Claimants’ Ability to Obtain a Permanent Partial Disability Award Affected by Prior Total Disability Retirement

Patrick Spevak v. Montgomery County, Maryland, No. 893, September Term 2020. Opinion by Beachley, J.

    Recently, the Court of Special Appeals held that when an employee who is subject to the provisions of Md. Code Ann., Lab. & Empl. § 9-610(a)(1) receives a service-connected total disability retirement from his or her employer, the LE § 9-610 offset applies to any permanent total or permanent partial workers’ compensation benefits the employee is awarded for injuries or diseases related to that same employment.

    The Claimant in that case, Patrick Spevak, was employed as a firefighter for Montgomery County.  While employed, he sustained a back injury.  This caused him to retire after being granted a service-connected total disability retirement.  Since his retirement, he received service-connected total disability retirement benefits amounting to approximately 70% of his income. 

    Subsequently, Claimant’s hearing deteriorated, causing him to file a workers’ compensation claim for his occupational hearing loss.  After a hearing on the matter, the Workers’ Compensation Commission found Claimant to have a 21% permanent partial disability due to his hearing loss.  The Commission, however, also found that those benefits were completely offset under LE § 9-610(a), due to his prior service-connected total disability award which exceeded the permanent partial disability benefits awarded by the Commission. 

    Claimant appealed the matter to the Circuit Court for Montgomery County.  Both parties moved for summary judgment, and, after a hearing, the Circuit Court found in favor of Montgomery County.  Claimant appealed the matter again, this time to the Court of Special Appeals.

    Md. Code Ann., LE § 9-610(a)(1) provides that if a statute, charter, ordinance, resolution, regulation, or policy, provides a benefit to a covered employee of a governmental unit or a quasi-public corporation that is subject to this title under LE § 9-201(2) of this title, payment of the benefit by the employers satisfies, to the extent of the payment, the liability of the employer and Subsequent Injury Fund for payment of similar benefits under this title. 

    Claimant argued that in order for the two types of benefits to be considered “similar”, they must result from the same injury.  Montgomery County argued that the two types of benefits were “similar” because they both resulted from work-related injuries.  Montgomery County further argued that it made no difference whether Claimant had one or multiple work-related conditions, as the 70% payment from the service-connected total disability encompassed all work-related injuries. 

    The Court of Special Appeals, in making their decision, determined that a service-connected total disability retirement and a permanent total disability award under workers’ compensation law arising from the same employment are “similar benefits” under LE § 9-610, as the benefits paid under the service-connected disability retirement and a workers’ compensation permanent total disability award are the same whether the total disability is traceable to one body part or multiple body parts.  Furthermore, because the service-connected total disability retirement was intended to compensate an employee for any and all work-related injuries, the allowance of a permanent partial disability award would act as a double recovery.  Thus, Claimant’s permanent partial disability benefits are subject to the offset.

    This case highlights the importance of looking for other work-related benefits which may be used to offset any Awards issued by the Maryland Workers’ Compensation Commission.  Keep in mind that this only applies when claimant is employed by a governmental entity or quasi-public corporation. 

-Ashley M. Bond, Associate Attorney

Courts are still figuring out how COVID-19 fits into the legal scheme in Maryland

 Estate of Madden v. Southwest Airlines, Co., Civil Action No. 1:21-cv-00672-SAG, 2021 U.S. Dist. LEXIS 117266 (D. Md. June 23, 2021)             

With the world still being in the throes of a global pandemic, the question has now turned to how courts are deciding cases that have been impacted by COVID-19. Recently, the United States District Court for Maryland decided that it would not make employers liable for alleged negligence because of a lack of safe COVID protocols.

In this case, the plaintiff, Ms. Madden, was a flight attendant for Southwest and was required to attend mandatory in-person training to remain compliant with the Federal Aviation Administration requirements. The training involved groups of at least ten flight attendants at a time and Ms. Madden was required to attend her training in Baltimore Washington International Airport at the height of COVID. Ms. Madden alleges that Southwest failed to implement reasonable health protocols to prevent the spread of COVID, and as a result of Southwest’s negligence, Ms. Madden was exposed to COVID and passed it on to her husband who also contracted COVID and passed away.

For there to be a negligence claim in Maryland, the plaintiff must successfully allege four elements: (1) a duty was owed by the defendant to the injured individual; (2) there was a breach to that duty; (3) there was an actual injury; and (4) that the injury was a direct result of the breach. The Court in its decision considered the first element of whether Southwest owed a duty to Plaintiff’s husband.

The Court also noted that there is a general rule in Maryland that there is no special duty owed for the actions of a third party. Even though there are exceptions to this rule, the Court held that none of the exceptions apply to this case. Therefore, the Court continued to determine whether or not there was a duty owed to the Plaintiff’s husband by the Plaintiff’s employer.

Ultimately the Court held that there was no duty owed to the Plaintiff’s husband even though the Court determined that the facts of the case indicated satisfied more factors in favor of there being a duty owed by Southwest to Mr. Madden. This is because the Court determined that there is no concrete evidence indicating that Southwest’s training was the reason why Mr. and Ms. Madden contracted COVID. There were too many other factors to consider, and the Plaintiff’s assurance is not enough to convince the Court that Southwest’s training was the sole reason Ms. Madden contracted COVID.

Therefore, despite it being foreseeable that the failure to implement health and safety protocols could lead to the exposure of COVID to employees and their families, the Court could not hold that Southwest owed a duty to its employees’ family members. It will be interesting to see if and how this will change as Courts delve into COVID and its impacts.

-Jocelyn Wang, Law Clerk

           

Congratulations to Associate Towanda Luckett on her Recent Win!

 

Congratulations to Associate Towanda Luckett on her Recent Win! Ms. Luckett represented a client in a motor vehicle tort in which the Plaintiff claimed personal injuries and property damage as a result of her client’s alleged negligence in a side swipe collision. The Plaintiff argued that he was traveling on a roadway in a residential district, had his right turn signal on and was making a right turn when his vehicle was struck on the front passenger side by Ms. Luckett’s client, who was passing in the right lane. During Ms. Luckett’s cross examination, Plaintiff testified that he was traveling in the left lane, closest to the double yellow lines when he attempted to make the right-hand turn. Based upon the client’s testimony that Plaintiff’s vehicle was stopped in the roadway, positioned to make a left turn, without a turn signal, and the photographic evidence presented, the Court ruled in favor of the Defense. The Court found that Ms. Luckett’s client had the right of way, was permitted to pass the Plaintiff’s vehicle on the right and did not contribute to the collision, rather that Plaintiff unlawfully and negligently attempted a right-hand turn from the left lane, barring him from recovering damages.

Governor Hogan Appoints New Judges to Maryland Court of Appeals, Anne Arundel County, Baltimore County, and Washington County

Governor Larry Hogan announced multiple judicial appointments during the months of August and September 2021 for the Maryland Court of Appeals, the Anne Arundel County Circuit Court, the Baltimore County Circuit Court, and the Washington County District Court.

Chief Judge Joseph M. Getty was appointed the Chief Judge of the Maryland Court of Appeals on September 11, 2021. Previous to this, Chief Judge Getty served as a Judge in the 3^rd Appellate Judicial Circuit which contained Allegany, Carroll, Frederick, Garrett, Howard, and Washington counties from June 27, 2016 to September 10, 2021. Chief Judge Getty earned his B.A. in American Studies from Washington College, his M.A. in American Civilization from George Washington University, and his J.D. from the University Of Maryland School Of Law.

Judge Steven B. Gould was appointed to the Court of Appeals for the 7^th Appellate Circuit, which contains Montgomery County on September 11, 2021. Judge Gould previously served as a Judge on the Court of Special Appeals for the 7^th Appellate Circuit from April 18, 2019 to September 11, 2021. Judge Gould earned his B.A. in economics from the University of Pennsylvania and his J.D. from Boston University School of Law.

Judge Michael Edward Malone was appointed to the Anne Arundel Circuit Court on August 12, 2021. Judge Malone previously served as a delegate for District 33 in Anne Arundel County since 2015. Judge Malone obtained his B.S. from West Virginia University and his J.D. from the University of Baltimore, School of Law.

Judge Wendy Anne Zerwitz Schenker Epstein was appointed to the Baltimore County Circuit Court on August 12, 2021. Judge Epstein previously served as a Family Law Magistrate at the Baltimore County Circuit Court since 2014. Judge Epstein earned her B.A. from Western Maryland College (now McDaniel College) and her J.D. from the University of Baltimore, School of Law.

Judge Victoria Jeanne Lobley was appointed to the Washington County District Court on August 12, 2021. Judge Lobley has been a solo practitioner at Lobley Law Office, LLC since 2015, specializing in criminal defense and family law matters. Judge Lobley earned her B.A. from the University of Maryland, College Park, her J.D. from the University of Baltimore, School of Law and her LL.M. in taxation from the Georgetown University Law Center.

Rollins, Smalkin, Richards and Mackie would like to extend their congratulations to all of the new Maryland judicial appointments.