealed the order to the full commission.
Months later, Brock, proceeding pro se, filed a claim seeking benefits for injuries to his back, head, shoulder, leg, and hip arising out of the same workplace accident. At a hearing for these claims, the employer argued that these claims had been abandoned and argued that they could not be properly considered. The deputy commissioner held that Brock had abandoned the claim for injuries beyond the stipulated left shoulder injury, but declined to apply res judicata, instead finding that the abandonment was in effect a non-suit.
The employer appealed to the full Commission, arguing in part that the doctrine of res judicata barred the claims for the other alleged injuries. The Commission agreed that res judicata barred Brock's allegedly new claim for injuries. Brock then appealed the Commission's decision.
The Court of Appeals affirmed the Commission, noting in pertinent part that claims precluded by res judicata include those "made or tendered by the pleadings" as well as those "incident to or essentially connected with the subject matter of the litigation, whether the same, as a matter of fact, were or were not considered." The Court noted that these res judicata principles apply to workers' compensation cases.
The Court observed that on appeal, Brock "simply asserts the right to litigate the case on an injury-by-injury basis at separate hearings with each resulting in separate award orders." The Court rejected that argument, stating, "Like the commission, we are unaware of any 'conceivable public policy which would be furthered by such piecemeal adjudication of claims.'"
This case illustrates the importance of claimant's counsel taking formal steps at a workers' compensation hearing to preserve claims which may not be ready for adjudication.
For employers, insurers, and their defense counsel, this case underscores that in any file where the employee is alleging additional injuries arising out of an accident which has already resulted in an award, it is important to fully understand what issues were raised in the prior proceeding, what issues were decided, and what issues were preserved for later adjudication.
Posted by David B. Stratton on 01/16/2012 at 03:41 PM
Presumption that death on the job was work-related held not to apply in Virginia comp appeal
In Puller v. Fairfax County School Board, No. 0886-11-4 (Va. App. 2011), the Court affirmed the Commission's denial of workers' compensation benefits to a widow whose husband died of a heart attack while performing his job as a mail delivery truck driver.
The decedent, who worked for the School Board, was found dead in the cargo area of his mail truck, with numerous burns on his body from the metal floor of the truck. Following an autopsy, the state medical examiner reported that the cause of death was hypertensive and aatheroscleratic cardiovascular disease, and that the skin changes were postmortem, due to contact with a hot surface.
The police investigation found that the floor of the mail truck's cargo area could reach the temperature of 120 degrees. The police concluded that the decedent died of a heart attack while backing his van, then fell to the floor of the van where he sustained the burns.
The widow filed a claim for workers' compensation benefits, on the theory that working in the July heat caused the heart attack which killed the decedent. She supported her claim with opinions from a cardiologist and an internist that the cardiac arrest was caused by the extraordinary heat in the vehicle.
The employer offered the opinion of a cardiologist that the ambient temperatures on that day were fairly average, and that the cardiac arrest was the product of risk factors including hypertension, diabetes, hypercholesterolemia, and cigarette smoking. The cardiologist concluded that the decedent's death was not work related, and resulted from natural causes and that the burns were as a result of post-mortem heat exposure. The employer also offered the decedent's medical records, which indicated that he had been transported to a hospital for chest pains, one month before his death.
The deputy commissioner denied the claim for benefits, and that ruling was affirmed by the Commission.
On appeal, the Court considered whether the claimant, under these circumstances, was entitled to a presumption that the decedent's death was work related. There is a presumption that a death at the workplace is work related, but it applies only to cases where the employee is found dead at his place of work or nearby, and even then, only when no plausible inference suggests that the accident might be noncompensable. That is, the only rational inference to be drawn must be that death arose out of an in the course of employment. No presumption can be said to arise where an employee suffers from pre-existing heart disease and subsequently dies of cardiac arrest while at work.
Here, since it was undisputed that the decedent had a pre-existing heart condition and that he died of cardiac arrest while at work, the Commission correctly ruled that no presumption applied. The Court also concluded that there was sufficient evidence supporting the Commission's decision as to the cause of death.
This case illustrates the importance of careful review of the decedent's medical records in any workers' compensation claim arising from a death on the job.
Posted by David B. Stratton on 01/13/2012 at 11:29 PM
Virginia Workers Compensation award reversed because employer had insufficient number of employees
In Ragland v. Muguruza, No. 0524-11-4 (Va. App. 2011), the Court reversed the Virginia Workers Compensation Commission's award of benefits, on the grounds that there was insufficient evidence that Ragland, the employer, had three or more employees "regularly in service" at the time of the accident, and thus, the claimant was not entitled to benefits under Code sec. 65.2-101.
If an employer has fewer than three employees "regularly in service", it is not subject to the Act and has no obligation to provide its employees with workers' compensation benefits.
Ragland was the superintendent at an apartment building in Alexandria, Virginia. The owner paid him to clean and manage the property. On behalf of the owner, Ragland got bids from contractors to replace the building's windows, but then replaced about half the windows himself, with unpaid help from the owner and his sons. At that point, Ragland brought in a contractor to work on the window replacement project. The contractor brought two of his brothers, one of which was the claimant. On their second day of work, the claimant was injured while operating a table saw, and never returned. A few days later, the contractor stopped working for Ragland. Ragland did not replace the three brothers, however, the third brother later returned to help complete the window project.
The deputy commissioner awarded benefits to the claimant for his injury, finding that Ragland had three or more regular employees. The full commission affirmed, finding that Ragland was an employer who had three employees, as well as himself, performing work at the time of claimant's accident.
The Court of Appeals stated that the test is not whether Ragland was an employer who had three employees performing work "at the time of the accident", rather, the proper test was whether Ragland had three employees "regularly in service."
To determine whether an employee is "regularly in service", the Court examines the employer's "established mode of performing the work." The term "regularly" implies a practice, or a constant or periodic custom. Therefore, the Court looks for regularly recurring periods of employting the requisite number of persons over some reasonable period of time. In order for the employer to be subject to the Act, the recurring periods of employing the requisite number of employees should be the rule and not the exception.
In this case, for a window replacement project that took months to complete, Ragland had three workers for, at most, one and a half days. That did not constitute regularly-recurring periods. Ragland had never had three employees before the brothers worked for him for a day and a half, and did nto have three employees afterwards.
Thus, the Court held that Ragland did not have "three or more employees regularly in service" at the time the claimant was injured, and Ragland was not subject to the Virginia Act. The Court therefore reversed the Commission.
[Ed. Note: Inquiries about Virginia workers compensation defense issues or claims may be directed to John H. Carstens, Esq., in our Fairfax, Virginia office.]
Posted by David B. Stratton on 01/09/2012 at 06:26 PM
D.C. Workers Compensation: Court of Appeals rejects objective standard for mental disability claims
In Muhammad v. District of Columbia Depart. Of Emp. Serv., No. 10-AA-1049 (D.C. Jan. 5, 2012), the claimant had suffered a back injury on the job and was on temporary total disability. After three years, the employer enrolled the claimant in vocational rehabilitation, in an effort to find him sedentary work. After a year of unsuccessful vocational counseling, rehabilitation efforts were terminated. Subsequently, the claimant's treating physician recommended that the claimant begin seeing a psychiatrist, and the psychiatrist diagnosed the claimant with severe depression. The employer then arranged for a psychiatric IME, which diagnosed the claimant with a depressive disorder caused by the claimant's limited coping response to the challenges imposed by vocational rehabilitation.
The claimant then petitioned for permanent total disability benefits. The ALJ denied the claim, concluding that claimant's psychiatric injury was not medically causally related to the workplace injury to the claimant's back. The Compensation Review Board ultimately affirmed.
On appeal, the Court reversed and remanded the Compensation Review Board's denial of benefits on the grounds that the claimant's psychological injury did not arise out of and in the course of employment. The Court directed that on remand, the Board must resolve the question whether a claim flowing from vocational rehabilitation might be covered as involving what Professor Larson refers to as a 'quasi-course of employment' injury. Quasi-course of employment activities are activities undertaken by the employee following upon his or her injury which, although they take place outside the time and space limits of employment, and would not be considered employment activities for usual purposes, are nevertheless related to the employment in the sense that they are necessary or reasonable activities that would not have been undertaken but for the compensable injury. This was recognized as an issue of first impression in the District in the case of Nixon v. District of Columbia Dept. of Emp. Serv., 954 A.2d 1016 (D.C. 2008), but the issue has never been reached by the Compensation Review Board.
The Court noted that the Board incorrectly directed the ALJ to determine if the psychological injury resulted from a strictly personal reaction by the claimant. The Court stated that contrary to the Board's assertion, employers must accept employees as they find them. The controlling standard is that the Workers' Compensation Act neither requires, nor permits, use of an objective test under which an employee seeking compensation for psychological injuries must show that an average person not predisposed to such injury would have suffered a similar injury.
Although the Court has rejected the use of an objective standard for evaluating an individual's reaction to workplace conditions, it did not eliminate the requirement that the workplace conditions that a petitioner asserts caused the injury must exist in reality. In mental-mental cases a test for the existence of actual workplace stressors must be one verifying the factual reality of the stressors in the workplace environment, rather than one requiring the claimant to prove that a hypothetical average or healthy person would have suffered a similar psychological injury.
Posted by David B. Stratton on 01/09/2012 at 02:43 PM
District of Columbia
Maryland Act construed to include loss of overtime pay in loss of “wage earning capacity”
In Montgomery County v. Deibler, ___ A.2d. ___ (Md. Oct. 27, 2011), the Maryland Court of Appeals considered the issue whether the term "wage earning capacity" in L.E. sec. 9-615(a)(1) includes the capacity to earn overtime compensation so that the Commission may include such compensation in the determination of whether an employee's wage earning capacity is "less" while temporarily, partially disabled. After a thorough exercise of legislative interpretation, the Court held that overtime pay is included in "wage earning capacity."
Captain Deibler was a firefighter employed by Montgomery County. Due to work-related knee injuries, he was placed on light duty with some reduction of regular hours. However, the County increased his hourly wage and maintained all of his cost of living adjustments and benefits, so that he earned the same amount of base pay as before his injuries. However, Captain Deibler lost the ability to work 11-15 hours per week of overtime. The inability to work overtime cost him over $700 per week.
After a hearing, the Commission ordered that Captain Deibler receive temporary partial disability for the periods when he worked light duty after his injuries. The County petitioned for review by the Circuit Court for Montgomery County, which affirmed. The County then appealed to the Court of Special Appeals, however, the Court of Appeals issued a writ of certiorari before argument.
On appeal, the County argued that the ability to earn overtime is separate from the ability to work. The County argued that overtime is the product of the employer's need, not a reflection of the employee's ability to perform the tasks of a job. The County concluded that Captain Deibler's ability to work did not decrease when his overtime compensation decreased; instead, his ability to perform work to earn his pre-disability base pay remained constant.
The Court disagreed, reasoning that the statutory phrase "wage earning capacity" is concerned with whether a disabled employee has lost any part of the employee's pre-disability to earn a wage. The Court concluded that overtime pay is included in the definition of "wage."
The Court pointed out that this should not result in a windfall for the employee, since the statutory calculation of average weekly wage takes into account the time worked over the 14 weeks prior to injury.
Accordingly, the Court held that "wage", as that term is used in the phrase "wage earning capacity in L.E. sec. 9-615(a), includes compensation paid for overtime hours worked prior to temporary partial disability.
This decision is significant since police and professional firefighters in Montgomery County, and probably throughout Maryland, typically earn substantial amounts of overtime pay, as has been discussed in the local papers. However, this decision will be very significant for any other category of workers whose earnings include substantial overtime pay, such as for example nurses.
Posted by David B. Stratton on 10/31/2011 at 03:54 PM
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