Workers’ Compensation Settlements and Claimants’ Child Support Obligations

/in /by Workers’ Compensation Settlements and Claimants’ Child Support Obligations

R.K. Grounds Care v. Wilson, 235 Md.App. 20 (2017)

What obligations child support statutes place on the employer and insurer is an evolving area of the law, but R.K. Grounds Care v. Wilson offers some protection.

In R. K. Grounds Care, the parties reached a settlement of the entire workers’ compensation claim, which was approved by the Workers’ Compensation Commission.  Eleven days after the approval of the settlement, the Carroll County Bureau of Support Enforcement filed a Notice of Child Support Lien in the Circuit Court and notified the employer and insurer of the lien that same day. The sum of the child support lien was more than the entirety of the workers’ compensation settlement. The employer and insurer timely paid the attorney’s fees and medical evaluation fee from the settlement to the claimant’s attorney and expert but held the entirety of the claimant’s funds. Once the employer and insurer were served with writs of garnishment from the Circuit Court, they issued payment (the entire amount of the claimant’s funds) to pay the child support lien. The claimant also received a copy of these writs of garnishment but did not file with the Circuit Court to contest the garnishment, instead opting to wait three months to file Issues with the commission for non-payment of the settlement.

After a hearing, the commission ordered that only 75% of the claimant’s funds should have been paid to satisfy the lien and if child support does not have any of those funds still in escrow, the employer and insurer were tasked with paying additional funds to the claimant so he would receive 25% of the total amount he was due. On appeal to the Circuit Court for Carroll County, the judgment was changed such that child support should only receive 25% of the total amount due and the employer and insurer should pay the 75% of the total funds to the claimant, even though the monies were already paid to satisfy his child support obligation.

The Court of Special Appeals ultimately determined the commission did not have jurisdiction to decide garnishment matters or child support liens, and therefore the decisions below must be overturned and remanded.  However, in reaching that decision, they did review the relevant statutes, discussed later in this article.  The court confirmed child support may be withheld from workers’ compensation benefits once a notice of lien for that child support is filed with the Circuit Court. The child support agency may then garnish property of the claimant. The parties disagreed as to whether they may garnish all, part, or none of the settlement and the court offered no guidance as to which interpretation was correct, stating simply “these arguments are well-thought-out and present difficult legal questions.”  Sidestepping that legal question, they explained that the claimant needed to contest the garnishment in the Circuit Court (the court with jurisdiction over garnishments), not at the commission. Having failed to contest the garnishment in the appropriate court within the appropriate time, the claimant could not put the employer and insurer in a position where they had already complied with a valid, uncontested order from the Circuit Court and would need to pay additional funds to the claimant.

Overall, R.K. Grounds Care helps to protect the employer and insurer from inconsistent court orders and places the burden on the claimant to contest any garnishments before the funds are applied to child support liens.

The Statutes at Play

Under Labor and & Employment Article § 9-732, money payable in connection with a workers’ compensation claim “may not be assigned, charged, or taken in attachment,” except as provided under Title 10 of the Family Law Articles. Under Family Law § 10-140 and § 10-141, unpaid child support (CS) due under an order constitutes a lien on all real and personal property of the claimant parent owing the support.

In order to enforce a CS lien, the Maryland Child Support Administration (CSA) files a notice of lien with the relevant Circuit Court.  Upon filing, the CS lien has the “full force and effect of a judgment lien.”  The OCSE must also file for garnishment per Maryland Rule § 2-645.  Upon filing, the Circuit Court clerk will issue a writ of garnishment. The writ of garnishment must be served upon the employer/insurer (garnishee), and a copy must be sent to the claimant at his/her last known address.

Under § 11-504 of the Courts and Judicial Proceedings Article, there is certain property exempt from the execution of a judgment.  In order to claim the exemption that only 25% of his/her net recovery should be attached, the claimant debtor must file a motion to release property within 30 days after service of the writ of garnishment.

The bottom line: if the claimant seeks – and is granted – the exemption at the Circuit Court, then the maximum amount that can be garnished from a workers’ compensation settlement is 25% of what the claimant nets.  If he/she does not seek/is not granted the exemption, then potentially all of the settlement monies payable to the claimant could go to satisfaction of the lien.

How Do the Employer/Insurer Comply? Settlement Considerations

When negotiating settlement of a workers’ compensation claim wherein the claimant has a CS support lien, consider the following:

  1. Call the local CSA, which is on a county-by-county basis, to get the updated lien information. See: http://dhs.maryland.gov/local-offices for more information.
  2. Remember: the lien is subject to the net recovery by the claimant from settlement. Therefore, you will deduct attorneys’ fees and costs as well as fees for IMEs/medical experts before assessing what will be subject to the lien.
  3. If the claimant has not filed anything with the relevant Circuit Court to exempt the funds from the workers’ compensation claim, then:
    1. If the claimant’s net recovery from the settlement is less than the lien, then the settlement monies are sent in partial satisfaction of the lien and the claimant recovers nothing.
    2. If the claimant’s net recovery from the settlement is more than the lien, then the lien is satisfied first, and the claimant is given the remainder of the settlement funds.
  4. If the claimant has the exemption from the Circuit Court, then here is the calculation.
    1. Settlement amount minus attorney fees and costs = net amount to the claimant.
    2. Net amount to claimant x 0.25 = total max allowed to pay toward CS lien.
    3. Net amount to claimant minus CS lien (up to max noted above) = amount payable to the claimant.
      1. Example
        1. At time of settlement approval, claimant’s CS lien is $1,555.82.
        2. Settlement is $5,000.00. Attorney fees and costs are $1,100.00. IME fee is $750.00.
        3. $5,000.00 – $1,100.00 – $750.00 = $3,150.00. This is the net amount to the claimant.
        4. $3,150.00 x 0.25 = $787.50. This is the maximum amount payable toward the CS lien.
        5. $3,150.00 – $787.50 (payable to OCSE for CS lien) = $2,362.50 to the claimant.

Additional Settlement Tips

The court in R.K. Grounds protected the employer and insurer from overpayment of a settlement by noting the affirmative duty of the claimant to contest the lien, but they need to be quick about it. The statutes allow a savvy claimant to recover 75% of their settlement funds simply by contesting the full garnishment in the Circuit Court.

Remember to include/look for waivers of rights against the employer/insurer with child support issues in settlement agreements.

Timing- if your notice of lien is new and/or unexpected, then hold everything for full 30 days from garnishment

For more information about this article, please contact April Kerns at (410) 230-2975 or (akerns@fandpnet.com) or Natalie Johnson at (410) 230-3614 or (njohnson@fandpnet.com).

Apportionment, Nature and Extent, and PPD Awards

/in /by Apportionment, Nature and Extent, and PPD Awards

James M. Lyles, Jr. v. Howard University Hospital and Sedgwick CMS, 200 A.3d 1244 (2019)

This case was litigated up to the D.C. Court of Appeals and is now on its way back down to the trial judge.  It is certain to be going back up to the D.C. Court of Appeals in the near future.

Claimant injured his right shoulder in 2013.   He had a prior right shoulder injury in 2011 while working for a different employer.  Claimant did file for workers’ compensation benefits for the 2011 injury and that claim settled.  For the 2013 injury, a hearing was held on nature and extent of the injury to the right shoulder.  The employer made three arguments:

  1. The shoulder is not part of the upper extremity for impairment purposes. This was the law before 2017 when the CRB decided that the shoulder was part of the arm;
  2. The ALJ did not explain the connection between the claimant’s physical impairment and the extent of the claimant’s disability and the claimant’s industrial capacity;
  3. Employer was entitled to apportionment for the claimant’s pre-existing condition based upon the statute and subsequent amendments. Alternatively, the claimants are limited to 104 weeks of compensation.

The ALJ disagreed with the employer and held that the claimant sustained a 37% impairment to the right upper extremity for the right shoulder injury, and the employer was responsible for this amount.  On appeal, the CRB also disagreed with the employer and affirmed the Compensation Order.  The employer then appealed to the D.C. Court of Appeals, who reversed and remanded the case.  In a January 31, 2019 decision, the Court of Appeals held as follows:

  1. As a matter of law, the shoulder is not part of the upper extremity for impairment purposes. The claimant can get an impairment award for the effects the shoulder injury has on the upper extremity but cannot get an impairment award because of the shoulder.
  2. The ALJ must explain the likely consequences, if any, that the physical impairment has on wage-earning capacity.  An award for impairment is meant to compensate for the effect the injury has on the claimant’s wage-earning capacity; it is not meant to compensate the claimant for the injury or for pain and suffering.  Unfortunately, the Court of Appeals also stated that the claimant does not need to present any evidence about the actual or likely effect of the loss on wages or employment prospects.
  3. Regarding apportionment, the matter was remanded to the CRB to analyze how repeal of the Special Fund affected the remainder of the statute pertaining to apportionment.

On remand, the CRB issued its decision on May 2, 2019.  After analyzing the statutes pertaining to apportionment and the Special Fund and considering that the city council’s objective was to contain workers’ compensation costs so that D.C. was more competitive with Maryland and Virginia, the CRB held that there is now apportionment in D.C. for PPD only.  It does not apply to TTD or TPD.  Therefore, in D.C., there is now “apportionment so that a subsequent employer’s liability for a PPD award is the amount by which the subsequent injury increased a claimant’s PPD.”  Lyles v. Howard University Hospital et al., CRB No. 17-036 (R), AHD No. 14-001A, OWC No. 705796 (May 2, 2019).

The practical effects are as follows:

  1. Until held otherwise, there is apportionment in D.C. for PPD claims. Obtaining information about a claimant’s prior injuries and/or conditions is necessary to try and reduce a PPD award.  Information about a claimant’s prior condition should be provided to IME doctors when obtaining an impairment rating.
  2. The shoulder is not part of the arm. While a claimant cannot get an award for impairment to the shoulder, a claimant can get (1) an award for wage loss, if any, for the shoulder injury; and (2) PPD to the upper extremity for any effects on the upper extremity.  Taking claimant’s deposition to determine the effects of a shoulder injury on the arm will also assist in determining PPD exposure.  IME doctors should provide specifics on any effects that the shoulder injury has had on the arm, including range of motion and grip strength.
  3. Because an impairment award is meant to compensate a claimant for the effect on wage-earning capacity, presenting evidence about a claimant’s hours, wage history, overtime work, as well as any extra-curricular activities (such as exercising, house maintenance, hobbies, etc.) can reduce an impairment award. Establishing that a claimant’s wage-earning capacity is not affected by an injury will be helpful to keep the impairment award low.

For more information about this article, please contact Naureen R. Weissman at 410.230.3579 or nweissman@fandpnet.com.

 

Delaware Case Law Update: Thirty Day Rule Offer

/in /by Delaware Case Law Update: Thirty Day Rule Offer

The Industrial Accident Board employs what is commonly referred to as a Thirty Day Rule.  In sum, the Thirty Day Rule requires all investigations be completed, witnesses identified, discovery exchanged, and settlement offer made thirty or more days from the hearing.  If the employer makes a settlement offer outside of the Thirty Day Rule that is equal or above the Board’s award, the claimant is not entitled to an attorney’s fee.

“The purposes of this rule are: (1) to encourage early settlement by employers before claimants’ attorneys must engage in substantial pre-hearing preparation, and (2) to prevent abuses by claimants’ attorneys, who do not accept valid settlement offers, and thereby force unnecessary Industrial Accident Board hearings.”[1]

In Teresa Holben v. Pepsi Bottling Ventures, the parties appeared before the Board on a dispute regarding the compensation rate for temporary partial disability benefits (“TPD”).  The Board agreed with the employer and awarded TPD based upon the average wage of the employer’s Labor Market Survey (“LMS”).  The employer made a Thirty Day Rule Offer for TPD that included a higher compensation rate than ultimately was awarded by the Board.  As such, the Board denied the claimant an attorney’s fee.  The Board ordered the employer to reimburse the claimant’s medical witness’ fees, as there was an award pursuant to 19 Del. C. § 2322(e).[2]

The claimant appealed the Board’s calculation of TPD and the decision not to award an attorney’s fee to the Superior Court.  The Superior Court affirmed the Board’s ruling on TPD but reversed and remanded the issue of an attorney’s fee to the Board.  The Superior Court concluded that the Thirty Day Rule Offer did not include an offer to pay medical witness’ fees, the claimant succeeded on the “issue” of recovering such fees, so an award of attorney’s fees was mandatory.[3]

The employer argued the triggering factor for attorney’s fees is the award of compensation; i.e. TPD.  The employer also noted the claimant had not incurred an expert’s fee until after the Thirty Day Rule Offer was sent and she had an opportunity to cancel her expert’s deposition without incurring a cancellation fee.

The Superior Court acknowledged “[t]here is reason to question, at some level, the right to recovery attorney’s fees as a cost simply because the claimant recovered a separate cost.”[4]  However, the Superior Court held the statute required an award of attorney’s fees.  The Superior Court also found the claimant was entitled to consider the settlement offer for a full 30 days and rejected the employer’s second argument.

The Superior Court’s Order is currently on appeal to the Delaware Supreme Court and raised concern in the Workers’ Compensation Bar.  The common practice of many attorneys in Delaware making a Thirty Day Rule Offer is not to include a medical witness’ fee.  However, if the claimant incurs a cancellation fee in conjunction with accepting the employer’s offer, those fees are generally reimbursed by the employer.  The Superior Court’s Order requires settlement offers to now include an offer for medical witness’ fees in order to avoid an award of attorney’s fees.  Pending a reversal of this Order, it is recommended that settlement offers now include an offer to pay the claimant’s expert’s cancellation fees incurred in conjunction with acceptance of a settlement offer.

 _______________________

For more information about this article, please contact Robert S. Hunt, Jr. at 302.594.9780 or rhunt@fandpnet.com.

[1] State v. Drews, 491 A.2d 1136, 1139 (Del. 1985).
[2] (e) The fees of medical witnesses testifying at hearings before the Industrial Accident Board on behalf of an injured employee shall be taxed as a cost to the employer or the employer’s insurance carrier in the event the injured employee receives an award.
[3] Teresa Holben v. Pepsi Bottling Ventures, 2018 WL 6603792, at *1 (Del. Super. Ct. Dec. 13, 2018).
[4] Id at *9.

Comp College With F&P

/in /by Comp College With F&P

Franklin & Prokopik recently launched “Comp College,” a customizable program that assists organizations in staying up to date on the latest in the workers’ compensation world.    Comp College offers the opportunity to build your own class schedule that meets the educational needs of employees.  Companies select criteria such as jurisdiction of interest, topics, time of day, and method of class delivery.  We are also able to offer HRCI and/or SHRM credits.  Ready to enroll?  Contact jshaikun@fandpnet.com to learn more about our course options.

A Limitation of the Commission’s Revisory Powers Explained: Montgomery County v. Gang, 239 Md. App. 321

/in /by A Limitation of the Commission’s Revisory Powers Explained: Montgomery County v. Gang, 239 Md. App. 321

A recent case from the Court of Special Appeals confirms the Maryland Workers’ Compensation Commission (“Commission”) may not retroactively adjust the rate of compensation of an award previously paid. Mr. Gang (“Claimant”), a public safety officer, received an award of permanent partial disability benefits in 2012 based on an incorrect rate of pay, given his status as a “public safety officer.”  In 2016, Claimant attempted to remedy the rate of pay by filing a Request for Document Correction with the Commission.  He did so, without consent from the employer/insurer. The Commission, thereafter, issued an amended award retroactively increasing the rate of pay.  In response, the employer/insurer requested a rehearing. Ultimately, the Commission granted the rehearing, but affirmed its prior decision to allow the increase under the “continuing jurisdiction” provision of the Act: L.E. §736.

The employer/insurer appealed the matter to the Circuit Court for Montgomery County where argument focused on the interpretation of the Commission’s revisory powers under L.E. §736.  to “readjust for future application the rate of compensation.”  The court affirmed the decision of the Commission and the employer/insurer appealed the decision to the Court of Special Appeals (“COSA”).

The Court of Special Appeals reversed the Circuit Court’s decision, highlighting that the Commission’s change to the rate of compensation was not based on statutory considerations such as aggravation or diminution.  Instead, it was an adjustment of an award previously paid and, as such, beyond the Commission’s revisory powers.  Allowing the same, in addition to improperly extending the statute, would also serve to impermissibly extend the five-year statute of limitations, on re-openings.

This decision makes clear if there is an error in an award, the request for correction must be done so within a reasonable time period.  The Commission’s revisory powers are limited and not all encompassing.  This decision is also a reminder that a Request for Document Correction is only to be used when the “correction” is agreed upon by all parties.

For more information about this article, please contact April Kerns at 410.230.2975 or akerns@fandpnet.com.

Statutory Employers: What Could Go Wrong? Charlie Jeffreys v. The Uninsured Employer’s Fund, et al.

/in /by Statutory Employers: What Could Go Wrong? Charlie Jeffreys v. The Uninsured Employer’s Fund, et al.

A historic building in Virginia is to be renovated.  A historical society in Virginia, directed by someone living in California, operating as an “auxiliary” of a church in Virginia, hires an unlicensed contractor who then hires a second worker.  What could possibly go wrong?  Here is what went wrong: a worker is injured on the job then files workers’ compensation claims against the director, the historical society, and the church — none of whom have insurance.  The Supreme Court of Virginia (SCVA) addressed the issue of statutory employment and one such scenario, in the case of Charlie Jeffreys v. The Uninsured Employer’s Fund. (____ S.E.2d ____) 2019 WL 620314.

The facts, summarized: The Harvey School Historical Society (“the Historical Society”) was founded and directed by Ms. Annie Mosby, a California resident.  The Historical Society’s mission was to “purchase, restore, preserve, and maintain” the Harvey Colored School in Pittsylvania County, Virginia.  The Mount Lebanon Missionary Baptist Church (“the Church”) allowed the Historical Society to meet in the Church, but provided no financial support nor exercised any control over the Historical Society. Mosby hired Mr. William Johnson, an unlicensed contractor, to renovate the school.  Mosby was briefly on site at the beginning of the project but did not exercise any control over Johnson’s activities. Johnson hired Mr. Charlie Jeffreys with Mosby’s permission, but Johnson was exclusively the manager of Jeffreys.  Jeffreys was injured on the job site and filed a workers’ compensation claim against: (1) Mosby, (2) the Church, and (3) the Historical Society – but not Johnson.  NONE of the three defendants had workers’ compensation insurance so the Uninsured Employers’ Fund was made a party.  Jeffreys contended each defendant was his statutory employer per Code §65.2-302 because he had been performing work within their trade, business, or occupation.

After some back and forth between the Commission and the Court of Appeals, none of the defendants were found to be Jeffreys’s direct employer or statutory employer. Jeffreys appealed the issue of statutory employment to the SCVA, which, upon analyzing the statutory employment provision of the Code, affirmed the Court of Appeals’ decision.

The statutory employment relationship is addressed in Code §65.2-302. There are three relevant sections, summarized below:

A). When any person (“owner”) undertakes to perform work which is a part of his trade, business or occupation and contracts with any other person (“subcontractor”), for performance of work normally undertaken by the owner, the owner shall be liable for workers’ compensation benefits for the subcontractor. Section A is also known as the “normal-work test,” which asks the question of whether the activity of the subcontractor is normally done by employees of the owner rather than a subcontractor or independent contractor. The example given by the SCVA in this regard was a roofing company hiring an independent contractor to fix a roof. In this scenario, the roofing company is the statutory employer of the independent contractor.

B). When any person (“contractor”) contracts to perform work for another which is not part of the trade, business or occupation of the other person and contracts with any other person (“subcontractor”) for execution of that work, then the contractor shall be liable for workers’ compensation benefits for the subcontractor. Section B is also known as the “subcontracted-fraction test,” meaning the original business is not in the same “trade, business or occupation” as the hired contractor/subcontractor. The example given by the Court in this scenario is a bank contracting with a general contractor to build a home, and the general contractor relies on subcontractors (such as carpenters, masons, plumbers, etc.) to complete the task.  The general contractor, not the banker, is the statutory employer of the subcontractors’ employees.

C.) When a subcontractor in turn contracts with another (sub-)subcontractor for part or all of the work undertaken by the first subcontractor, then the owner or contractor shall be liable for workers’ compensation benefits in the same way imposed in sections A and B.

This case focused primarily on subsection A of Code §65.2-302. In analyzing statutory employment under this section, one must identify the nature of the owner/contractor and whether they are a governmental/public utility entity or a private entity.  The SCVA writes that a “private entity, unlike a governmental entity or a public utility, has broad discretion to choose its activities and, thus, to define its own unique nature […] whereas a private business entity is essentially self-defining in terms of its trade, business, or occupation, a public utility has duties, obligations, and responsibilities imposed upon it by statute, regulation, or other means.”  This may then make the assessment regarding what the trade, business, or occupation of a private entity more difficult than that of a governmental entity or a public utility.

Here, the SCVA affirmed the Court of Appeals’ findings that, though the Historical Society’s purpose was to restore the school, the members only raised funds and awareness of the project and encouraged community support.  None of the members intended to actually move, construct, or restore anything.  It was not part of the Historical Society’s “trade, business or occupation” per Code §65.2-302.  Therefore, Jeffreys could not prove that the Church, Mosby, and the Historical Society were in the “trade, business, or occupation” of construction.

Takeaway: when looking to establish whether there is a potential statutory employer per Code §65.2-302, you must first assess whether the original contracting entity is public or private, and then whether it is engaging in its usual “trade, business or occupation.”

 

For more information about this article, please contact Jennifer Helsel at 571.612.5932 or jhelsel@fandpnet.com.

Workers’ Comp Team Spotlight – R. Cameron Legg and Lee Lawler

/in /by Workers’ Comp Team Spotlight – R. Cameron Legg and Lee Lawler

Cameron Legg joined Franklin & Prokopik as an associate attorney in March of 2017. He concentrates his practice in Maryland workers’ compensation defense.

Cameron is originally from the Baltimore area and is a graduate of the George Washington Carver Center for Arts and Technology. While in high school, Cameron showed a talent for acting and starred in some commercials. He appeared in a commercial for college and an Army training video.

Cameron attended college at Towson University, graduating in 2005. He majored in Business, with plans to attend law school. While at Towson, Cameron played golf as a hobby and experienced one of his greatest accomplishments in the sport – his first and only hole-in-one while playing at Pine Ridge Golf Course.

In 2007 Cameron began law school at the University of Baltimore School of Law. While in law school, Cameron wrote for the Intellectual Property Journal and was on the International Law Moot Court Team. He was also very involved in the sports activities of the school. He won the school’s golf tournament three years in a row, his flag football team won the school’s flag football tournament two years in a row, and he played softball. Cameron graduated in 2010, magna cum laude.

From 2010-2011, Cameron clerked for the Honorable Stephen Waldron in the Circuit Court for Harford County. After his clerkship, he joined the State’s Attorney’s Office in Harford County where he worked for five years. While employed with the State’s Attorney’s Office, Cameron successfully prosecuted countless misdemeanors and felonies ranging from simple drug possession to homicide.  He drafted a bill, that ultimately became a law in Maryland, creating the crime of tampering with evidence.

Cameron brings the same intensity he possessed as a prosecutor to his handling of workers’ compensation matters.  He is very detail oriented and an excellent legal researcher, which allows him to identify nuanced legal defenses for his claims and deliver results to clients.

Outside the office, Cameron enjoys spending time with his wife, two sons, and daughter. Although he spends most of his free time with his family, Cameron still enjoys an occasional round of golf and playing softball.

Lee F. Lawler joined Franklin & Prokopik as a paralegal in March of 2018.  His work is focused in the area of workers’ compensation defense.

Lee attended Towson University, where he majored in marketing and was the starting pitcher for Towson’s baseball team.  Lee had the opportunity to travel all over the country for his games, which he enjoyed thoroughly, while maintaining a full-time course load for his major.

After graduating in 2016, Lee spent time in Thailand for a post-graduate trip before returning to Maryland to begin his professional career.

Prior to joining F&P, Lee worked as a mortgage lender for Corridor Mortgage Group.  Though he enjoyed the position, he felt that due to rising mortgage rates and the decline in the housing market that pursuing a career in the legal field would be a better fit.

Lee has quickly proven to be an asset to the firm. He demonstrates strong analytical skills and enjoys problem solving, bringing these talents to bear when preparing his cases.

In his spare time, Lee plays softball (including for the F&P team) and other recreational sports and also enjoys working out.  Lee has plans to attend law school in the coming year so we may see him as an attorney in the future!

Lynn Fitzpatrick Receives Workers’ Comp Honor

/in /by Lynn Fitzpatrick Receives Workers’ Comp Honor

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/.

Welcoming New Commissioners

/in /by Welcoming New Commissioners

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: Special Errand Exception Recap

/in /by Calvo v. Montgomery County: Special Errand Exception Recap

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:

  1. 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.

  1. 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.

  1. 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 akerns@fandpnet.com.