Friday, July 20, 2018

Maryland Court of Special Appeals Strikes Claimant’s Vocational Rehabilitation Expert, But Preserves Right to Jury Trial

Justin Stine v. Montgomery County, Maryland, No. 578, September Term 2017. Opinion by Nazarian, J.

Justin Stine (“Stine”), a volunteer emergency medical technician (“EMT”) for Montgomery County, injured his foot at work.  At the time of the injury, Stine was a university student studying nursing and had approximately two years left before he would earn his degree.  He worked part-time for a private ambulance company, Lifestar, during the school year.  He worked full-time in the summer.  Stine’s injury occurred while school was in session.  Stine filed a claim for lost wages and went before the Workers’ Compensation Commission to determine his average weekly wage.

At the Commission, Stine submitted paystubs for the fourteen weeks preceding the accident.  The paystubs averaged $64.65 per week.  Stine also submitted three additional paystubs from his full-time work the previous summer.  During the hearing, Stine testified as to his hourly wage as well as several raises he received since the date of the accident.  The Commission inquired about his summer earnings, but ultimately determined that Stine’s average weekly wage was $64.65.

Stine filed a petition for judicial review in the circuit court and requested a jury trial.  Stine also retained a vocational expert to opine as to what Stine’s salary would be with further experience and education.  On the first day of trial, Montgomery County moved to strike the testimony of Stine’s vocational expert, arguing that the expert’s testimony related to an inapplicable statute, and thus, was not relevant.  Montgomery County also moved to strike the jury demand contending that the average weekly wage was a legal question, and therefore, was not suitable for jury review.  The court granted both of Montgomery County’s motions.  Stine then appealed to the Court of Special Appeals.

The Court of Special Appeals determined the circuit court did not err in striking the vocational rehabilitation expert’s testimony.  The expert’s testimony pertained to a general average weekly wage statute, while there was a more appropriate statute that dealt specifically with EMTs.  The EMT statute provided a different analysis for average weekly wages. 

The Court of Special Appeals then turned to Montgomery County’s motion to strike the jury demand.  Here, the Court of Special Appeals emphasized Stine’s request for essentially, a new trial before a jury.  During that jury trial, he could utilize information other than the pay records from the fourteen weeks prior to the injury when determining average weekly wage. The Court held that Stine’s right to a new trial before a jury was not removed simply because his expert was stricken.  Stine was still entitled to a jury trial on the factual question of his average weekly wage.

-Ashley Bond, Associate Attorney


Friday, July 6, 2018

Governor Hogan Appoints New Maryland Workers’ Compensation Commissioner

Governor Larry Hogan recently appointed James R. Forrester to the Maryland Workers’ Compensation Commission. Commissioner Forrester, a graduate of Randolph-Macon College, earned his Master’s in Business Administration in 1995 from the University of Baltimore’s Merrick School of Business, and his Juris Doctor in 1998 from the University of Baltimore School of Law.

In 1999, he joined the Law Offices of Ileen M. Ticer as an Associate Claims Attorney, and thereafter, worked with Semmes Bowen & Semmes, P.C. in the Workers’ Compensation and Employers’ Liability practice groups. He was named a Principal in 2009.

Throughout his years in legal practice, Commissioner Forrester has concentrated in workers’ compensation law and has appeared before all levels of the judiciary in the State of Maryland. He served as President and Member of the Executive Board of the Baltimore Claims Association as well as the Co-Chair of the Workers’ Compensation Section of the Maryland Defense Counsel.

Commissioner Forrester will begin his term in July 2018.