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COURT OF SPECIAL APPEALS UPHOLDS STATUTE OF LIMITATIONS

Attorney for Defense:  Lynn Oh, Esq. of Humphreys, McLaughlin & McAleer, LLC

Issue: Does a "CROR" notation in the Commission file, after issues have been withdrawn, toll the statue of limitations?

Facts: Claimant filed a Request for Reopening within 5 years of the last payment of compensation. The Request for Reopening may have been regarding an alleged increase in PPD. Regardless, prior to the hearing on the Request for Reopening, the parties resolved the matter. The resolution included authorization for medical treatment and an additional period of TTD. The Claimant’s attorney filed a letter with the Commission withdrawing the issues previously filed and stated that the issues have been resolved prior to the hearing. The letter also requested that the hearing be cancelled. The Commission noted "CROR" on the letter.

Almost 8 years after the date of the last TTD payment pursuant to the above agreement, the Claimant filed a Request for Emergency Hearing. He requested authorization for another surgery and another period of TTD. The Commission denied this request and set this matter for hearing in the normal course. However, a second Request for Emergency Hearing was filed a few days later. The second Request only asked for the surgery. The Commission granted the second Request and a hearing was scheduled. However, prior to the second hearing, the Employer and Insurer authorized the surgery, but denied additional TTD based on the 5-year statute.

A hearing was held before the Commission. The Commission denied the requested TTD based on LE 9-736. The Claimant appealed to the Circuit Court for Anne Arundel County. Motions for summary judgment were filed by both parties. After a hearing, the judge granted the Claimant’s motion for summary judgment based on the Request for Reopening filed more than 8 years ago. The judge noted that the "CROR" notation on the Claimant’s attorney’s letter tolled the statute of limitations. Thereafter, the Employer and Insurer noted an appeal with the Court of Special Appeals.

The Employer and Insurer’s position:

The Claimant’s position:

Holding: "CROR" notation continuing the hearing was tantamount to reserving jurisdiction after the issues had been resolved pursuant to the Claimant’s attorney’s letter withdrawing the issue, which the Commission cannot do beyond the 5 year statute of limitations.

Michael D. Stachowski v. SYSCO Food Service of Baltimore, Inc. (Court of Appeals, December 2007)

Issue: When does the 5-year statute of limitations begin to run?

Facts: Claimant received a PPD order dated 10/12/1998. The award was fully accrued and all checks (including those for attorney’s fees) were mailed to Claimant’s attorney by the carrier on 10/21/1998. They were received in the attorney’s office on 10/22/1998. Claimant’s check was forwarded to him on 10/26/1998 and bank records indicate that it cleared on 11/2/1998. No action was taken until Claimant filed for a modification of the award on 10/22/2003.

Holding: The Court of Appeals held that the 5-year statute begins on the day the "last payment by check was received by the claimant, either directly or by the claimant’s attorney or the claimant’s authorized agent". The Employer argues that since the Commissioner’s procedural regulations clearly state that "service by mail is complete upon mailing" the date of last compensation payment should be the date it is mailed, not received. The Court of Appeals noted that in commercial law, payment by check is made when the check is received by the payee ("the date the checks were offered to and accepted by the claimant"). The high Court rejected the "date of mailing" argument as there was no statutory or case law authority for that argument. The appellate Court also rejected an "agency deference" argument, noting that the statutory provisions regarding "payment of compensation" were unambiguous and susceptible of determination without regard to the Commission’s position on the issue.

Issue: What must a Claimant file with the Commission when requesting modification of a prior award (reopening) in order to comply with the 5-year statute?

Facts: Claimant received a PPD award, per stipulation, on 5/31/2000. The check for benefits was issued by the carrier on 6/6/2000 and received by Claimant’s attorney on 6/10/2000. Claimant continued to treat and received 2 injections on 8/29/2002 and 9/17/2002. On 6/3/2005 Claimant filed a request for modification alleging entitlement to TTD from 11/29/2001 to the present and continuing. A medical report dated 11/29/2001 was attached to the request.

Holding: Under a prior decision of the Court of Special Appeals, Buskirk v. C.J. Langenfelder & Son, Inc. (2001), Employers and Insurers have argued that a petition to reopen for worsening of condition must have a "basis in fact" at the time it was filed, meaning the evidence to support a worsening of condition must exist at the time the petition is filed. Otherwise, it would be merely a "protective petition" filed to buy the claimant additional time to produce evidence of a change in disability status. The Court of Special Appeals in the Dove case noted that in Buskirk the claimant’s petition merely alleged a general worsening of condition and resumption of medical treatment and asked that a hearing not be scheduled "the classic "protective petition"). However, where the petition is filed within the five years, and is accompanied by a specific request either for additional temporary total disability benefits within the 5 years or for a determination that the claimant’s permanent condition has worsened during the 5 years, no specific medical documentation to support these allegations need be appended to the petition, nor is it required that such documentary evidence even exist at the time the petition is filed. The phrase "basis in fact" was defined as "a reasonable basis for the claim at the time of filing". The appellate Court noted that "when the claimant obtains such medical proof is, in our view, irrelevant, expect in so far as any right of the employer/insurer to be provided with claimant’s medical documentation prior to the hearing before the Commission". In short, as long as the petition when filed (within the 5 years) alleged a worsening of condition and specifies either entitlement to additional temporary disability benefits within the 5 years or a worsening of the claimant’s permanent condition within the 5 years, then when the claimant assembles medical documentary proof to support these allegations is irrelevant and such medical documentary proof need not exist within the 5 year period in order for the claimant’s petition to be timely filed and legally effective.

Issues: Partial incapacitation to prove disablement due to an occupational disease; effect of an "Automatic Award" on the parties burden upon appeal.

Facts: Claimant, a police officer, alleged injuries to his hips and back from continually entering and exiting his patrol car wearing heavy equipment over his 27 year career. He alleged a date of disablement after his date of retirement, stating that he could no longer have performed his duties due to his injuries. There was no dispute, however, that he worked full duty up until the date of his retirement.

On the second issue, Claimant filed his claim and County missed the consideration date, thus an "automatic award" was issued by the Commission. The County appealed. Claimant argued that he had a presumption of correctness from the Commission based on their Order.

Holding: On the first issue, the Court drew a distinction between an employee having considerable difficulty performing certain functions of his or her job, or needing medication and treatment to allow them to perform certain functions of their job, and "partial incapacitation". "An employee is not incapacitated within the intent of the law if ... though injured, [he] still has the capacity, the ability to, and does continue to perform his regular work for which he was employed".

On the second issue, the Court of Special Appeals noted that an "automatic" award of compensability, without any hearing having been held by the Commission on contesting issues, is not entitled to the presumption of correctness on appeal. The Commission did not consider any conflicting evidence, but rather base the award on the statements made by Claimant in his claim form. Further, and equally important, the Court held that even though the appeal is taken by the Employer/Insurer the burden of proof and production on appeal belongs to the Claimant in such instances. The appellate Court further noted that the existence of the "automatic" award cannot be used to defeat an otherwise meritorious motion for summary judgment. Under most circumstances, the presumption of correctness which attaches to such a decision and award of the Commission on appeal is sufficient to prevent issuance of summary judgment for the appealing party.

This decision touches on a number of topics of interest, including casual employment, statutory employment, insurance police interpretation and multi-state insurance coverage. Mr. Smigelski owned a Virginia-based business for which he procured a policy of insurance which provided coverage for accidents occurring in the State of Virginia and specifically excluded coverage for accidents happening tin other states where Smigelski had, or would by that state’s law be obliged to have, workers’ compensation coverage. Smigelski subcontracted a roofing job in Maryland to an uninsured subcontractor whose nephew, an employee of the unemployed subcontractor, fell off the roof and was injured. The Court of Appeals held that Smigelski as a statutory employer was obligated to carry workers’ compensation insurance under Maryland’s law. The statue requires employers to "secure compensation for covered employees" which the high Court defined as including the employees of potentially uninsured subcontractors (perhaps without giving due consideration to the fact that coverage is only required for employees listed in subtitle 2 of Title 9, and employees of uninsured subcontractors are mentioned only in subtitle 6 thereof). Therefore, the Court of Appeals held that the Virginia insurer’s exclusions applied. There was an argument that young Mr. Garcia, the injured worker, was a "casual employee". However, the jury had been presented the question "Was Alejandro Garcia Regularly Employed in the State of Maryland?". As an individual "regularly employed" in Maryland he could not have been a "casual" employee, according to the opinion, although there was no explanation as to why this must have been so and why these two categories were deemed to be mutually exclusive. The opinion also addresses Mr. Garcia’s illegal alien status which, at the time, would have precluded him from entitlement to workers’ compensation benefits under Virginia law. The case of Kacur v. Employers Mutual Casualty Company, a Court of Appeals decision from 1969, was distinguished from this case. In that case, where the insurer had similar exclusion in place, the claimant could have filed his claim either in the state where he was injured or in the employer’s home state where the policy was applicable. The Court of Appeals reasoned then that the insurance policy should cover the claimant in Maryland because "an insurance carrier’s obligation to pay benefits should not be dependent upon the claimant’s choice of forum, where both states have proper jurisdiction". It would have had to cover the claimant in Kacur if he filed in the employer’s "home" state. Of course, in this case Mr. Garcia could not file in Virginia at that time under the existing law barring illegal aliens from workers’ compensation coverage.

This decision introduces the "Frye-Reed" procedure to the consideration of an expert’s medical opinion on causation in a workers’ compensation claim. The underlying claim was for "sick building syndrome", a disease alleged to be linked to exposure to mold or other indoor air pollutants in poorly-ventilated modern buildings. The employer and insurer requested that the trial court conduct a pretrial "Frye-Reed" hearing to determine whether the claimant’s expert witness should be allowed to provide his expert opinion testimony on the issue of causation. They argued that" his theories and methodologies for diagnosis regarding a causal connection between mold exposure and certain human health effects had not been generally accepted within the relevant scientific community" and therefore should be evaluated in a pretrial proceeding under the "Frye-Reed" standards. Those standards, applicable at the federal level as well as in Maryland State courts, are that "a party must establish first that any novel scientific method is reliable and accepted generally in the scientific community before the court will admit expert testimony based upon the application of the questioned scientific technique". In this case, the Court of Appeals noted that there is significant dispute in the scientific and legal communities regarding the theory that mold exposure causes human illness and thus required a " Frye-Reed" analysis be conducted. The trial judge had determined that the questionable scientific basis for the claimant’s expert witness’ opinions would"go to the weight, rather than the admissibility of his opinion". The Court of Appeals listed decisions in the states of Virginia, Texas, Nebraska, California and Florida wherein it was deemed proper to subject opinions on this issue to a pretrial determination of admissibility using this standard. It is interesting to note that amicus briefs were filed by "The Coalition for Litigation Justice, Inc.", "Maryland Defense Counsel, Inc.", " National Association of Home Builders" and "The National Multi Housing Council" in support of the Employer and Insurer, and by the "Maryland Trial Lawyers Association" in support of the Claimant.

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