ELD Compliance Suggests Less HOS Violations Since ELD Mandate Implementation

The electronic logging device (“ELD”) mandate has been in full effect since December 16, 2019.  The mandate is aimed at creating safer roadways by allowing more efficient tracking and enforcement of compliance with hours-of-service regulations.  FMCSA found that trucks equipped with ELDs had a 53% lower driving-related HOS violation risk and a 49% lower non-driving-related HOS violation risk than non-equipped trucks.  Since the ELD initial compliance date of December 2017 through December 2020, a year after the mandate went into full effect, road-side inspections with HOS violations dropped by more than 50% according to the FMCSA.  Also, overall driver violations at roadside inspections dropped to 784,188 in fiscal year 2020 compared to that of 1,023,654 in fiscal year 2018.

Additionally, FMCSA launched an online program to help both drivers and their employers better understand the hours-of-service rules that went into effect on September 29, 2020.  The Educational Tool for Hours of Service (“ETHOS”) allows users to enter their duty status into a log so that potential violations can be identified. The ETHOS program will allow drivers to create a sample record of a duty log so they can determine if there were any violations.  Using a mock duty status program tends to be a better learning experience for the drivers and safety managers who are accustomed to working with the ELDs on a daily basis.  FMCSA has stated that the ETHOS program is solely meant for educational purposes, and that any data provided by drivers is not being retained for any other purpose.  This training is important because the industry must continue to grow and adapt with the advancements in technology.

That is because, with the continued development of cellular technology, your ELD compliance could be impacted.  Most mobile carriers are beginning to shut down their 3G networks to make room for more advanced networks, including 5G.  Any ELD that requires 3G cellular connectivity to perform its functionality will no longer be in compliance with the technical specifications in the ELD rule after the 3G network it relies on is shut down.  When in an area that does not support 3G, a 3G device will register a malfunction. In accordance with 49 CFR 395.34, the carrier has eight days to get the malfunction resolved, in this case by replacement, unless an extension is granted.  For a reset or replaced ELD, under 49 CFR 395.8(k), data or documents showing the driver’s record of duty status (RODS) for the current 24-hour period and the previous 7 days must still be retained.  These can either be uploaded into the “new” ELD when it is set up or retained in paper format.

As of the date of this article, some of the major mobile carriers that have already shut down their 3G networks include AT&T, Sprint, Sprint LTE, and T-Mobile, and, most recently, Verizon, which shut down its 3G network around December 31, 2022.  Many other carriers, such as Cricket, Boost, Straight Talk, and several Lifeline mobile service providers utilize the AT&T, Verizon, and T-Mobile networks.  If your ELDs rely on a 3G network, ask your ELD provider about their plan for upgrading or replacing your device to one that will be supported on a more advanced network.  As of the date of this article, all previously granted FMCSA extensions have expired which allowed drivers to use paper records of duty status in lieu of an ELD until the 3G-dependent devices are replaced with a compliant 4G or 5G device.

Motor carriers and drivers should be fully aware of their obligations under the ELD mandate and cognizant of the technical and practical effects of ensuring full compliance in order to avoid potential violations and service interruptions.

Written by associate Patrick Wachter.

Child Support & the WCC – HB650: A Solution Everyone Can Agree On

On January 31, 2022, Delegate Benjamin Brooks introduced House Bill 650 – Execution on a Judgment – Child Support Arrearage – Workers’ Compensation (“HB 650”) before the Maryland “for the purposes of specifying a certain percentage of the net recovery by the debtor on a claim for workers’ compensation is subject to execution on a judgment for a child support arrearage.”

F&P principals Albert (“Bert”) B. Randall, Jr., Esq., and John J. Handscomb, Esq., worked closely with Delegate Brooks on this bill from the outset, consulting and advising on both the importance and need for such legislation, and assisted in the crafting and drafting of same.   Additionally, Bert Randall provided written and oral testimony in support of HB 650 before the House Judiciary Committee and House of Delegates and written testimony in support of HB650 to the Maryland Senate.

Pursuant to Delegate Brooks’ testimony before the House Judiciary Committee, the purpose of the HB650 bill is to specify that 25% of the net recovery on a claim for workers’ compensation is subject to execution on a judgment for child support arrearage, as current law does not explicitly state what, if any, indemnity benefits can be attached when a child support order is in place. “HB650 merely offers clarity in an otherwise ambiguous statute in determining which workers’ compensation indemnity benefits can be garnished,” Delegate Brooks’ stated.

Under the Maryland Workers’ Compensation Act, victims of on-the-job injuries are entitled to workers’ compensation benefits to compensate for resulting economic losses, including lost wages (“temporary total disability”) and permanency (loss of future earning capacity owing to impairment caused by an injury that did not heal completely). Compensation benefits are paid by a workers’ compensation insurance company, usually by check, directly to the injured worker.

Child support orders are enforced by garnishing money in the hands of a third party (insurance company) that would otherwise be paid to a deadbeat parent. Under a Memorandum of Understanding between the Workers’ Compensation Commission and child support enforcement, commission data files are mined to identify awards to parents with child support arrearages. Garnishments are then served on the workers’ compensation insurers ordered to pay compensation to these parents.

Subsection 11-504(b)(2) of the Courts and Judicial Proceeding Article prohibits garnishment of “money payable in the event of sickness, accident, injury, or death of any person, including compensation for loss of future earnings. This exemption includes but is not limited to money payable on account of . . ., compromises, insurance, benefits, compensation, and relief.”

Notwithstanding Section b of 11-504, which exempts “compensation” from garnishment, child support authorities routinely attempt to garnish a significant proportion or all of a worker’s compensation benefits, leaving claimants with little or no money to meet the costs of daily living. Circuit courts asked to decide whether Subsection B exempts workers’ compensation benefits from child support garnishment have reached conflicting decisions – meaning child support either received 100% of its ask or nothing.

As currently drafted House Bill 650 amends § 11-504 of the Courts and Judicial Proceedings Article to authorize the Child Support Agency (CSA) to execute a judgment on a claim for personal injury and workers’ compensation benefits. The statute would allow the CSA to collect temporary partial disability, temporary total disability, permanent partial disability, permanent total disability, vocational rehabilitation compensation, and any other indemnity benefits paid to in connection with a Workers’ Compensation Claim, from a noncustodial parent for an arrearage in Child Support.

Passage of House Bill 650 would establish that “twenty-five percent of the net recovery” by a debtor is subject to execution on a judgment for child support arrearage on a claim for personal injury (“accidental injury”) with the Workers’ Compensation Commission. Thus, clarifying an existing ambiguity in Family Law for the Child Support Administration to use this collection source for payment of child support arrearages from noncustodial parents who are awarded indemnity benefits and/or settlements from personal injury through workers’ compensation claims.

The need for this clarification of the existing law is clear. As noted in Bert Randall’s written testimony in support of HB650 before the House Judiciary Committee on February 17, 2022, “As a practitioner that litigates workers’ compensation claims on behalf of Maryland Employers and their insurers, like many of my colleagues, I’ve often been caught in the middle of differing opinion offered by Claimants’ attorney’s and child support enforcement authorities. This results in a legal quagmire with threats of litigation and penalties for non-compliance from both Claimant’s attorneys and enforcement authorities with no easy solution. These disputes create additional litigation, and legal expense and result in judicial inefficiency. This bill solves that issue by clarifying all the types and amounts of benefits that may be withheld for child support.”  Randall continued, “This bill favorably amends the existing statute so that workers’ compensation entitlements are treated with other analogous personal injury recoveries and is consistent with existing state and federal law.”

On March 18, 2022, the House of Delegates unanimously passed HB650 in a 131-0 vote. After a hearing before the Senate held on March 31, 2022, HB650 came out of committee with a favorable report on a 9-1 vote before time ran out in the 2022 Legislative Session for the bill to be returned to the originating chamber for review.   Thus, preventing HB650 from becoming a much-needed new law.

Though HB650 did not make the cut for this most recent Legislative Session, the importance of the bill was signified by support from the Defense Bar, Claimants’ Bar, Chesapeake Employers Insurance Company, and representatives from Child Support Enforcement Agencies. All those in support of the bill plan to resubmit the same for consideration next year and anticipate that it will become law at that time.

Written by associate Kara Parker.

Outlining a District Split on Snap Removal with Lil Jon’s Hit Song “Snap Yo Fingers”

Lil Jon’s 2006 hit song, “Snap Yo Fingers!,” is not only the perfect exemplar of his beloved production and lyrical style but also a concise illustration of one side of an ongoing debate concerning removal procedure in the United State District Court for the District of Maryland:

Snap ya fingers! Do ya step!
You can do it all by yo’ self!
Let me see you do it! Ay!
Let me see you do it! Ay!

LIL JON, et al., Snap Yo Fingers (TVT Records 2006).

By way of background, a defendant who has been sued in a state court may remove the matter to a United States District Court, provided certain jurisdictional requirements are met.  Plaintiffs possess an immense advantage in selecting the forum to bring suit, and removal allows a defendant to mitigate that advantage to a certain extent. Federal removal jurisdiction generally comes in two flavors: subject-matter jurisdiction over federal question claims, “arising under the Constitution, law, or treaties of the United States;” and diversity jurisdiction where there is jurisdictional diversity amongst the parties, the amount in controversy is in excess of $75,000.00, and all served defendants consent to removal.  See 28 U.S. Code § 1331 and 28 U.S. Code § 1332. Diversity will be destroyed where there is a member of an LLC who shares a jurisdiction with an opposing party, a party who shares a state in common with another party on the opposite side of the “v”, or a suit being brought in the state in which a defendant is a resident and has been properly “joined and served” (the “forum defendant” rule).  If a party can meet either basis for removal, they have thirty (30) days from the date a complaint is served to remove to federal court.    See 28 U.S. Code § 1446. In the transportation context, removal opportunities are most often presented based on diversity jurisdiction. For example a lawsuit brought in Jurisdiction A, with a plaintiff domiciled in Jurisdiction B, a corporate defendant/motor carrier domiciled in Jurisdiction C, a corporate defendant domiciled in Jurisdiction D, and an individual defendant/driver domiciled in Jurisdiction E.

What happens when there is a diverse defendant who has been served and seeks removal, but an unserved forum defendant (i.e., a lawsuit brought in Jurisdiction A, with a plaintiff domiciled in Jurisdiction B, a corporate defendant/motor carrier domiciled in Jurisdiction C who has been “joined and served,” an individual defendant domiciled in Jurisdiction D who has been properly “joined and served,” but a defendant driver in Jurisdiction A who has not been properly “joined and served”)?

A procedure known as “snap removal” allows a diverse defendant to remove a matter to a United States District Court based on diversity before a forum defendant has been properly “joined and served” – effectively snapping their fingers and removing to federal court without the necessity of consent from the other named, unserved defendant(s). The federal appellate courts in the 2nd, 3rd, and 5th Circuits have embraced snap removal based on a literal reading of the forum defendant rule, while the 11th Circuit has rejected it based on snap removal conflicting with the express purpose of the forum defendant rule. See Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 699, 707 (2d Cir. 2019); Encompass Ins. Co. v. Stone Mansion Rest. Inc., 902 F.3d 147, 154 (3d Cir. 2018); but see Goodwin v. Reynolds, 757 F.3d 1216 (11th Cir. 2014). The United States Court of Appeals for the 4th Circuit (encompassing Maryland, Virginia, West Virginia, and North Carolina) has not yet addressed the propriety of snap removal.

The United States District Court for the District of Maryland has reached different outcomes in evaluating requests for remand to state court following snap removal. In Robertson v. Iuliano, the court took a literal reading of the forum defendant rule and denied a request for remand on the basis that the forum defendants had not been properly “joined and served.”  Case  No. CIV.A. RDB 10-1319, 2011 WL 453618, at *3 (D. Md. Feb. 4, 2011).  The same conclusion was also reached in Al-Ameri v. The Johns Hopkins Hosp. See Case No. CV GLR-15-1163, 2015 WL 13738588, at *2 (D. Md. June 24, 2015), “The Court is not persuaded that such an absurd result would occur in this matter by permitting removal.”  These decisions emphasize the literal meaning of the forum defendant rule and note that the Congressional intent behind the plain reading of the rule was “to protect non-forum defendants in diversity cases from being deprived of their right of removal by plaintiffs fraudulently joining a forum defendant whom plaintiffs had no intention of serving.”  Robertson, Case No.: CIV.A. RDB 10-1319, 2011 WL 453618, at *3 (D. Md. Feb. 4, 2011).

Other Maryland Federal District Court decisions have disagreed with snap removal, noting that “a literal reading of the statute, which effectively rewards docket monitoring and the ability to take swift legal action, privileges sophisticated litigants over those perhaps unfamiliar with the peculiarities of federal jurisdiction.”  Teamsters Loc. 677 Health Servs. & Ins. Plan v. Friedman, No. CV CCB-18-3868, 2019 WL 5423727, at *4 (D. Md. Oct. 23, 2019).  Recent decisions have taken this analysis a step further, noting that while the 4th Circuit has not expressly addressed the issue, but ultimately concludes that “[a] functional interpretation of § 1441(b)(2) better promotes its purpose of preventing gamesmanship.”  Sommer v. BMW of N. Am. LLC, No. CV RDB-20-3027, 2021 WL 1890651, at *3 (D. Md. May 11, 2021).  These decisions emphasize the position that the literal reading of the forum defendant rule yields absurd results given its express purpose.  See Teamsters Loc. 677, No. CV CCB-18-3868, 2019 WL 5423727, at *3 (D. Md. Oct. 23, 2019).

As a result, snap removal is still available to non-forum defendants in Maryland. Still, recent decisions in the United States District Court for the District of Maryland show a trend toward opposing snap removal. Ultimately, it will fall upon the United States Court of Appeals for the 4th Circuit to resolve the split and let both litigants and the Federal District Courts within the 4th Circuit know whether non-forum defendants can snap their fingers and remove to Federal Court all by themselves before forum defendants are “joined and served.”  See LIL JON, et al., Snap Yo Fingers (TVT Records 2006). Defendants seeking to mitigate plaintiffs’ inherent forum selection advantage should still consider snap removal in Maryland. Still, there is a distinct possibility of remand to state court given recent District trends.

For more information contact Stephen J. Marshall.

Maryland’s New “Move Over Law”

For many years Maryland’s “Move Over” law required vehicles approaching from the rear of an authorized vehicle stopped on a highway with the light flashing to change into an available lane not immediately adjacent to the vehicle. This is to be done assuming another lane in the same direction is available and the move can be made safely and without impeding other traffic. If a safe lane change is not feasible, the law requires vehicles to slow to a reasonable speed safe for existing weather, road, and vehicular or pedestrian traffic conditions. The new ‘Move Over” law now requires this action to be taken for ANY vehicle stopped on a highway.

Maryland Passes Legislation to Address Excessive Towing and Recovery Invoices for Police-Initiated Tows

Excessive invoices on police-initiated towing and recovery bills following motor vehicle accidents involving commercial vehicles have plagued the transportation industry, with the problem growing worse over the last several years. One of the reasons we have recently seen an increase in excessive invoices is an attempt by towing companies authorized by various law enforcement agencies to perform towing and recoveries following an accident. The towing companies have been attempting to charge for their services by the pound based on the vehicle’s weight and cargo, rather than by the hour. The per-pound billing practices have absolutely no relation to the nature, type, and amount of work involved in a particular towing and recovery and lead to excessive invoices for motor carriers. Compounding the problem, in many instances, is the towing companies’ refusal to release the vehicle and cargo unless and until the excessive invoices are paid. This leaves motor carriers, especially smaller motor carriers, with few options other than to pay the excessive invoice to secure the return of the vehicles and cargo and get the vehicle back on the road. The billing and business practices of companies performing police-initiated tows are not unique to Maryland. It is a problem facing the trucking industry nationwide. In response to the growing problem, some states have enacted laws utilizing a variety of ways to address the issues with some of the strategies, including setting maximum rates for police-initiated tows or requiring the return of vehicles after payment of a small deposit.

Due to the combined efforts of the Maryland Motor Truck Association and the Owner-Operator Independent Drivers Association, Maryland is the most recent state to pass legislation to combat the problem of excessive invoices for police-initiated towing and recoveries. This is despite strong opposition from the towing industry. Although Governor Hogan has not yet signed the legislation into law, under the new legislation, the following provisions will take effect on October 1, 2022:

  • While there is no rate-setting requirement by the Maryland State Police (MSP), all towing companies on the police-initiated towing lists are required to provide their maximum rates when they apply annually for the MSP tow program. The MSP must make those rates available to the public upon request.
  • The MSP must establish a complaint and disciplinary process where towers can be expelled from their list.
  • Motor carriers must be allowed to use the tower of their choice and bypass the MSP list as long as the motor carrier’s preferred tower can arrive at an accident scene in 30 minutes or less, except where the MSP believes allowing the use of the motor carrier’s preferred tower creates a safety risk.
  • If there is a dispute over the amount of an invoice and the towing company is in possession of the cargo:
    • If the cargo is owned by a person or entity other than the motor carrier involved, the tower must release the cargo to its owner or designee without any payment being made.
    • If the cargo is owned by the motor carrier, the motor carrier must provide insurance information demonstrating it has sufficient coverage to cover the cost of the cargo cleanup.  If it does not have sufficient coverage, the motor carrier will have to sign a letter of guarantee for payment of the cargo clean-up before the cargo is released.

These additional provisions take effect on October 1, 2023, under the new legislation:

Per pound billing will be banned in Maryland on police-initiated tows.

  • A tower must release a motor carrier’s equipment (truck and trailer) with payment of a 20% deposit of the amount on the invoice.

The General Assembly will also be forming a legislative workgroup to further study various other issues related to police-initiated tows, including the number of towing companies on the MSP tow list, potential parameters for establishing fair and reasonable per pound billing rates, the number and nature of complaints filed with the MSP on towing related issues, and the number and nature of complaints filed with the Maryland Insurance Administration regarding towing related issues.

This new legislation is a step in the right direction in addressing the issue of excessive invoicing and protecting motor carriers from unreasonable and egregious billing and business practices.

Written by counsel Renee Bowen.

Death Benefits in Delaware – Changes to Surviving Spouse’s Eligibility

In Delaware, if an employee dies from a work-related injury or illness, death benefits can be awarded under 19 Del. C. § 2330 to the surviving spouse, children, and other dependents in limited situations.

The compensation rate of death benefits can be between 66 2/3% and 80% of the employer’s average weekly wage, dependent upon the number of eligible beneficiaries.  The benefits are paid for a minimum period of 400 weeks.

Concerning surviving children, such compensation can continue beyond 400 weeks to children until they reach the age of 18, or alternatively, until they reach the age of 25 if they are enrolled as a full-time student.  There are additional considerations made for disabled children beyond 18.

Previously, the surviving spouse’s eligibility for death benefits would end upon remarriage.  When a spouse remarried, they would receive a two-year lump sum payment, but future benefits would be terminated.

Because of a recent amendment to section 2330, a surviving spouse’s eligibility for ongoing benefits has now been extended.  As a result of the amendment, a surviving spouse’s benefits continue until the death of the surviving spouse, regardless of if they remarry.  However, remarriage will reduce the compensation rate for a surviving spouse.  The compensation rate is reduced to 90% upon remarriage for the first ten years after the spouse remarries.  After ten years, the compensation rate is reduced to 75% of the original compensation rate for the surviving spouse’s life.

Contact Robert Hunt, Jr. for more information on this article.

Click it or Risk it. Buckle up, West Virginia

In tort trials, many jurisdictions are aligned in giving no evidentiary consequence to an injured party’s failure to wear a safety belt. Delaware, Maryland, and Virginia statutes all prohibit the introduction of such evidence to either argue for comparative negligence or reduce an at-fault party’s responsibility for damages.

West Virginia previously took a similar approach, generally excluding safety belt usage evidence from the jury’s consideration. Perhaps, as a consolatory nod to those legislators who suggested non-use of a safety belt must be given some weight, the old West Virginia law set a five percent medical damage reduction by default if the injured party stipulated that they had not used a safety belt. In exchange for the stipulation, the plaintiff could keep their failure to wear a safety belt a secret from the jury.

Suppose the plaintiff contested whether they were wearing their safety belt. In that case, defendants could get the matter in front of the factfinders by demonstrating to the court in a pretrial hearing that the injured party was not wearing a seatbelt and that such failure proximately caused damages. The jury could consider the issue, although the allowed medical damage reduction remained capped at just five percent.

The legislative dissenters likely took little comfort in the nominal acknowledgment. They could easily imagine an accident where the lack of a seatbelt contributed to much more than one-twentieth of the resulting injury. Defendants also challenged (unsuccessfully) the safety belt evidence exclusion as an unconstitutional restraint on the ability to present a full defense. Estep v. Ferrell Ford Lincoln-Mercury, 672 S.E.2d 345 (W. Va. 2008). The Estep court reminded litigants that statutes need not make perfect sense to pass constitutional review and that any action to remedy the perceived shortcomings of the law would need to be completed by the legislature.

In 2021, West Virginia representatives decided it was time to tune up the law. Now, W.Va. Code § 17C-15-49a (applying to motor vehicle accidents occurring on or after July 6, 2021) permits a jury to thoroughly consider an injured adult’s failure to wear a safety belt as evidence of exacerbation of the party’s damages. The allowable damage reduction is no longer capped at five percent and is no longer restricted to medical damages.

The burden of proving damages should be reduced rests with the defendant and must be supported by expert testimony. The court can bifurcate the trial proceedings into a liability and damage phase to “prevent prejudice or avoid confusion of the jury.” The court must further instruct the jury that the evidence may only be considered on the issue of damages and not for the purposes of finding comparative negligence on the part of the injured party. A child’s damages may not be reduced for not wearing a seatbelt – but in an interesting twist – the absence of a safety restraint on a child may be admissible to show the driver of the vehicle the child occupied was negligent.

The new West Virginia code also contains a provision forfeiting the damage reduction protection for a tortfeasor who causes an accident while in an impaired state or while fleeing law enforcement.

A 50 state survey indicates a slim majority of jurisdictions continue to prohibit the introduction of evidence that an injured party failed to utilize a safety belt. With West Virginia now moving further down the road less traveled, we will see if its Mid-Atlantic neighbors follow along.

For more information contact Stephen J. Marshall.

 

What about FMLA? The Interconnected Spheres of FMLA Obligations and Workers’ Compensation Benefits

In April 2021, the Federal Eleventh Circuit Court of Appeals (which includes Alabama, Florida, and Georgia) ruled payment of workers’ compensation benefits did not stop an employer’s obligation to offer an injured employee leave under FMLA (The Family and Medical Leave Act of 1993).

Vaguely familiar to many, FMLA is a United States labor law requiring covered employers to provide employees with job-protected and unpaid leave for qualified medical and family reasons. How FMLA interacts with the workers’ compensation system is similarly ambiguous to many.  Many employers with injured employees offer temporary light-duty work when an employee’s injuries prevent him/her/them from performing regular job duties.  The Department of Labor has long taken the position that injured, FMLA-eligible employees could elect FMLA leave instead of accepting a light-duty assignment.  However, in practice, many – both employers and employees alike – may not understand how the two benefits systems mesh together.

In Ramji v. Hospital Housekeeping Systems, LLC, 992 F.3d 1233 (11th Cir. 2021), the employee (Ramji) sustained a work-related knee injury and missed 11 days of work before returning in a light-duty position. The employer (HHS) commenced workers’ compensation coverage for the accident but did not treat Ramji’s time off as FMLA leave – nor did HHS advise the employee of her right to take FMLA leave.  After Ramji returned to regular duty without restrictions per her doctor but was still actively treating for her injuries, she then failed HHS’ “essential functions test” and was terminated. Ramji sued, alleging interference with FMLA’s leave requirements.

On appeal, the Eleventh Circuit reversed a grant of summary judgment for HHS and remanded the case for a jury trial.  In its decision, the court stated that handling workplace injuries consistent with workers’ compensation requirements does not absolve an employer of leave obligations under FMLA.  The court found that: (1) Ramji’s knee injury was a qualifying “serious health condition” sufficient to trigger her right to FMLA leave; (2) she gave HHS sufficient notice of her need for leave under FMLA; and (3) HHS failed to satisfy its obligations to provide Ramji with notice of her eligibility for FMLA leave.

Bottom line: HHS could not offer light-duty without also making Ramji aware of her alternative right to take FMLA leave. Had Ramji taken FMLA leave instead of returning to light duty, she may have been able to recover further from a medical standpoint, pass the essential functions test, and retain her job at HHS.

What does this mean for workers’ compensation claims in other jurisdictions? Employers should understand that FMLA and workers’ compensation leaves run simultaneously. Employers can (and should) provide injured workers a notice of FMLA rights (including the ability to take leave instead of accepting a light-duty assignment) before or at the time of offering light-duty assignments to him/her/them.  Of course, if an employee rejects a light-duty offer, that person may risk losing temporary total disability payments on the workers’ compensation claim; however, the employer does not necessarily have the right to terminate employment prior to expiration of the employee’s FMLA leave timeframe if an injured worker elects to use FMLA leave due to a work-related injury.

For more information contact John J. Handscomb.

How the FMCSA’s New Crash Preventability Program Affects Motor Carrier’s BASIC Status

Over the course of the last few years, the Federal Motor Carrier Safety Administration (“FMSCA”) has engaged in a Crash Preventability Determination Program (“the Program”).  It was developed and implemented by FMSCA at the behest of stakeholders in the motor carrier industry who desired changes to how FMSCA calculated the safety risk posed by motor carriers. That program has now been made permanent.

Historically, the FMSCA calculated and or expressed the risk posed by a particular motor carrier through its Safety Measurement System (“SMS”), which uses safety performance information in the Behavior Analysis and Safety Improvement Categories (“BASICs”) to identify motor carriers that, when compared to others, have a high crash frequency that requires federal monitoring and or safety intervention.  The Program allows motor carriers to petition FMSCA to review reported crashes for a non-preventability finding that, if accepted, would prevent that crash from inflating their BASIC risk rating.

Here is how it works.  Motor carriers may only submit certain types of crashes to FMSCA for a review under the Program.  This is what is known as a “Request for Data Review” (“RDRs”). A motor carrier’s RDR must involve a crash that occurred on or after August 1, 2019.  Moreover, only the following crash types should be submitted as an RDR: (1) struck in the rear; (2) wrong direction or illegal turns; (3) parked or legally stopped; (4) under the influence; (5) medical issues, falling asleep, or distracted driving; (6) cargo/equipment/debris or infrastructure failure; (7) animal strike; (8) suicide; and (9) rare or unusual.  An RDR will not be rejected simply because FMSCA views the crash as more properly suited to a different category than how the motor carrier identified it at the time of the RDR’s submission.  However, the FMSCA will close the RDR if it determines that no category is applicable or if the crash occurred before August 1, 2019.   All RDRs must be accompanied by the Police Accident Report (“PAR”) that was generated as a result of the crash.  If a PAR is not available for the crash, an RDR cannot be submitted.  Other evidence, such as photographs, video, or court documents, may be submitted with the RDR, but FMSCA does not require motor carriers to provide this additional information.

Upon receipt of an RDR, the FMSCA will make an eligibility determination.  If the RDR involves one of the nine categories listed above, then the FMSCA will proceed with its review, which will culminate with FMCSA assigning a “Not Preventable,” “Preventable,” or “Undecided” finding to the crash.  These findings have the following meanings:

Not Preventable:  If a driver, who exercises normal judgment and foresight, could not have foreseen the possibility of the accident that in fact occurred, and could not have avoided it by taking steps within his/her control.

Preventable:  If a driver, who exercises normal judgment and foresight, could have foreseen the possibility of the accident that in fact occurred, and avoided it by taking steps within his/her control, which would not have risked causing another kind of mishap.  This includes when the driver or commercial motor vehicle was legally prohibited from operating at the time of the crash, including if the post-crash inspection report shows there was an out-of-service violation.

Undecided:  If the documentation submitted did not allow for a conclusive decision by reviewers.  This includes cases that are closed because the carrier did not provide additional information as requested.

The goal of the RDR is to obtain a “Non-Preventable” finding.  If the RDR is successful in that regard, then FMSCA will not use that RDR’s crash when calculating the carrier’s BASIC measure and percentile, which is a favorable result for motor carriers.  Consequently, it is this firm’s opinion that that motor carriers should submit RDRs for all eligible crashes.  A review of the data collected by FMSCA during its consideration of the Program bears this out.  For instance, FMSCA assigned a “Non-Preventable” finding for 94% of all RDRs submitted during the Program’s demonstration period between 2017 and 2019.  Consequently, even though FMSCA will continue to list all crashes on SMS, motor carriers have been able to correct their risk rating by submitting RDRs.

If, however, the RDR receives a “Preventable” finding, motor carriers can rest assured that this result will not be held against them in court should litigation ensue from the crash.  According to a Notice published in the Federal Register, “a crash preventability determination does not assign fault or legal liability for the crash.”  See Federal Register, Vol. 85, No. 88 (May 6, 2020).  Relatedly, federal law renders these determinations not admissible in a civil action for damages.  See 49 U.S.C. 504(f).

(f) No part of a report of an accident occurring in operations of a motor carrier, motor carrier of migrant workers, or motor private carrier and required by the Secretary, and no part of a report of an investigation of the accident made by the Secretary, may be admitted into evidence or used in a civil action for damages related to a matter mentioned in the report or investigation.

Thus, there appears to be little downside to submitting an RDR, this is particularly so since FMSCA further advises that an “Undecided” finding does not mean that the crash was preventable.

In conclusion, FMSCA has permanently adopted a program by which motor carriers may petition the government to review crashes that affect their risk assignment.  The Program has basic eligibility and documentation requirements that most crashes will meet, and its review process has a quick turnaround of sixty days.  It is, by all accounts, a favorable process for motor carriers that should be utilized to prevent misleadingly negative safety classifications.

Listen Up! Maryland Court of Appeals Sets the Record Straight on Occupational Deafness

The Maryland Workers’ Compensation Act allows workers to recover benefits for hearing loss sustained on the job. However, the act also provides for a specific reduction in the measurement for hearing loss to account for natural age-related hearing loss. Specifically, there is a one-half of a decibel deduction for each year of the covered employee’s age over 50 at the time of the last exposure to industrial noise. While this principle seems somewhat straightforward, it can be a bit more complicated.

The Court of Appeals recently revisited this issue and other related issues in Montgomery County, Maryland v. Anthony G. Cochran and Andrew Bowen, 471 Md. 186 (2020). This case involved two Montgomery County firefighters, Anthony Cochran and Andrew Bowen. Both men retired from Montgomery County after serving over 30 years as firefighters. While working, both men were exposed to loud noises, which caused hearing loss and tinnitus.  Several years after retiring, Mr. Cochran and Mr. Bowen filed workers’ compensation claims, alleging work-related hearing loss. Mr. Bowen also alleged tinnitus. In support of their claims, both Mr. Cochran and Mr. Bowen presented audiograms performed several years after retirement and demonstrated binaural hearing loss. It should be noted that Mr. Cochran had two audiograms with different results. Both claims were ultimately found compensable, and the benefits were awarded to the claimants. However, Montgomery County took issue with how the statutory reduction in benefits was applied to account for natural age-related hearing loss and which audiogram should be controlling in those calculations. Montgomery County also took issue with the benefits awarded for tinnitus. As a result, Montgomery County initiated an appeal in each case, and both joined together at the appellate level.

The Court of Appeals addressed three issues regarding the calculation of benefits in hearing loss cases. The questions addressed were as follows: (1) Did the commission err by using an earlier-in-time audiogram that showed more hearing loss than the later-in-time audiogram? (2) Did the commission err in determining that the decibels deducted from the total average hearing loss should be calculated by counting the number of years between the date the firefighter turned fifty and the date each firefighter retired? (3) Did the commission err in awarding permanent partial disability benefits to Mr. Bowen for tinnitus as an “unscheduled” or “other cases” loss?

In addressing the first issue, the Court of Appeals found the commission did not err in calculating Mr. Cochran’s total average hearing loss by relying on the results of an audiogram that showed more hearing loss, as opposed to relying on a subsequent audiogram that showed less hearing loss. In support of this decision, the court found that the plain language of the statute does not expressly provide for any parameters as to which audiogram should be used when there are multiple audiogram results.

In addressing the second issue, the Court of Appeals found the commission did not err in calculating the deduction of decibels from the average hearing loss sustained by Mr. Cochran and Mr. Bowen by counting the number of years between each of the firefighter’s 50th birthdays and the dates they retired from service, as opposed to using the post-retirement audiogram as the controlling end date for the deductions. In support of this decision, the court again reviewed the plain language of the statute, which provides that one-half of a decibel of hearing loss is to be deducted for each year of the covered employee’s age over 50 at the time of the last exposure to industrial noise. The court found that the last exposure to industrial noise of Mr. Cochran and Mr. Bowen would have been the date of each firefighters’ respective retirements.

The final issue addressed by the court was whether the commission erred in awarding permanent partial disability benefits to Mr. Bowen for tinnitus as an “unscheduled” or “other cases” loss. As a threshold question and a matter of first impression, the court held that tinnitus should be considered an ordinary occupational disease instead of a part of occupational deafness. With that said, the court found that the commission erred in awarding Mr. Bowen compensation for tinnitus because he alleged it as part of occupational deafness and did not attempt to establish disablement for this condition prerequisite for compensability in an ordinary occupational disease. Occupational deafness does not require a disablement. However, the court went on to say that had Mr. Bowen established a disablement for his tinnitus; there would not have been an error in awarding permanent partial disability benefits for tinnitus as an “other cases” injury pursuant to Labor & Employment § 9-627(k).

There are four takeaways from this case. First, in a situation where there are multiple audiogram results, the statute does not provide any guidance on which audiogram can be used when calculating the claimant’s hearing loss. Second, the end date for the statutory reduction for natural age-related hearing loss is when the claimant was last exposed to industrial noise, not the date of the post-retirement audiogram. Third, tinnitus is considered an ordinary occupational disease and is not a part of occupational deafness. Because of this distinction, the claimant must allege a disablement to recover from tinnitus. Finally, if the claimant is successful in alleging a disablement as a result of tinnitus, this disease is awarded benefits under “other cases” for the purpose of calculating permanent partial disability benefits.