Maryland Workers’ Compensation Regulations are Unambiguous with regard to Statute of Limitation

The highest court in Maryland, the Court of Appeals of Maryland, recently reversed a decision by the Maryland Workers’ Compensation Commission (“MD WCC”) finding that, as the regulations state, a claim is not considered filed until a paper copy is received by the MD WCC.

The MD WCC is making great strides in advancing the electronic filing system for workers’ compensation claims and a claimant is currently able to file his claim on line; however, regulation 14.09.02.02 states a “claim that is submitted electronically is not considered filed until the signed claims form, including the authorization for disclosure of health information, is received by the Commission.” COMAR 14.09.02.02.

In Hranicka v. Chesapeake Surgical Ltd., et al., 2015 Md. LEXIS 413 (2015), the employer filed an Employer’s First Report of Injury (“SF1”) on January 21, 2010, which was about two weeks after the injury.  Hranicka, the injured worker, filed an electronic claim on January 17, 2012, which would have been within the requisite two year statute of limitations (two years beginning from the date of the SF1). See Md. Code Ann., Lab. & Emp. § 9-709.  As required by the MD WCC regulations, a paper copy of the claims form was then filed with the MD WCC a day after the two year statute of limitations expired.  COMAR 14.09.02.02.

The MD WCC, giving deference to the injured worker, ruled that because the electronic filing was submitted timely, his claim was, thus, considered timely filed.  The Circuit Court of Baltimore City, on appeal from the MD WCC, agreed and also found for the claimant.  The employer sought review of the decision with the Maryland Court of Special Appeals.  In an unreported decision, the intermediate appellate court found in favor of the employer.

The claimant then sought review by the Court of Appeals of Maryland, which granted the petition for writ of certiorari.  The Court ruled that the MD WCC’s regulations were not ambiguous and, therefore, there was no deference owed to the claimant.  The Court stated that the regulations, written by the MD WCC, clearly state the claim is considered filed when the paper claim is received by the MD WCC.  Despite the advances in the electronic filing system and wide acceptance of electronic filing throughout Maryland’s judiciary, the claim was ruled to be filed beyond the statute of limitations because of the lack of timely paper filing. 

The Court made note that this ruling did not preclude the MD WCC from changing its regulations to accommodate a claimant in such a situation, but, as the regulations as they stand, they were quite clear on the filing process and when a claim is deemed “filed”.

In Hranicka, the filing of the SF1, by the employer, was essential.  The regulations require an SF1 to be filed, if an injured worker misses more than three days of work.  If the injured worker does not miss more than three days of work, and an SF1 is not filed, the statute will start on the date of injury.  It is key to coordinate the filing of the SF1 between the employer and the insurer to be sure it is properly and timely filed, causing the statute of limitations to start.  Additionally, every case should be reviewed for timeliness as a matter of course. 

Contributed by Alicyn Campbell

Court of Appeals Weighs In On Interpretation of Policy Limits

         About a year ago, we shared a post on the decision of the Court of Special Appeals in Connors v. Gov’t Emples. Ins. Co., 216 Md. App. 418, 88 A.3d 162 (2014).  Following that decision, the Connors, unhappy with the outcome, petitioned the Court of Appeals for review.  The Court granted certiorari and, in Connors v. Govt' Emples. Ins. Co., 442 Md. 466, 113 A.3d 595 (2015), recently considered the question: “[d]o the underinsured motorist provisions of GEICO’s insurance contract provide [the Connors] a limit of underinsured coverage of $300,000 each, subject to an aggregate payment… by GEICO not to exceed $300,000?”  Id. 

As you may recall, Linda Connors and her husband Robert were pedestrians who were struck by a vehicle.  The motorist who struck the Connors had insurance through Allstate with policy limits of $100,000.00 per person and $300,000.00 per accident. The Connors and Allstate eventually settled for the “per person” policy limit of $100,000.00 each.  The Connors were both “insureds” under a motor vehicle policy issued by GEICO, which provided uninsured and underinsured motorist coverage with policy limits of $300,000.00 per person and $300,000.00 per occurrence.  Following their settlement with Allstate, the Connors sought to recover additional damages from GEICO pursuant to the terms of their underinsured motorist policy. Specifically, they sought, based upon their insurance limits of $300,000.00 per person, to have a total of $400,000.00 in policy money still available to them: $200,000.00 for each person after subtracting, from the $300,000.00 limit, the amount already received. 

On appeal, the Connors argued that, based on the construction and comma usage in the policy, the “per person” liability limits are superior to the “per accident” policy limits, and thus $300,000.00 in coverage should be available to each person without an overall occurrence cap of $300,000.00. GEICO argued, and the Court eventually agreed, that the “per accident” limit incorporates the caps on “per person” recovery while still adhering to the “per accident cap.” In many surrounding jurisdictions, any ambiguities in insurance contracts are construed against the insurer as a matter of course. The Court of Appeals in this case declined to address or change that policy, despite the appellants’ request to do the same, and held that the appellants were capped at the “per accident” limit rather than “per person.”

The Connors also argued that the Court of Appeals should overturn the 177 year policy in Maryland that insurance policy ambiguities are not automatically construed against insurers. The policy of construing ambiguities against the insurer as a matter of course is the policy in neighboring jurisdictions. The Court of Appeals ultimately declined to rule definitively on this issue because the Connors’ only asked the Court to interpret their specific contract rather than asking, in their writ of certiorari, for a review of the current law.  However, in the court’s opinion, it was clearly cited that, under the current law, the Court will only construe an insurance policy against the insurer where parole evidence and other extrinsic evidence is unavailable to construe any ambiguities.

Ultimately, agreeing with the Court of Special Appeals, as well as the trial court below, the Court of Appeals found the policy in question to be unambiguous and ruled that the policy includes an aggregate recovery limit of the per occurrence amount of $300,000.00.

         The Connors ruling is important for insurers in the state of Maryland who write under/uninsured policies. Maryland has in the past, and for the time being, will continue to review ambiguities in insurance policies in their entirety, and will turn to extrinsic evidence to determine intent. This is inapposite to the policies of neighboring jurisdictions that construe ambiguities against the insurer as a matter of course. And the Court’s willingness to mention it could signal intent to change the law if the matter is appealed appropriately in another case.  Additionally, the case establishes explicit precedent finding that multiple claimants are not entitled to “per person” liability limits where the limits would exceed the “per accident” liability limits of a policy. 

Court Adopts Authentication Standard for Social Media Evidence

With the increasingly common use of various social media as a means of communication, more and more frequently Courts are faced with the question of whether the genuineness of these postings, text messages and chats is reliable enough to justify them being admitted into evidence, and to what extent they must be authenticated to be deemed admissible.

This spring, the Court of Appeals of Maryland revisited this issue in its review of three consolidated cases: Sublet v. State, 2015 Md. LEXIS 289 (2015), Harris v. State, 440 Md. 114, 99 A.3d 778, decision without published opinion (2014), and Monge-Martinez v. State, 440 Md. 114, 99 A.3d 778, decision without published opinion (2014). 

Problems with Social Media Authentication and Development of a Standard

Before the use of typed words sent via an electronic medium became so prolific, the courts relied on traditional means of authentication such as obtaining testimony from a witness with knowledge of how a document was made, comparing handwriting samples, looking for fingerprints or even, for telephone calls, voice identification.  But when the sender is an unseen person and the message is received electronically, many of these options for authentication disappear. 

The Court of Appeals first recognized this problem with authentication in Griffin v. State, 419 Md. 343, 19 A.3d 415 (2011), noting that the authentication of evidence derived from social networking can be problematic “because anyone can create a fictitious account and masquerade under another person's name or can gain access to another's account by obtaining the user's username and password[.]”Id. at 352, 19 A.3d 421.  In Griffin, the Court rejected a printout of a screen shot from MySpace, a social media website, because the investigator who printed the document did not have any personal knowledge about who owned the website or who actually created the profile in question.  Essentially, the witness was unable to prove that the page content was genuinely managed by the person he claimed it was managed by, or that she had posted the text within the screenshot.  In Griffin, the Court reiterated that authentication could come through asking the purported creator if she created the profile and the posting in question. Id  at 363, 19 A.3d 427.  The Court also suggested that investigators could “search the computer of the person who allegedly created the profile and posting and examine the computer's internet history and hard drive to determine whether that computer was used to originate the social networking profile and posting in question.” Id.  Alternatively, the investigator could “obtain information directly from the social networking website[,]” which would link together the profile and the entry to the person, or persons, who had created them. Id. at 364, 19 A.3d 428. 

Between 2011 when Griffin was decided and today, cases have arisen across the country where social media evidence has served as a crucial piece of proof in litigation.  In light of this trend and the instant actions, the Court chose to clarify their position and to set forth a more definitive standard for authentication. 

The standard ultimately adopted by the Court for use in these and future cases entails two steps.  In the first step, the judge determines if there is sufficient proof introduced so that a reasonable juror could find in favor of authenticity or identification.  If there is not, the information is not admitted.  If there is, the information will be admitted and then, as the next step, the jury will be instructed that they must make a determination as to whether the evidence is what its proponent claims.  At the same time, the opposing party is free to challenge the evidence in ways that go to its weight, such as arguing the interpretation, reliability or lack of importance of the information.

Applying the New Standard

In each, Sublet, Harris, and Monge-Martinez, the admission of different electronically stored social networking evidence was sought. 

In Sublet, at issue was the admission of Facebook message posts where the witness alleged to have posted not only denied posting the messages in question, but testified that she had shared her password with others who have in the past and could ostensibly, again, use her password to obtain account access.  Additionally, her testimony was not refuted by an expert.  Under the new standard, the content in question was not found to be reliable and was not admitted. 

In Harris, messages were exchanged on Twitter between two parties.  At trial, a police officer testified as an expert witness.  He provided independent verification of the identity of the holder of a Twitter account by using photos, tracking the account to a specific mobile phone, and via the substance of messages exchanged, which indicated direct knowledge of a specific situation that involved only a small group of individuals. The Court held that the trial court did not err in admitting the “direct messages” and “tweets” into evidence.

In Monge-Martinez, private one-on-one communications were sent through Facebook by the defendant apologizing to the victim for stabbing her.  The defendant argued that because his profile did not include identifying information, the messages could not be authenticated.  The Court disagreed, determining that the circumstantial evidence --- namely, that the victim could attest that Monge-Martinez had previously written message to her using that account, that the date and time stamps indicate the messages were sent soon after the stabbing, and that all messages were in Spanish and alluded to the stabbing – was enough to allow the messages into evidence. 

Conclusion

Though the cases examined by the Court of Appeals are all criminal in nature, the decision has sweeping implications for both criminal and civil litigation.  With a clearer and relatively low standard set forth for the admissibility of social media evidence, parties on both sides are now far more likely to seek to have such evidence admitted at trial, with the jury left to determine how much weight such information should hold.  As a result, thorough advisements to our clients about posting online and comprehensive searches for a social media presence of witnesses, plaintiffs and our defendant clients becomes even more important in the preparation of a case for litigation.  

Contributed by Lauren A. Seldomridge