Increase in Benefit Amount for First Tier Permanency effective January 1, 2009

Significant Case Summaries - 2008

Maldonado v. Am. Airlines
2008 Md. LEXIS 448 (Md. July 25, 2008)

At the Commission, Claimant sought and received an award of permanency benefits of 50% to the whole person (serious disability) due to injuries to the low back and psychiatric. The Employer appealed. The jury at the circuit court level reduced the award to 35% to the whole person. Claimant appealed, and argued to the Court of Special Appeals, and later at the Court of Appeals, that any party that disputes a Commission decision on an “other cases” industrial loss must present the testimony of a vocational expert at the time of the appeal proceeding in order to rebut the presumption of correctness of the Commission award. Both the Court of Special Appeals and the Court of Appeals disagreed, holding that the testimony of a vocational counselor is not required to rebut the presumption as long as there is sufficient evidence for the jury to make a finding on industrial loss of use. 

Youngblud v. Fallston Supply Co., Inc.

2008 Md. App. Lexis 74 (Md. Ct. Spec. App. June 30, 2008)
 

Claimant, an insulin dependent diabetic, was injured when he fell down the stairs after feeling lightheaded. When the paramedics arrived, they tested Claimant’s blood sugar, which was very low. The claim was contested by the Employer. The Commission found it compensable, and the Employer appealed. The Circuit Court reversed, and Claimant appealed. On appeal, the Court of Special Appeals agreed that the injury did not arise out of the employment as it was due to a risk or condition personal to the employee.

Giant Food v. Eddy
947 A.2d 161
2008 Md. App. LEXIS 50 (Md. Ct. Spec. App. 2008)

The Employer/Insurer paid compensation through February 2, 1993. On January 9, 1998, the Claimant filed a request for reopening due to a worsening of condition. On February 16, 1999, Claimant’s counsel sent a letter to the Maryland Workers' Compensation Commission, advising it that he was withdrawing the issues previously filed because they had been resolved. The Commission continued the case "CROR" (reset on request). Pursuant to the resolution between the parties, compensation was paid through September 13, 1998. On July 14, 2006, Claimant filed issues seeking temporary total disability. The Commission denied the employee's request on the ground that it was barred by limitations. The circuit court reversed. On appeal, the Court of Special Appeals reversed the circuit court, holding that the Commission's "CROR" notation continuing the hearing did not toll the limitations period. 

Any questions regarding this case can be directed to Jamie DeSisto at (410) 752-0075 or jdesisto@tthlaw.com

Yingling v. Millennium Inorganic Chemicals
2008 Md. App. LEXIS 63 (Md. Ct. Spec. App. May 29, 2008)

Claimant was paid temporary total disability benefits through April 13, 1998. Claimant sought surgery several years later. The Employer/Insurer scheduled an IME to address causal relationship and reasonableness and necessity of the surgery. Claimant refused to attend unless he was paid his full wages on the day of the IME. The Employer paid Claimant wages on the IME date. Claimant filed issues for reopening seeking authorization for surgery and temporary total disability benefits. The Employer/Insurer argued that the claimed benefits were barred by limitations because the issues for reopening were filed more than five years past April 13, 1998, the last date that temporary total disability was paid. The Claimant argued that the wages he received from the Employer on the date of the IME was “wage reimbursement” as set forth in LE §9-667, and constituted a payment of compensation, such that his claim for temporary total disability was not time barred.

The Commission and the Circuit Court disagreed, and found that the claim for temporary total disability was barred by limitations. The Court of Special Appeals affirmed, holding that the payment of wages on the IME date did not constitute a “wage reimbursement” as set forth in LE §9-667.

Any questions regarding this case can be directed to Jamie DeSisto at (410) 752-0075 or jdesisto@tthlaw.com

Dove v Montgomery County Board of Education
943 A.2d 662
(Md. Ct. Spec. App. (2008)

When a claimant files a request for modification of an award of compensation, the claimant does not have to produce all necessary medical documentation at the time of the filing of the request, but must produce such documentation at the time of the hearing before the Commission and it must show that a change in disability occurred during the period covered by the applicable statute of limitations.

Any questions regarding this case can be directed to Jamie DeSisto at (410) 752-0075 or jdesisto@tthlaw.com

Andrew A. Smigelski d/b/a Columbia Roofing & Home Improvement
v. Potomac Insurance Company of Illinois
403 Md. 55, 939 A.2d 189 (2008)

Where an insurance policy excludes coverage outside Virginia for activities for which the employer would require separate coverage, and the injured employee is a regular employee of a statutory employer, the injury is not covered. Furthermore, where the law of another state precludes workers’ compensation coverage in that state as a result of the injured worker’s status as an illegal alien, our analysis in Kacur v. Employers Mut. Cas. Co. does not extend coverage to a claim filed in Maryland.

Any questions regarding this case can be directed to Jamie DeSisto at (410) 752-0075 or jdesisto@tthlaw.com

Stachowski v. Sysco Food Services of Baltimore, Inc., et al.
402 Md. 506, 937 A.2d 195 (2007)

The term "last compensation payment" is based on the date when the last payment by check was received by the claimant, either directly or by the claimant’s attorney or the claimant’s authorized agent.

Any questions regarding this case can be directed to Jamie DeSisto at (410) 752-0075 or jdesisto@tthlaw.com

Montgomery Mutual Ins. Co. v. Chesson
399 Md. 314, 923 A.2d 939 (2007)

The admissibility of expert testimony and specifically, whether the doctor's methodologies for diagnosis and his theories regarding the connection between mold exposure and certain human health effects are generally accepted in the scientific community, must be subjected to a Frye-Reed hearing pursuant to the holding in Reed v. State, 283 Md. 374, 391 A.2d 364 (1978).

Any questions regarding this case can be directed to Jamie DeSisto at (410) 752-0075 or jdesisto@tthlaw.com.

Del Marr v. Montgomery County
397 Md. 308, 916 A.2d 1002 (2007)

Where claimant receives an award of compensation for permanency, and later returns for worsening of condition, claimant's new award is subject to a credit for the number of weeks paid under a prior order, rather than on the basis of dollars paid.

Any questions regarding this case can be directed to Jamie DeSisto at (410) 752-0075 or jdesisto@tthlaw.com