Friday, September 30, 2022

Maryland Court of Appeals Prevents an Injured Firefighter from Double Dipping

Spevak v. Montgomery Cnty., 2022 Md. LEXIS 323.

        Recently, the Maryland Court of Appeals issued an unreported opinion that clarified the standard necessary to apply the offset provision contained in Md. Code Ann., Lab. & Empl. § 9-610.  The offset provision was designed to preclude duplicative recovery for the same injury, essentially preventing double-dipping into the same pot of comparable benefits.  This provision does not however hinder a claimant from receiving workers’ compensation benefits that are owed.  Instead, it is a means of regulating the terms of compensation for injury.

        The case before the Court of Appeals involved a firefighter who, after serving nearly three decades, went into retirement due to a service-related back injury.  Upon his retirement, Mr. Spevak began collecting $1,859.07 per week in service-connected total disability retirement benefits.  Nine years into retirement, Mr. Spevak suffered hearing loss related to his employment from exposure to loud noises, such as fire engines, sirens, and alarms.  Due to this hearing loss, Mr. Spevak filed an additional workers’ compensation claim to which the County objected.  The County argued that Mr. Spevak’s compensation for his hearing loss should be offset because he was already receiving service-connected total disability retirement benefits due to his back injury, which compensated him for wage loss. The County further noted that a failure to apply the offset would result in duplicative recovery for the same loss and Mr. Spevak would collect more than the maximum compensation available. Such compensation would be contrary to the legislative intent and workers’ compensation law.  Mr. Spevak countered arguing that prior case law identifies a “same injury” test, and if applied, compensation for hearing loss should not be offset because the back injury arose nine years prior to the occupational hearing loss. If the “same injury” test would not be satisfied, then Mr. Spevak’s compensation would not be subject to any offset.  

        The sole issue, in this case, was whether Mr. Spevak’s benefits were “similar benefits” under LE § 9-610. To address this question, the Court looked to the plain language of LE § 9-610(a) and prior case law and concluded that the “same injury” standard is the proper test to identify whether benefits are subject to an offset under LE § 9-610. The Court ultimately held for the County, stating that the benefits Mr. Spevak was receiving for his back injury fully compensate him for all injuries related to his service as a firefighter. Other service-connected benefits would therefore be duplicative under the workers’ compensation system.

        Following this case, it becomes apparent that in the event an individual suffers more than one occupational injury, benefits may be “similar” and subject to the offset even if injuries develop on different body parts and/or there is a significant gap of time from which the injuries developed. The focus and application of the provision appear to fall on the type of benefit received, rather than the type of injuries suffered.

                -- Faith Zellman, Law Clerk


Friday, September 23, 2022

Maryland’s Intermediate Appellate Court Expands Scope of Personal Safety Exception


David P. Bogert, et al. v. Thomas A. Thompson, Jr., et al., No. 1171, Sept. Term, 2021.

    Under most circumstances, a plaintiff cannot recover for pain and suffering when the damage caused by a defendant’s negligence is limited to property only. A person seeking to recover for emotional pain in tort usually must also show an accompanying bodily injury. However, in a recent case Maryland’s Court of Special Appeals (“COSA”) expanded the scope of one exception to this general rule.

    At issue in Bogert v. Thompson was the application of the personal safety exception. Under this rule, there may be recovery when the defendant’s negligence causes property damage that results in emotional injuries that are due to the plaintiff’s reasonable fear for the safety of himself or for the members of his family.

    The facts of the case are as follows: On September 22, 2019, during the early morning hours Thomas A. Thompson, Jr. crashed his truck into the house where David P. Bogert and his family resided. Mr. Thompson was driving under the influence of alcohol, lost control of his truck, and crashed it through the Bogerts’ garage. Directly above the garage were the bedrooms of Mr. Bogert’s minor children. At the time, everyone was asleep but were immediately awakened by the sound of the truck’s impact. The noise caused Mr. Bogert to experience a flashback to an incident in 2005 while he was serving in Iraq. As a result, Mr. Bogert immediately believed his house was under attack and he rushed to his children’s bedrooms.

    Counsel for the Defendant, Mr. Thompson, moved for summary judgment and argued that, since the only damage caused by the Defendant was to the Bogerts’ property (which occurred while the Bogerts were sleeping), there could be no recovery for emotional injuries. To support this position, the defense distinguished the current case with the facts of Bowman v. Williams, 164 Md. 397 (1933), which allowed the plaintiff to recover for mental injuries after he witnessed a truck collide into the side of his house nearby his children’s bedroom. In Bowman, the plaintiff actually witnessed the negligent damage to his property while in the current case the Bogerts did not. The circuit court agreed that Bowman was distinguishable and granted summary judgment.

    On appeal, counsel for the Bogerts argued that the personal safety exception was applicable because Mr. Bogert was placed in reasonable fear for the safety of his children due to Mr. Thompson’s negligence, and this fear caused Mr. Bogert to incur measurable emotional injuries. In response, counsel for the Defendant argued that the cases applying the personal safety exception all involve situations where the plaintiff witnessed the accident giving rise to their mental injury. As such, observing the act of negligence is necessary before the exception will apply.

    In rejecting this contention, the COSA stated that a tortious act damaging a plaintiff’s property and causes what sounds like a loud explosion would likely cause a plaintiff to be just as afraid for his safety and the safety of his family if he hears the explosion, but does not see what caused it, as a plaintiff who sees the cause by witnessing the negligent act unfold. Therefore, when applying the personal safety exception the plaintiff need not witness the accident so long as (1) he was aware of it immediately after the accident occurred, and (2) that awareness caused the plaintiff to reasonably fear for his own safety or the safety of his family members.

             -- John Thompson, Associate