Maryland Intermediate Appellate Court Examines Co-Employment
Uninsured Employers’ Fund v. Tyson Farms, Inc., 2019 WL 6223915 (2019), Maryland Court of Special Appeals, No. 1057, SEPT.TERM, 2018
In Uninsured Employers’ Fund v. Tyson Farms, Inc., the Court of Special Appeals of Maryland considered the issue of simultaneous employment of a chicken farm manager. Mauro Garcia, the claimant, managed a chicken farm owned by Dai Nguyen. Pursuant to a contract with Mr. Nguyen, Tyson Farms, Inc. raised its chickens on the farm. Mr. Garcia was found to be occupationally disabled from hypersensitivity pneumonitis and interstitial disease as a result of his employment.
The claimant initially filed his claim for workers’ compensation benefits against Mr. Nguyen as his sole employer. As Mr. Nguyen did not have workers’ compensation insurance, the Uninsured Employers’ Fund became involved and subsequently brought Tyson into the claim as a co-employer. At a hearing, the commission declared both Mr. Nguyen and Tyson to be co-employers. Tyson appealed the commission’s findings to the Circuit Court for Worcester County. The court determined the issue was one for a jury, rather than a court. The jury found that Tyson was not a co-employer at the time of Mr. Garcia’s occupational disease. The Uninsured Employers’ Fund appealed. Judge Wright, writing for the Court of Special Appeals, reversed the decision made by the Circuit Court.
Although the primary issue in the case was whether the Circuit Court should have let the question of employment go to the jury, the opinion provides a constructive overview of the factors that may be considered in determining a co-employer/employee relationship. The factors include:
The power to select and hire the employee;
The payment of wages;
The power to discharge the employee;
Whether the work is part of the regular business of the employer; and
The power to control the employee’s conduct.
Although the other factors were taken into consideration, the court found the “control” factor to be the most important in establishing whether Tyson was a co-employer of Mr. Garcia. In this case, Tyson could oversee all aspects of the farm including verifying operations in compliance with their contract, establishing instructions and requirements for raising the flocks, sending Tyson’s employees to check on each flock of chickens, and evaluating the welfare of the flock. Specifically, concerning the claimant, Tyson had the authority to compel Mr. Garcia to work on the farm 24 hours a day, seven days a week, and to speak directly with Mr. Garcia regarding adjustments of any kind. Tyson also had the right to terminate the contract if Mr. Garcia did not comply with the terms. Based on these circumstances, the Court found that Tyson’s power to control Mr. Garcia’s day to day operations was enough to establish the company as a co-employer and reversed the decision of the Circuit Court.
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As of January 6, 2020, the U.S. Department of Transportation (DOT) activated the Federal Motor Carrier Safety Administration (FMCSA) Drug and Alcohol Clearinghouse (Clearinghouse) through publishing a new rule codified at 49 U.S.C. 31306(a) with an eye toward the reduction of commercial motor vehicle crashes and fatalities. This web-based system (https://clearinghouse.fmcsa.dot.gov), will provide employers with information to identify drivers who have received DOT drug and alcohol violations. The Clearinghouse will also ensure that all DOT regulations are met before a driver is permitted to operate a commercial motor vehicle.
To access the Clearinghouse, employers will need to first register for an account. Accounts can be created by using the following link (https://clearinghouse.fmcsa.dot.gov/Register). The initial registration will be valid for five years unless terminated by the FMCSA. Annual reporting requirements became effective on January 6, 2020.
Once registered, employers can use the system to 1) verify a driver’s previous drug and alcohol violations; 2) update the status of new violations and 3) perform annual reviews of all employed drivers. In addition to registration with the Clearinghouse, employers, State Driver’s License Agencies, and the National Transportation Safety Board will be required to use the Clearinghouse to notify other agencies of a driver’s compliance with DOT requirements. Moreover, the National Transportation Safety Board and other enforcement personnel will be able to view a driver’s status remotely and will be required to report violations accordingly.
For employers, reporting is required if 1) the driver returns an alcohol test with a concentration of 0.04 or higher; 2) a driver refuses to take a alcohol or drug test; 3) an employer has actual knowledge of alcohol use within four hours of starting duty or prior to post-accident testing; 4) a negative return to duty test, and 5) completion of follow-up testing. In addition, employers are required to run a query through the Clearinghouse before hiring a prospective driver. Moreover, employers are required to run annual testing of each employed driver.
The Clearinghouse will collect the following information in the event of a drug and/or alcohol-related test: 1) the reason for the test; 2) the driver’s name date of birth and CDL number and state of issuance; 3) the employer’s name address in US DOT number; 4) the date of the test; 5) the date of the verified result; 6) the type of test; 7) reporting date; and 8) the result of the test. All information collected will be added to the database.
In sum, the Clearinghouse should expedite the verification and reporting requirements for employers with respect to prospective drivers and those currently employed. The Clearinghouse should also facilitate more accurate information gathering and verification. It is important to note that the creation of the Clearinghouse does not alter any other reporting requirements required by DOT or the FMSCA, and that all information contained in the database is subject to DOT retention procedures and must comply with FMSCA guidelines.
For more information about this article, please contact Adam Shareef at 410.230.3056 or firstname.lastname@example.org.
Bert Randall presented “High Times at Work – Medical Marijuana and the Workplace” at the Carroll County SHRM Conference in Westminster, MD on November 1, 2019.
Steve Marshall attended the DRI Professional Liability Seminar in New York, NY on December 4, 2019
Andrew Stephenson and Steve Marshall are presenting “How to Crack Plaintiff’s Medical Mills” on February 21 in London, England.
Steve Marshall will attend the Complex Torts/Products Mobile in Los Angeles, CA on March 19.
Andrew Stephenson and Renee Bowen will be presenting at the Trucking Claims Boot Camps in Dallas, TX, Phoenix, AZ, Denver, CO, Omaha, NE, Philadephia, PA, Chicago, IL and Atlanta, GA. Steve Marshall will be presenting in Orlando, FL. Boot Camps are held February 11 – May 15.
During a recent incident between squeegee kids and a Baltimore City driver, a firearm inside the driver’s vehicle discharged. Another citizen alleges he was punched by a squeegee kid while stopped at an intersection near downtown. More often, the complaints are tamer, concerning property damage to vehicles by squeegee kids. City officials claim to be working for a resolution though most are simply sitting by, hoping that the cold weather will put a freeze on the squeegee problem.
The Baltimore City Code expressly prohibits the use of squeegees for panhandling on city streets. Specifically, Article 19, Section 47-4(4) prohibits soliciting “from any operator or occupant of a motor vehicle that is in traffic on a public street, whether in exchange for cleaning the vehicle’s windows or otherwise.” The Baltimore City Code further prohibits “aggressive soliciting,” which includes “(4) intentionally blocking or interfering with the safe passage of a person or a vehicle by any means, including unreasonably causing a person to take evasive action to avoid physical contact; (5) using obscene or abusive language either during the course of soliciting or following a refusal; or (6) acting with the intent of intimidating another person into giving money or another thing of value.” Balt. City Code Art. 19 § 47-1. Despite the city ordinance, a squeegee problem is on the rise.
It is unclear who citizens can turn to for a remedy to any property damage. Citizens often ask whether they can sue the city for failing to enforce provisions of the code, but the answer is no; the city has discretion in enforcing its code. However, while there is no cause of action against the city for failing to enforce the soliciting or windowing cleaning prohibitions, there may be a cause of action available to an individual if injured due to the city’s negligence. The injured party must establish that the city owed them a duty of care, breached that duty of care, and that breach caused the individual injury. But it is unlikely that a judge is going to find that the city owes any duty to an individual whose vehicle is damaged by an aggressive solicitor on the street.
Citizens could sue the damaging squeegee kid for bodily injury. Intentional torts such as assault and battery are available causes of civil actions for occurrences that escalate into violence, but if an individual is washing car windows for money, he/she probably does not have the ability to pay a judgment.
An individual’s own automobile collision insurance can assist that person if his/her vehicle is damaged by a squeegee kid. However, this leaves the innocent driver paying a deductible and the insurance company paying for vehicle repairs that, in theory, could have been prevented. Importantly, Maryland law requires that the insurer offer collision coverage but there is no requirement for drivers to buy collision coverage. As such, those who opted out of collision coverage will likely have to pay for their own property damage caused by squeegee kids.
Given the City’s lack of liability or action with respect to the squeegee kids, the best option to avoid unnecessary expenses is to find alternative routes.
For more information about this article, please contact Ellen Stewart at 410.230.2670 or email@example.com.
The attorney-client privilege allows for confidential communication between an attorney and his or her client. A corollary privilege is the attorney work product doctrine. The work product doctrine allows for an attorney to draft correspondence, make notes, record impressions, etc., in anticipation of litigation without such materials then becoming available to an opposing party or counsel by demand. In Delaware, an instructional letter drafted by an attorney and sent to an expert in advance of a Defense Medical Evaluation is typically considered attorney work product and not subject to discovery. However, there are cases in which the Delaware Industrial Accident Board allows for the discovery of such correspondence at the request of opposing counsel.
In Peter M. Sisofo v. United Parcel Service, No. 977588 (Del. I.A.B., Mar. 3, 1993), the claimant sought to obtain a copy of the employer’s instructional letter to the employer’s medical expert. The board ruled that the expert’s report could not be “fully understood” without the employer’s letter and ordered that it be produced. The employer conceded that the claimant could have the letter but wished to withhold it until the expert’s deposition. Since this decision, claimants’ attorneys have routinely cited to Sisofo in their Requests for Production to ask for all correspondence sent by defense counsel to their experts.
In Christopher Moore v. Amazon, No. 1427678 (Del. I.A.B., Dec. 12, 2018), the employer’s medical expert issued a report on causation. The employer then sent the expert additional records and requested an updated opinion. The expert changed his opinion after reviewing the letter and updated records. The claimant requested a copy of the letter sent to the expert to investigate what caused the expert to change his opinion.
The board determined the letter had been drafted in anticipation of litigation; therefore, it was attorney work product. However, the board explained this privilege is a qualified immunity and the letter may be producible if the claimant could demonstrate: 1) there was a substantial need for the letter; and 2) the claimant could not obtain the substantial equivalent of the letter by other means without undue hardship. The board found the sole purpose of the discovery request was to uncover what evidence changed the expert’s opinion. The board ruled that such evidence was in the expert’s report – the newly reviewed medical records – and so the claimant did not need the letter itself. The board did note that to the extent “the letter might contain strategizing or legal theories . . . that sort of information is protected as work product and is not producible nor admissible as evidence.” The board denied the claimant’s request to introduce the letter.
The lessons that defense counsel and their clients can learn from these cases is to ensure instructional letters provide a map of what information and evidence we (defense counsel) consider relevant to lead the expert where to look but not be the only source of information. We may include generalized impressions and theories in the letter (e.g., the injury appears out of proportion with the mechanism of injury or this injury may be a recurrence of symptoms from a prior accident) as such writings should be privileged. However, we should be aware that the letter may ultimately be producible and take caution not to include anything in the letter we wish to keep private. We should also make certain our experts answer the questions asked. This can be accomplished by listing our questions clearly and coherently and asking for revised reports when necessary. Lastly, we should not concede to all discovery requests as doing so may waive a privilege we later seek to raise.
For more information about this article, please contact Robert S. Hunt, Jr. at 302.594.9780 or firstname.lastname@example.org.
Lynn McHale Fitzpatrick, a principal in F&P’s Herndon office, has received the distinction of being elected to the Fellows of the College of Workers’ Compensation Lawyers class of 2019. The college honors attorneys, in the field of workers’ compensation, who have been practicing 20 years or longer, and are nominated based on “the highest professional qualifications and ethical standards, character, integrity, professional expertise and leadership.” In addition to this, an attorney has also written and/or lectured on the topic of workers’ compensation and has shown to be a scholar in the field.
The annual induction dinner will be held at the Biltmore Hotel in Coral Gables, FL on March 16, 2019 following the Workers’ Compensation Midwinter Meeting and the College of Worker’s Compensation Lawyers (CWCL) Symposium. For more information about the CWCL visit http://www.cwclawyers.org/.
James R. Forrester
Governor Hogan appointed James R. Forrester to the Maryland Workers’ Compensation Commission in July 2018. Commissioner Forrester received his undergraduate degree from Randolph-Macon College. He later graduated from the University of Baltimore’s Merrick School of Business and School of Law, earning a Master of Business Administration in 1995 and a Juris Doctor in 1998, with honors.
Before joining the Commission, in 1999, then-attorney Forrester began work as an associate claims attorney at the Law Offices of Ileen M. Ticer. Thereafter, he joined the Workers’ Compensation and Employers’ Liability Department at Semmes Bowen & Semmes, P.C., where he was elected principal in 2009.
Commissioner Forrester has concentrated in the area of workers’ compensation and has appeared before all levels of the Maryland judiciary. He has practiced in the District of Columbia, where he is also licensed.
Commissioner Forrester holds leadership roles in several civic organizations. He has also served as president and member of the Executive Board of the Baltimore Claims Association as well as co-Chair of the Workers’ Compensation Section of the Maryland Defense Counsel.
Howard L. Metz
Governor Hogan recently appointed Howard L. Metz to the Maryland Workers’ Compensation Commission. He began his term in January 2019. Commissioner Metz received his undergraduate degree from American University and his Juris Doctor from Rutgers University.
Before joining the Commission, Commissioner Metz was a litigation attorney representing clients in state and federal courts in Maryland, the District of Columbia, Pennsylvania and New Jersey. Prior to starting his own firm in Frederick, Maryland, Commissioner Metz was a non-equity partner & associate at Ashcraft & Gerel, LLP from 1987 – 2000. Prior to that he was an associate at Jacobs, Todd & Bruso from 1985 – 1987. He has also served as a court-appointed mediator by Circuit Court for Frederick County since 2000 and by Circuit Court for Washington County since 2008.
Commissioner Metz is involved in a plethora of pro bono and volunteer activities, including Frederick County Veterans’ History Project, Pro Bono & Justice for All Committee, and the Bar Association of Frederick County.
Allan H. Kittleman
Governor Hogan recently appointed Allan H. Kittleman to the Maryland Workers’ Compensation Commission. He began his term in January 2019. Commissioner Kittleman received his undergraduate degree from University of Maryland, Baltimore County (UMBC). He obtained his Juris Doctor from the University of Maryland School of Law in 1988.
Before joining the Commission, then-attorney Kittleman was admitted to the Maryland Bar in 1988 and began his legal career as an associate with Smith, Somerville & Case. He was also an associate at Herwig & Humphreys, LLP from 1991 to 1996; he was promoted to partner in 1996 and left there in 2003. In addition, he worked part-time for the law firm formerly known as Godwin, Erlandson, MacLaughlin, Vernon & Daney since 2008.
A Maryland native, Commissioner Kittleman is perhaps most well-known for his political life. He was Howard County Executive from 2014 to 2018, a Maryland State Senator from 2004 to 2014 (representing the 9th district covering Howard and Carroll Counties) and State Senate Minority Leader from 2008 to 2011, and a member of the Howard County Council from 1998 to 2004.
Calvo v. Montgomery County, 459 Md. 315 (2018), a May 21, 2018 decision by the Maryland Court of Appeals, did not establish new law, but instead clarified the bounds of the law of the “special mission” or “errand” exception to the going and coming rule. The going and coming rule generally prohibits accidents taking place during an employee’s trip to and from the workplace from being a compensable work accident. The special mission exception, however, may allow an accident occurring during that trip to or from the workplace to be compensable under workers’ compensation law.
As noted in Calvo, the special mission exception has long been recognized by Maryland courts to allow a trip not normally covered under the Workers’ Compensation Act to be brought within the course of employment. A trip may be considered a special mission when “the trouble and time of making the journey, or the special inconvenience, hazard, or urgency of making it in the particular circumstances is itself sufficiently substantial to be viewed as an integral part of the service itself.” Calvo, 459 Md. 315, 333–34 (2018).
To qualify for the exception, the journey must have been required by the Employer. In determining whether a journey qualifies as a special mission, the following factors and bounds are at issue:
- Regularity or usualness of journey, in the context of the normal job duties.
The Court clarified that the existing bounds show that journeys that occur once a month, or are part of regular job duties, are not unusual. A journey on hours or days that are not normally worked could be unusual.
- Onerousness of the journey compared to the service performed at the end of the journey.
The conditions of travel, distance of travel, and whether the journey was on a normal work day and hours all should be balanced against the task at the end of the journey. Some employees may have a more onerous regular job such as being on call constantly, but that is insufficient in that case to bring about the special errand exception.
- Suddenness or urgency of the mission.
The Court minimized this factor so much that it made clear it is not necessary for a finding of the special errand exception. Factors that could show suddenness and urgency include the timing of notice given and a deadline on the same day.
For more information about this article, please contact April M. Kerns at 410.230.2975 or email@example.com.
In Delaware, an employer seeking to terminate a claimant’s temporary total disability benefits has the initial burden to demonstrate the claimant is no longer physically unable to work at any capacity. The burden then shifts to the claimant to prove if they are a displaced worker. A worker can be prima facie or actually displaced. Prima facie displacement is based upon a variety of factors including physical impairment as well as the worker’s age, education, and work background. Actual displacement deals with a reasonable but unsuccessful job search, which is attributed to the work injury. To rebut a displaced worker finding, the employer must demonstrate job availability for the claimant in the open labor market.
The problem with cases involving undocumented workers is how an employer proves job availability for a claimant who cannot legally be employed. In Roos Foods v. Guardado, 152 A.3d 114, 122 (Del. 2016), the Supreme Court of Delaware considered an employer’s appeal of a decision of the Industrial Accident Board (“Board”) as affirmed by the Delaware Superior Court. The employer, Roos Foods, had filed a petition with the Board to terminate Ms. Guardado’s total disability benefits on the ground that the worker was no longer disabled and could return to work. The Board denied the petition, finding that Ms. Guardado was prima facie displaced based solely on her status as an undocumented worker and further finding that the employer had not demonstrated there was work available for Ms. Guardado within her capabilities. On appeal, the Delaware Superior Court affirmed the Board’s decision. The employer then appealed to the state’s Supreme Court.
The Supreme Court of Delaware found held that a claimant’s undocumented worker status does not automatically make them a displaced worker but should be considered in the context of actual displacement. The Court acknowledged the reality that there are undocumented workers in Delaware and indicated employers can use “reliable market evidence” to demonstrate such job availability. The Court remanded the matter to the Industrial Accident Board.
Upon remand, the employer retained Dr. Desmond Toohey, Assistant Professor of Economics at the University of Delaware, who prepared a report on jobs that exist for undocumented workers in Delaware. Dr. Toohey estimated there to be 28,000 undocumented workers in Delaware, 80% of which are employed. He identified the occupations and industries employing such workers and estimated the number of workers in these fields. Dr. Toohey then compared the jobs identified in the employer’s Labor Market Survey to the number of undocumented workers in the corresponding occupations and industries. He concluded there were thousands of undocumented workers employed in Delaware in the types of occupations and industries identified in the Labor Market Survey.
The Board still found the claimant to be a prima facie displaced worker based upon her education, experience, and work restrictions but opined that the employer’s Labor Market Survey rebutted her prima facie displacement. The Board held that Dr. Toohey’s testimony and report met the “reliable market evidence” standard. The employer’s Termination Petition was granted. The claimant appealed.
In an unreported decision, which was later affirmed by the Delaware Supreme Court, the Superior Court affirmed the Board’s decision (2018 WL 776422). The Court explained the burden on the employer is to demonstrate: first, the availability of jobs for the claimant; and second, such jobs are within the categories of occupations and industries employing undocumented workers in Delaware. The Court found the employer’s Labor Market Survey met the first element and Dr. Toohey’s testimony met the second.
This ruling provides some level of clarity as to what may be required of employers to meet the Delaware Supreme Court’s “reliable market evidence” standard and how to terminate total disability benefits for undocumented workers. Based upon the current case law, employers should strongly consider retaining an expert in labor and economics to provide evidence on the types of jobs and industries in which undocumented workers are employed in Delaware, as well as a medical opinion on work capabilities and a vocational specialist to generate a Labor Market Survey.
 Guardado v. Roos Foods, Inc. 2018 WL 776422 (Del. Super. 2018).
For more information about this article, please contact Robert Hunt at 302.594.9780 or firstname.lastname@example.org.