With multiple reported opinions addressing the offset statute in the last calendar year, the Maryland appellate courts have been busy addressing the offset provision codified in Section 9-610 of the Labor and Employment Article.  The purpose of the statute is to prevent public sectors employees from receiving more than one benefit from the same injury.  This statute again took center stage before the Court of Special Appeals in Rodney Crawley v. Board of Education for Prince George’s County, Maryland, et. al, with attorney Michael Bennett, who was joined in the brief by attorney David Skomba, arguing on behalf of the Board of Education.  Mr. Crawley elected to retire shortly after sustaining an on-the-job injury with the Board. He filed a claim with the Workers’ Compensation Commission, and also began receiving weekly retirement benefits based upon his age and length of service.  In Maryland, there is no offset for service-based retirements.  Perhaps observing there was a higher payout associated with other retirement benefits tied to his work-related accident, Mr. Crawley then voluntarily converted his retirement benefit to the higher paying accident disability benefit, which compensated him at a significantly higher weekly rate.

While Mr. Crawley did not dispute that an offset was appropriate under 9-610, he urged the court that the offset should be limited to the difference in his accidental disability retirement benefit and his prior benefit based upon his age and length of service.  Under Mr. Crawley’s theory, he would have been entitled to a portion of his permanent partial disability benefit through workers’ compensation, as well as the full amount of his accidental disability retirement benefit.  The Court of Special Appeals rejected Mr. Crawley’s argument that merely a portion of his accidental disability retirement benefit is available for an offset.  Instead, the intermediate court agreed with the Board’s position that the entire amount of Mr. Crawley’s accidental disability retirement benefit is analyzed under §9-610, which effectively fully offsets his workers’ compensation benefit.  To adopt Mr. Crawley’s theory, the Court of Special Appeals noted, would violate the plain language of the statute and its clear statutory intent.

The Court of Appeals decision affirmed the decision of the Circuit Court for Prince George’s County, which affirmed the original decision from the Workers’ Compensation Commission.  While the decision in Crawley is unreported, the recent reported opinions from the appellate courts have been defense friendly.  Thus, §9-610 remains a vital exposure mitigation instrument available for employers and insurers who cover public sector employees.

 

 

On Thursday, June 7, F&P attorney Justin Tepe will speak on Maryland’s New Paid Leave Law at CCBC in Hunt Valley, MD.  The program will take place from 8:00-10:00am and will be complimentary for Hunt Valley Business Forum members and first time HVBF event attendees.

The Maryland Healthy Working Families Act that went into effect last February has been one of the most relevant Labor & Employment topics of 2018.  Attendees will learn the general framework and requirements of the act and how it affects employers.  Please visit https://www.hvbf.org/event-2923814 to register.

 

After a six day trial and ten hour jury deliberation, F&P attorneys Imoh Akpan and Renee Bowen helped secure a  defense verdict  in last month’s trial in the case of  Gardner v. Demby.  The case was a complex motor accident  and was tried  before  U.S. District Court, Judge Catherine C. Blake.

The facts of the accident are as follows: on a clear afternoon in April of 2013, 82 year old plaintiff Robert John Glad was driving his vehicle on Route 301 in Maryland.  Plaintiff John Borycens, a male in his 60s, was a passenger.  At the same time, a dump truck, operated by defendant Markeith Doron Demby and owned by Thomas H. Pauls, LLC, was driving in the same direction.  Glad alleged that Demby failed to maintain his lane of travel and struck his vehicle, which was traveling at highway speed of 62 mph. Demby contended that he attempted to make “J” turn in a designed turn around, when plaintiff’s vehicle struck his and that Glad had fallen asleep at the wheel.

Plaintiff Glad was airlifted to a local trauma center for treatment of a fractured hip, neck and back injuries, and traumatic brain injury. Both Plaintiff Borycens and Defendant Demby suffered neck and back injuries.  Glad died of unrelated causes prior to trial.  There was no dispute over injuries suffered by the parties to this accident; the matter went to the jury on the issue of liability and extent of damages.

Plaintiffs filed suit against Demby for failure to maintain his lane of travel, failure to keep a proper lookout, failure to control his vehicle, and failure to avoid this accident. Plaintiffs named owners of the company, Thomas H. Pauls, Julia Pauls, Vernetta E. Sherman, Joan L. Wilmer and Joan Pauls Wilmer.  Plaintiff Borycens settled his claims against defendants for $50,000 prior to trial, and the case proceeded against Demby, Sherman and Thomas H. Pauls, LLC.  The other defendants were dismissed.

Defendants denied Demby was negligent contending that Glad fell asleep at the wheel and drove into his truck, which was attempting a legal “J” turn in a designated turn around. Demby counterclaimed for injuries he sustained in the accident.

Again, after nearly two days of deliberations the jury returned a defense verdict for Demby, Sherman and Thomas H. Pauls, LLC, on the plaintiff’s negligence claim. The jury also returned a defense verdict for Glad on Demby’s counterclaim for damages. No damages were awarded to either party.

On Thursday, April 26, Franklin & Prokopik (F&P) principal Tamara Goorevitz co-presented the second Robert T. Franklin Award to Stephen Winborn of  National Interstate Insurance Company at the  DRI Trucking Conference in Chicago, Il.  The Award is named in honor of Bob Franklin, co-founder of F&P and founder of the DRI Trucking Law Committee, who passed away in November of 2013.  The nominations are judged based on commitment to the trucking industry, education of the industry, and loyalty to the industry, aiming to select an individual who is a true champion of the trucking industry, as was Bob.

The 2018 recipient, Stephen Winborn, is the Senior Vice President of Claims and Risk Management for National Interstate, a nationwide premier provider of traditional insurance and innovative alternative risk transfer products.  Steve has been involved in the defense and operation of insurers and transportation companies for over 25 years, and has assumed roles of increasing responsibility throughout his career.

The first Robert T. Franklin Award was received by Judy Burckhalter of Old Dominion Freight Line in 2016 and will be given by DRI’s Trucking Law Committee at their biannual seminars, which will next occur in 2020.

On April 3, 2018, Franklin & Prokopik attorney Alex Mayfield from the firm’s Herndon, Va. office secured a decision in favor of the Appellee in the case of Debra Levy v. Wegmans Food Markets, Inc.  The case, an appeal from a previously denied workers’ compensation claim, was argued in front of the Court of Appeals of Virginia in Fredericksburg, Va.

Levy, an employee of Wegmans, damaged her knee, which had pre-existing arthritis, in a June 2011 incident where she slipped and fell in the back of the store’s walk-in freezer. This injury required surgery and Levy filed a number of claims related to this injury over a prolonged period of time.  The claim at issue was filed in April 2015, seeking approval of arthroscopic knee surgery, proposed by Levy’s doctor and protective disability claims continuing from January 2015.  In a September 2015 review opinion the full Commission found no indication in her doctor’s records that the claimant’s compensable injury was playing a role in any disability which [Levy] may have had.  Subsequent to this decision, Levy filed a series of new claims predicated on the very same surgical opinion addressed in the full Commission’s September, 2015 decision.  Claimant argued that her new claims were not barred by res judicata because she presented a new theory founded in a compensable consequence claim rather than a direct causal link.

While the claimant styled her filings as “new” claims, a deputy commissioner in May 2016 held that despite how those claims were pleaded, they were indeed barred by res judicata, and the full Commission went on to affirm the ruling.

Levy subsequently appealed the Commission’s decision to the Court of Appeals the following October, bringing forth various arguments as to why her injuries should be fairly categorized as “new”.  The Virginia Court of Appeals rejected her arguments, holding that the right of a party to allege alternative theories was not an invitation to create “new” evidence and “take another swing,” at proving her case.   The Opinion went on to state that Levy had the opportunity to offer evidence of causation for the contemplated surgery at the first hearing, and she chose not to. To reward her with another opportunity to do so would incentivize piecemeal litigation, undermine the finality of judgments, and multiply the number of proceedings – the very evils the doctrine of res judicata was developed to address. Consequently, the Commission’s judgment was affirmed.  This is the first time the Court of Appeals has address res judicata in the workers’ compensation context in several years.