Ramos v. District of Columbia Department of Employment Services Addresses Theory of Causation

In Ramos v. District of Columbia Department of Employment Services, 227 A.3d 1108 (2020), the DC Court of Appeals (DCCA) stated that unless the defense addresses the claimant’s theory of causation, the presumption is not rebutted.  In Ramos, the claimant, Maria Ramos, was employed as a custodian.  She had uncontrolled hypertension and poorly controlled diabetes.  While at work, she suffered a stroke.  The defense’s Independent Medical Examination (IME) stated that the stroke’s major contributory factors were poorly controlled diabetes and uncontrolled hypertension.  The IME doctor said he would not attribute the stroke to the claimant’s employment.  However, upon further questioning from the claimant’s attorney and the Administrative Law Judge (ALJ), the IME doctor testified that physical exertion will increase a person’s blood pressure and that strokes could result from high blood pressure.  The IME doctor also stated that he could not offer an opinion about whether or not the claimant’s job responsibilities would in any way cause her to have the stroke.  The IME doctor stated that he did not have information regarding the specifics of the claimant’s employment (he did not witness what her job responsibilities involved or how heavy duty they were). Therefore, he could not provide an opinion as to that specific question.  The claimant argued in closing that physical exertion of her work aggravated her hypertension and thereby caused her stroke.

The ALJ denied the claim and, the Compensation Review Board (CRB) affirmed.  The DCCA reversed, stated that it was compensable, and remanded for an order consistent with its decision.  The DCCA stated:

  1. The aggravation rule is well-established as a valid theory.  “Whether [the claimant] was teetering on the edge of a stroke independent of her work is thus beside the point; if her work inched her over that edge, however slightly, her injury is compensable.”
  2. The employer did not refute the claimant’s theory of causation.  The defense IME said he did not have an opinion on that.  “If the employer fails to address and rebut the employee’s theory with substantial evidence, the presumption of compensability stands.”

In other cases, the DCCA has held that the claimant is not limited to one theory of causation. The ALJ is obligated to consider other possible theories of causation that the claimant did not raise, including possible causes the claimant did not notice or remember.  Nor does there need to be a discrete traumatic event.

The takeaway:  Defense experts have to address the claimant’s specific theory of causation and other possible work-related theories of causation.  Defense experts should know the claimant’s job duties.  One must be as thorough as possible when defending a workers’ compensation claim in DC.

Written by counsel Naureen Weissman.

The District of Columbia Will Not Hold In-Person Informal Conferences or Formal Hearings

The District of Columbia is not holding in-person informal conferences or Formal Hearings.  The informal conferences are being held telephonically and the Formal Hearings are being held via the web.  The CRB has recently ruled that there is NO right to a physically proximate (in person) Formal Hearing.  Calesli Durant v. Washington Gas Company et al., CRB No. 20-167, AHD No. 20-211, OWC No. 694983 (August 25, 2020).  If a party objects to a web hearing, the party must identify with particularity how a video hearing impairs the ability to impeach a witness and impedes the ALJ’s ability to assess credibility.  General assertions that credibility assessments require an in-person hearing are not sufficient.

Additionally, OWC has moved to:

400 Virginia Ave, S.W.
Washington, DC 20024

All mail should still be sent to the Minnesota Ave address.

Updates on Workers’ Compensation Operations in the District of Columbia

The District of Columbia is not holding in-person informal conferences or Formal Hearings.  The informal conferences are being telephonically and the Formal Hearings are being held via the web.  The CRB has recently ruled that there is NO right to a physically proximate (in person) Formal Hearing.  Calesli Durant v. Washington Gas Company et al., CRB No. 20-167, AHD No. 20-211, OWC No. 694983 (August 25, 2020).  If a party objects to a web hearing, the party must identify with particularity how a video hearing impairs the ability to impeach a witness and impedes the ALJ’s ability to assess credibility.  General assertions that credibility assessments require an in-person hearing are not sufficient.

Additionally, OWC has moved to:

400 Virginia Ave, S.W.

Washington, DC 20024

All mail should still be sent to the Minnesota Ave address.

Maryland Workers’ Compensation Commission Responds to Coronavirus (COVID-19)

After closing its doors to in-person hearings on March 16, 2020, the Maryland Workers’ Compensation Commission has seen a backlog of cases.  On June 6, 2020, the Commission resumed in-person hearings while continuing to allow the option for virtual hearings, which began in May.  What can you expect from these hearings?

New Shared Requirements:

  • All exhibits must be electronically submitted three days prior to a hearing. Most Commissioners appear to have reviewed all exhibits before the proceedings, which may allow for a more streamlined hearing where the Commissioner likely has an idea of the basic facts of the dispute beforehand.
  • Claimant’s Counsel must also submit fee petitions electronically, which requires their client’s signatures before the hearing. We may see more delayed attorney’s fee awards as a result.
  • Impeachment evidence cannot be physically submitted but must be immediately available to all parties and may be formally submitted after the hearing.
  • Stipulations, settlements, withdrawn issues, or other preliminary matters can be emailed to the Commissioner’s assistant instead of taking up a hearing slot or requiring any physical attendance.

Virtual hearings:

  • These hearings are conducted through the Microsoft Teams software and require all parties have video, but those without audio capacity can call in using a telephone. Some Commissioners have set up the hearings so all parties may see everyone at the same time, while others have limited the screen so that all parties, other than the Commissioner, may see the Claimant only.
  • No one may force any claim into a virtual hearing as they require the consent of all parties to schedule.
  • There remain some questions as to how to use impeachment evidence with these hearings, which may make these virtual hearings less advisable for more complex claims.

In-person hearings are not yet back to business as usual: 

  • Each hearing is hand-set by the Commission to provide a time for each claim to proceed. You may not enter the hearing site until five to ten minutes before the scheduled time.
  • Each person is asked to fill out screening questionnaires, provide contact information for contact tracing, and have his/her temperature taken by contactless thermometer before entering the hearing room.
  • Each person must wear a mask and maintain social distancing of at least six feet. The hearing rooms have been spread apart to allow this distance, with the claimant sitting in a chair alone in the middle of the room.
  • Parties are encouraged to bring only those people absolutely necessary for a hearing to minimize the number of people in any room at one time.
  • After the hearing, all parties are required to immediately leave the premises. As a result, you will only see the people involved in the hearings immediately before and after your hearing, eliminating the ability to follow up on intractable cases in person.

Written by associate April Kerns.


Michael A. Washington v. Arena Football One and Travelers Indemnity Company: Attorney’s Fee Award

This matter was appealed to the Compensation Review Board on Reconsideration of an Award of Attorney’s Fee by Administrative Law Judge Donna J. Henderson.

The parties had attended an informal conference on permanent partial disability (PPD), and a recommendation on PPD was issued.  Claimant, Michael Washington, filed an Application for a Formal Hearing.  Employer, Arena Football One, then submitted a letter accepting the recommendation.

On March 5, 2020, after an evidentiary hearing was held, a Compensation Order was issued, awarding Claimant PPD benefits to his left leg as a result of a work injury sustained.  On April 2, 2020, Claimant filed a petition requesting an award of attorney’s fees against Employer in the amount of $3,480.95.  Employer filed an Opposition.  An ALJ subsequently awarded Claimant’s counsel attorney’s fees based upon the 4% difference between an earlier Recommendation issued and the Compensation Order.  On April 14, 2020, an Order on Reconsideration of Award of attorney fee was issued concluding that Employer had never been ordered to pay Claimant any percentage of permanent disability. Therefore, Employer could not be ordered to pay attorney’s fees.  Claimant appealed.

On appeal, Employer argued that it is not liable to pay Claimant an attorney’s fee of any amount, as it did not refuse to pay Claimant PPD benefits pursuant to the OWC recommendation.  Employer argued that Claimant filed an Application for Formal Hearing and that Employer later submitted a letter accepting the recommendation.  Therefore, it was Claimant who rejected the OWC recommendation.  Further, Employer argues that D.C. Code § 32-1530 (b) is specific in setting forth the requisite conditions for a claimant to recover attorney’s fees: the employer must refuse to pay compensation for a claimant to be awarded attorney’s fees and it denies such fees when the condition is not met.

Claimant argued that because Employer did not pay any PPD benefits despite the recommendation made by the Office of Workers’ Compensation (OWC), Employer de facto refused the recommendation offered by OWC.

The CRB affirmed the April 14, 2020 Order on Reconsideration of Award of Attorney Fee.  The CRB noted that in Providence Hosp. v. DOES, 855 A.2d 1108, 1111 (D.C. 2004), the District of Columbia Court of Appeals stated that “[t]he statute clearly did not apply because [the employer] never rejected the mayor’s recommendation” and thus, the claimant could not recover attorney’s fees.  Id. at 1113.  Further, the District of Columbia Court of Appeals concluded that the statute is specific in setting forth the requisite conditions for Claimant to recover attorney’s fees and leaves no discretion to the agency or court.  Here, neither party argues that Employer formally rejected the recommendation prior to Claimant’s rejection of the Memorandum of the Informal Conference.  Further, when Claimant filed an Application for a Formal Hearing, any subsequent acceptance or failure to reject by Employer is irrelevant. The April 14, 2020 Order on Reconsideration of Award of Attorney Fee was affirmed.

The practical effect of this decision is that there are no de facto rejections.  An employer must expressly reject the recommendation in order

New Code Section Changes Employer Response Obligation under the VA Workers’ Comp Act

In its February 2020 session, Virginia’s General Assembly made a change to the Virginia Workers’ Compensation Act. The following briefly summarizes the new amendment:

Under the new section 65.2-601.2, the employer will be required to provide a statement of intent in response to an employee’s claim within 30 days. When a claim is filed, the Commission will now order the employer, within 30 days of such order, to advise the employee whether the employer intends to (i) accept the employee’s claim, (ii) deny the employee’s claim, or (iii) if the employer lacks sufficient information from the employee or a third party to be able to accept or deny the claim.

If the employer intends to deny the claim, the response shall provide reasons for the denial, and if the employer is unable to accept or deny because of lack of sufficient information, the employer must identify the information needed from the employee or a third party to enable it to make such a determination.

Failure to make a timely response could result in a penalty.

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Authentication of Social Media Evidence

In this modern age—perhaps now more than ever —our population is using social media to connect with one another by sharing pictures, articles, and other various communications through social networking platforms such as Facebook©, Instagram©, and Twitter©.  As our society has continued its increasing use of social media, the issue has led to a growing topic in the legal landscape. Specifically, courts have grappled with the introduction of social media as evidence in litigation.

In a recent opinion, State of Maryland v. Hayes Sample, No. 54 September Term, 2019, the Court of Appeals of Maryland considered the standard for admitting social media evidence in a criminal case.  Hayes Sample was one of two individuals involved in an attempted armed robbery of a liquor store in Towson, Maryland.  Sample was charged with attempted armed robbery, first-degree assault, as well as various other handgun related charges.  Sample’s alleged accomplice, Claude Mayo, was shot and killed by the store owner in self-defense.  In its case against Sample, the state introduced evidence connecting Sample and Hayes through their Facebook© profiles, as well as evidence that Sample “unfriended” Mayo on Facebook© shortly after the crime and Mayo’s death.

The Circuit Court allowed the Facebook© records into evidence over the defense’s objections.  After the trial, the jury found Sample guilty of various charges, including attempted armed robbery and first-degree assault.  Sample appealed to the Court of Special Appeals, which reversed the Circuit Court and remanded the case back for a new trial.  The state then appealed to the Court of Appeals, which granted certiorari and reversed the decision of the Court of Special Appeals, affirming the Circuit Court decision to admit the Facebook© evidence.

Standard of Proof for Authentication of Social Media Evidence

In its analysis, the Court of Appeals noted the standard of proof to authenticate social media evidence is by a preponderance of the evidence under Md. Rule 5-901(b)(4).  There must be sufficient circumstantial evidence for a reasonable juror to find that it is more likely than not that the social media evidence is what it is purported to be.

The Facebook© profiles included in the social media records produced at trial included cities familiar to both suspects Sample and Mayo.  The username associated with one of the profiles was “SoLo Haze.”  Although not an exact match to the defendant’s name, the Court found it persuasive that Haze was a homophone of Sample’s first name.  Additionally, there were “friends” connected to the profiles who were associated with both Hayes and Sample.  Finally, the email address registered to the SoLo Haze profile was mrsample2015@gmail.com, which clearly included Samples’ last name.  Because the Facebook© profile in question contained sufficient distinctive characteristics linking it to Sample, the Court determined the trial court had properly held a reasonable juror could find that it was, in fact, Sample’s profile.  The Court further reasoned the evidence showing Sample owned the profile constituted strong evidence in itself that he was responsible for the action of unfriending Mayo on Facebook©.  This apparent attempt to disassociate himself from Mayo after the crime was circumstantial evidence of Sample’s guilt.

Although Sample arose in a criminal law context, the evidentiary principles established apply equally to the authentication of social media in a civil context.  Thus, when seeking to authenticate social media evidence in a workers’ compensation claim, it is important to present proof upon which the finder of fact may rely to reasonably conclude that the social media evidence is what it is purported to be.  To this end, it may be a valuable pursuit for employers and insurers to seek to unearth additional background information related to a workers’ compensation claimant such as prior residences, nicknames, known associates, etc.  While at first, this information may not be directly relevant to the workers’ compensation claim, it could be a useful tool to authenticate social media evidence that does relate to the work accident or injury in question.

Written by associate Megan Berey.

Maryland Intermediate Appellate Court Examines Co-Employment

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.

For more information about this article, please contact Megan Berey at 410.230.1089 or mberey@fandpnet.com.

When Is the Letter to Your Medical Expert Discoverable in Delaware?

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 rhunt@fandpnet.com.

Changes at the Maryland Workers’ Compensation Commission

Commissioner Godwin Retires

Commissioner Lauren Godwin, who served in her position since 1996, has retired from the Maryland Workers’ Compensation Commission effective July 1, 2019.

Welcoming Commissioner Oh

Effective July 1, 2019, Governor Hogan appointed Ju (Lynn) Y. Oh as a commissioner for the Maryland Workers’ Compensation Commission.

Ms. Oh received her Juris Doctor from the University of Baltimore School of Law in 2004.

Following law school, Ms. Oh served as a Judicial Law Clerk to the Honorable Thomas F. Stansfield from 2005 to 2006.  She then joined the law office of Humphreys, McLaughlin & McAleer, LLC as an Associate in 2006.  Ms. Oh became a partner at that firm in 2012, where she represented employers and insurers leading up to her Commission appointment.