THE WORKERS COMPENSATION NEWSLETTER MARYLAND WORKERS COMPENSATION COMMISSION NEWS

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1 FIRST REPORT THE WORKERS COMPENSATION NEWSLETTER OF FRANKLIN & PROKOPIK Editor: Barbara Thompson Spring 2015 Franklin & Prokopik UPCOMING EVENTS MARYLAND WORKERS COMPENSATION COMMISSION NEWS May 14, 2015 District of Columbia Workers Compensation Breakfast-N-Learn Linthicum, MD May 20, 2015 Business Law Seminar Turf Valley, MD November 3, 2015 Labor & Employment Seminar Turf Valley, MD See website for more details on all of our events. Inside this issue: Delaware Developments 2 News from the District of Columbia 2 Making News in Maryland 3 View from Virginia 4 F&P News 6 F&P Attorney Directory 7 WELCOMING COMMISSIONER KATHLEEN A. EVANS Governor Hogan recently appointed Kathleen Evans to the Maryland Workers Compensation Commission. Commissioner Evans attended the University of Maryland for her undergraduate degree and graduated from The University of Baltimore Law School in Among other organizations, Commissioner Evans is a member of the Maryland State s Attorneys Association, Women s Bar Association and the American Bar Association. Before she joined the Commission, Evans was a prosecutor for the Office of the State s Attorney for Anne Arundel County from 2007 through For a time, Evans focused on crime in Annapolis as part of the Capital City Safe Streets initiative, in which she, and other prosecutors, worked with police and probation officers to develop a closer relationship with the police and community to fight crime. Evans efforts also covered public housing communities riddled by violence and drugs. Some of Commissioner Evans achievements include high-profile convictions. For instance, in May 2013, Commissioner Evans assisted in a murder case in which an Arundel County jury found Clarence Johnson, III guilty of first-degree murder, attempted firstdegree murder, first-degree assault, attempted robbery and multiple weapons offenses in a December 2012 fatal shooting. The jury sentenced Johnson to life in prison without the possibility of parole. In 2012, Commissioner Evans prosecuted a case in which a Pasadena teenager, Vincent Bunner, eventually pleaded guilty to two fatal 2010 shootings in a failed robbery. Aside from her time in Anne Arundel County, Commissioner Evans also worked in Prince George s County and took some time away from work help raise her five children before returning to the State s Attorney s Office as part of the Safe Streets program. She lives with her husband, Gerard Evans, a Washington lobbyist. For more information about this article, contact John Archibald at jarchibald@fandpnet.com or (410) Quality Representation, Personal Service Phone: The B & O Building, Two North Charles Street, Suite 600, Baltimore, MD Facsimile: Easton MD Hagerstown MD Herndon VA Martinsburg WV Tampa FL Wilmington DE

2 SPRING 2015 Page 2 DELAWARE DEVELOPMENTS GLORIA EDWARDS V. DELAWARE, NO (DEL. I.A.B. NOV., 14, 2014) The claimant, Gloria Edwards ( Claimant ), sought compensability of surgeries to the lumbar spine performed in 2013 related to a February 7, 2000 work accident. Claimant had undergone prior lumbar spine surgeries; a lumbar fusion at L4-L5 and L5-S1 in 2005 and removal of the hardware in Claimant had a repeat fusion at these levels in 2009 and removal of the hardware in Claimant had improved and was released from the care of her surgeon in 2011, but approximately two years later, she returned to her doctor with worsening and new pain. The surgeon advised Claimant that the two discs above the fusion had gone bad due to pressure from the fusion. Claimant underwent surgery at the L2-L3 level in May 2013 and again in December 2013 because of rapid disc deterioration. Claimant s surgeon testified that because the low levels of the spine were fused, the higher levels had absorbed all the stress of that portion of the spine. The carrier s medical expert disagreed and testified that the L2-L3 level was not injured in the work accident and had not deteriorated because of the fusions at L4-L5 and L5-S1 as the surgery at L2-L3 skipped a level above the fused levels. The carrier s expert agreed that the level adjacent to a fusion can deteriorate but was unaware of any medical literature that supports deterioration of a disc two levels away from the fusion. The Industrial Accident Board held that the surgeries performed in 2013 were not causally related to the work accident. The Board was not persuaded by Claimant s expert that adjacent segment degeneration resulting from a spinal fusion can skip a level and affect the level above the adjacent level. For more information about this article, contact Robert Hunt at rhunt@fandpnet.com or (302) NEWS FROM THE DISTRICT OF COLUMBIA PLACIDO V. COMPASS GROUP USA, INC., ET AL. In the case of Placido v. District of Columbia Department of Employment Services and Compass Group USA, Inc., 92 A.3d 323 (D.C. 2014), the District of Columbia Court of Appeals reviewed a decision of the Compensation Review Board that upheld the decision of an Administrative Law Judge (ALJ), denying a claimant s request for arthroscopic surgery to her left shoulder, in connection with work-related injuries to her left shoulder and back. The ALJ found that the surgery was not medically reasonable or necessary, which was affirmed by the Compensation Review Board. The District of Columbia Court of Appeals affirmed the decisions below. The claimant in this case injured her left shoulder and back in August of 2010, while working as a food preparer for Compass Group USA, Inc. The claimant underwent conservative treatment, which included injections, physical therapy, and a home exercise program. Despite undergoing treatment and working in a light duty capacity, the claimant continued to complain of pain symptoms. She underwent an MRI of her left shoulder. Her treating physician, Dr. Joel D. Fechter, stated that she could live with the symptoms, manage them symptomatically as best she can,

3 spring 2015 Page 3 or undergo arthroscopic evaluation and treatment of the left shoulder. The claimant subsequently sought authorization for surgery, which was denied by her employer and its insurer. The claim proceeded to an evidentiary hearing. Compass Group relied on independent medical evaluations (IMEs) conducted by Dr. Robert O. Gordon, and on a Utilization Review report by Dr. Reese Polesky, in which the doctors opined that the arthroscopic surgery was not reasonable or necessary. The claimant argued on appeal that an ALJ may not weigh the opinions of an IME doctor in determining the reasonableness and necessity of medical treatment, since the only proper support for a defense of lack of reasonableness or necessity was a Utilization Review report. She additionally argued that that the ALJ acted inconsistently by accepting Dr. Fechter s opinion on medical causation, but not on the necessity and reasonableness of the surgery. The District of Columbia Court of Appeals held that the ALJ could in fact consider extrinsic evidence to the Utilization Review report when determining the reasonableness and necessity of medical services requested by the claimant. The ALJ was free to accept portions of testimony of claimant s treating physician, while rejecting other portions, including inferring that treatment was not necessary since the Claimant could live with the symptoms. The ALJ was also free to use the IME physician s opinion in support of a decision on reasonableness and necessity of treatment, although the primary evidence is required by statute to be a Utilization Review report. This decision of the District of Columbia Court of Appeals reaffirms the fact that ALJs are free to decide which parts of a treating physician s testimony to accept, and which to reject. It also cements the fact that ALJs may consider extrinsic evidence in determining the reasonableness and necessity of medical services requested by workers compensation claimants and do not have to rely solely on the Utilization Review process. For more information about this article, contact Lauren Cramer at lcramer@fandpnet.com or (410) NEWS FROM MARYLAND SIF ASSESSMENT ON PERMANENCY AWARD IS BASED ON THE TOTAL AMOUNT OF A PERMANENT DISABILITY AWARD The Maryland Workers Compensation Act (WC Act), under L.E (a), imposes a 6.5% assessment payable to the Subsequent Injury Fund (SIF) by Employer/Insurers on each award of permanent disability or death and settlements. In light of the various offsets allowed under the WC Act (for retirement benefits), an issue frequently arose as to whether the 6.5% assessment was based on the total amount of the Commission s award or the actual amount the Employer/Insurer was required to pay after consideration of the offset. The Court of Special Appeals held in the consolidated appeal (Injured Workers Insurance Fund v. Subsequent Injury Fund and Baltimore County v. Subsequent Injury Fund April 03, A.3d WL ), that the 6.5% SIF Assessment allowed for under L.E (a) is based on the total amount of the permanent disability award before the offset is applied. We understand the Employer/Insurers may petition the Court of Appeals for Certiorari and will provide an update in our summer edition of The First Report. For more information about this article, contact Barbara Thompson at bthompson@fandpnet.com or (410)

4 spring 2015 Page 4 THE VIEW FROM VIRGINIA VIRGINIA S WILLFUL MISCONDUCT DEFENSE Pursuant to Va. Code (A), compensation benefits will be denied where the accident or death was caused by the employee's willful breach of any reasonable rule or regulation adopted by the employer and brought, prior to the accident, to the knowledge of the employee. According to Va. Code (B), the party raising a safety violation defense has the burden of proof. In the case of Spruill v. C.W. Wright Construction Co., 8 Va. App. 330, 334, 381 S.E.2d 359, (1989), the court determined that the employer must prove the following elements to prevail on the defense of a willful violation of a safety rule: 1) the safety rule was reasonable; 2) the rule was known to the employee; 3) the rule was promulgated for the benefit of the employee; and 4) the employee intentionally undertook the forbidden act. The Court of Appeals recently addressed this issue in the case of Layne v. Crist Electrical Contractor Inc. 64 Va. App. 342, , S.E.2d (February 10, 2015). In this case, the claimant was working for a subcontractor performing electrical work in a large warehouse. The claimant was hired as an electrician s helper. On the day of the accident, the claimant was installing electrical conduit from a scissor lift elevated high in the general contractor s cutting room. As he was installing the conduit, a bridge crane became operational and hit the scissor lift and claimant, causing claimant to fall to the floor. The claimant sustained numerous and severe injuries. The employer and insurer denied the claim arguing the claimant violated the employer s lockouttagout rule. The employer s foreman testified that the bridge crane operated through rails embedded in the walls of the cutting room. When the bridge crane s rails were electrified, the bridge crane became mobile. The employer s vice president testified that prior to installing conduit near the bridge crane, the bridge crane and the rails needed to be rendered inoperable through a procedure known as lockouttagout. Despite evidence that the claimant was never given any written materials addressing the lockout-tagout procedure and did not attend any formal safety orientation, the employer s foreman testified he thoroughly explained the procedure during a tour of the facility and the importance of locking the bridge crane before working near its rails. Witnesses also testified the claimant knew of the procedure based on their interactions with the claimant and observations of the claimant performing lockouttagout on prior occasions. The employer s witnesses offered testimony the claimant unlocked the bridge crane box on the morning of the accident, but failed to follow the lockout-tagout procedure once he returned to installing conduit in the cutting room a few hours later. The Deputy Commissioner and Full Commission denied Mr. Layne s claim, finding he violated the lockout-tagout procedure. This Court found that the hearing record supported the Commission s finding that the employer verbally communicated the lockout-tagout rule to the claimant and the lockout-tagout rule applied to the work the claimant was performing at the time of the accident. The Court arrived at this conclusion, relying on case law, which held an employer may rely on the existence of a workplace safety rule that has been explained to an employee either verbally or in writing. (See e.g. Peanut City Iron & Metal Co. v. Jenkins, 207 Va. 399, 400, 150

5 spring 2015 Page 5 S.E.2d 120, 121( 1966) and Phipps v. Rann Industries, Inc., 16 Va. App. 394, 396, 429 S.E.2d 886, 887 (1993). On appeal, the claimant argued the employer had to prove, by a preponderance of the evidence, the employee actually intended to violate the employer s safety rule. The Court explained that binding case law interpreting Va. Code explained that willful means with deliberate intent. Riverside & Dan River Cotton Mills, Inc. v. Thaxton, 161 Va. at 872, 172 S.E. at 264 (1934). The Supreme Court in that case held that If the employee knows the rule, and yet intentionally does the forbidden thing, he has willfully failed to obey the rule. It is not necessary for the employer to show that the employee, having the rule in mind, determined to break it; it is enough to show that knowing the rule, he intentionally performed the forbidden act. Riverside & Dan River Cotton Mills, Inc. v. Thaxton, 161 Va. at 872, 172 S.E. at 264 (1934). The Court of Appeals in Layne found the Commission could infer from the hearing testimony that the claimant intentionally performed the forbidden act under the lockout-tagout rule. The Court of Appeals found the following: Indeed, while the lockout-tagout rule as described by the testimony below was a multistep process, it had two essential and simple components: (1) to seek and receive permission from the Delta Star bridge crane operator to perform work in the area of the bridge crane; and (2) to render the bridge crane inoperable by engaging the lock in the disconnect box. The evidence proved that claimant had satisfied both of these essential components of the lockout-tagout rule on prior occasions including a mere three hours before the workplace accident that occurred that same morning on January 19, However, the evidence established that the claimant had not satisfied either of these essential components as he was working the path of the bridge crane at the time of the workplace accident later that morning. Claimant not only failed to lock out the bridge crane - but he also did not even tell the Delta Star bridge crane operator that he needed to work near the bridge crane or ask for permission to lock out the bridge crane before he got in the scissor lift and ascended in it to do the work he was doing near the bridge crane when he was injured. The Court continued to explain that a majority of the full commission here found claimant intentionally committed conduct that was forbidden under the lockout-tagout rule that had been communicated to him on a number of occasions and that, therefore, claimant s conduct was willful for purposes of Va. Code (a)(5) and not simply negligent. Id. To use the willful misconduct defense, employers must 1) thoroughly explain the safety rules to employees through written materials or verbally; 2) address the need to follow the safety rule; 3) show employees where certain equipment, materials or facilities are located for carrying out the designed safety rule; 4) explain the safety rule or procedure to employees step by step (if applicable); 5) reiterate the danger involved in not performing the safety rule; and 6) confirm that employees understand the safety rule. While some accidents are inevitable even if employers follow these steps, we are hopeful that should a workers compensation claim be filed, there is sufficient evidence to prevail if the claim is defended on the ground that a safety rule was violated. For more information about this article, contact Brandi Howell at bhowell@fandpnet.com or (571)

6 spring 2015 Page 6 WHERE WE VE BEEN... WHERE WE RE GOING... Colin Bell spoke at the Conference of Freight Counsel winter meeting in Fort Myers, FL January 10-12, Stephen Marshall attended the DRI Products Liability Conference February 4-6, 2015 in Las Vegas, NV. Colin Bell attended the Transportation & Logistics Council Annual Conference in Orlando, FL March 22 25, Maija Jackson gave a Workers Compensation Presentation at Baldwin & Lyons in Indianapolis, IN on March 27, Andrew Stephenson gave a Liability Presentation at Baldwin & Lyons in Indianapolis, IN on March 27, Bert Randall spoke at the USLAW Client Conference - All Tokes Aside: Medical Marijuana on the Rise. in San Antonio, TX, April 9 10, Bert Randall will be presenting Take the High Road, Medical Marijuana is Here. Are You Ready? at the SHA Workers Comp. Executive Forum New Orleans, LA, May 12 14, Colin Bell will be attending the Transportation Lawyers Association annual conference in Phoenix, AZ May 12 15, Bert Randall will be presenting Managing and Defending the Latest Off-the-Clock Claims Involving the Use of Smartphones and Mobile Devices at the ACI s 24th Wage & Hour Conference, New York City, Times Square, NY, May 28 29, This year s MWCEA Conference October 4-7, 2015 Clarion Resort Ocean City, Maryland For more information visit or call (240) Speakers Available! We can provide presentations tailored to your specific needs and can satisfy your annual training requirement. Contact Joan Hartman, our Director of Events and Communications, at or jhartman@fandpnet.com to make arrangements.

7 spring 2015 Page 7 Attorney Direct Dial Adkins, Jr., Neal G Fenner, Natalie S.* McAfee, John P Stone, Sally A Akpan, Idara E Fitzpatrick, Lynn M McChrystal, Lynne K Story, David M Akpan, Imoh E.* Fowler, Bradley F McGough, Timothy P.* Thompson, Barbara* Archibald, John K Gannett, Matthew J McKenzie, Laura S.* Troese, Antonio S Arnsdorf, Ralph L.* Goorevitz, Tamara B.* Miller, Kara M Walburn, Ryan M Ayd, Jessica J.* Handscomb, John J.* Neighbors, Helen D Ward, Cheryl A. Banach, Jennifer L Helsel, Jennifer Ramey Patel, Nirav Zenkewicz, Kristine R Bell, Colin Hoffman, Joshua M.* Prokopik, Michael W Berdichevsky, Jessica J Howell, Brandi R Rahi, Simran *Admitted to D.C. Bar Bohrer, Carrie V Hunt, Jr., Robert S. Randall, Jr., Albert B Chiarizia, Emily M Jackson, Maija B Rhodes, Kimberly P Colvin, Shannon O Kennedy, Gregory E Rosen, Kiran Sharma* Corso, Scarlett M King, Brittany L Royer, Lauren M.* Cramer, A. Lauren Kozlowski, Angela G.* Schantz, Melissa A Crawford, William A Lemmert, Sarah S Segletes, III, Theodore J. Dannenberg, Rebecca L.* Lentz, Michael J Shevlin, Krista E. Dwyer, Ami C Marshall, Stephen J Skomba, David A Erwin, Zachary L.* Mayfield, Alex M Stephenson, Andrew T FirstInitialLastName@fandpnet.com

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