Godwin, Erlandson, MacLaughlin,
Vernon & Daney, LLC
Managing Litigation Risk - Locally, Regionally and Nationally
Court of Appeals of Maryland:
1. The Johns Hopkins Hospital v. Jane E.S. Correia, No. 49. September Term, 2007, Opinion by Eldridge, J., filed August 25, 2008, reported at 405 Md. 509, 954 A.2d 1073. Issue: Did the Court of Special Appeals err in affirming the trial court’s decision to instruct the jury that the elevator owner owed the elevator passenger the highest degree of care and skill and diligence practicable under the circumstances to guard against injury? Holding: The Court of Appeals affirmed the Court of Special Appeals, holding that like common carriers, owners or operators of elevators owe their passengers a heightened standard of care. The Court rejected elevator owner’s argument that the standard of care should be reduced considering the technological advances in elevators. Summary: In this case, the appellee was injured when a mechanical defect caused the elevator she was riding in to come to a jarring halt. The appellee filed suit against the elevator’s owner and operator (as well as against the elevator maintenance company, who was not involved in the appeal). The appellee’s main allegation was that the appellant negligently failed to pay attention to a number of warnings about the malfunctioning elevator.
2. STACHOWSKI V. SYSCO FOOD SERVICES OF BALTIMORE, INC., et al, 402 Md. 506; 937 A. 2d 195 (2007). This case is one of four cases addressed by our appellate courts this year on the interpretation of the law governing right to petition for modification or reopening under Labor and Employment Article, 9-736. This case focuses on the language contained in Labor and Employment Article, 9-736 (b) (3) (iii) providing that a request for the modification of an award, such as in a request to reopen for worsening of condition, must be filed within five years of “the last compensation payment”. The question presented was whether or not that date is the date when the check is received by the claimant either individually or through his attorney, or is it from the date of the mailing of the check? In this particular case the last payments to the claimant were in the form of checks from the employer’s workers' compensation insurer. Two checks were mailed on October 21, 1998, one payable to the claimant for some additional temporary total benefits and the second payable to the claimant’s counsel for an attorney’s fee. It was agreed that the checks were received the next day, October 22, 1998, by claimant’s counsel. Claimant’s counsel forwarded a check directly to the claimant on October 26, 1998. Bank records indicated that the check actually cleared on November 2, 1998. On October 22, 2003 the claimant filed a Petition for Modification of the original workers’ compensation award seeking reimbursement for medical bills and the payment of additional temporary total disability benefits for approximately a three month period of time. Interestingly, the Petition for Modification was filed exactly five years and one day from the date the last compensation check was mailed and exactly five years from the date that claimant’s counsel received the previous payment of compensation by check, October 22, 1998. After tracing the statutory history of this particular provision, along with general case law regarding statutes of limitations, the court focused its analysis on interpreting the meaning of the term “payment” under the statute. The court held that the date of last compensation payment for the purposes of the limitations provided in Labor and Employment Article 9-736(b)(3)(iii) is the date when payment is received by a claimant or his or her lawful representative. Accordingly the court found that the claimant’s Petition filed on October 22, 2003 was filed timely since it was filed within five years from the date that the claimant received the last payment on October 22, 1998. In cases in which a final payment is being made and there is an expectation that the case could be reopened, it would be advisable that the insurer send the final payment using a method that will provide adequate documentation as to when the payment was actually received.
3. GEORGE MALDONADO V. AMERICAN AIRLINES, ET AL, COURT OF APPEALS 405 MD. 467, 952 A. 2d. 294 (2008). In this case the claimant was found by the Workers’ Compensation Commission to have a permanent partial disability of 50% under “Other Cases” due to the injuries to his back and a psychiatric condition. Following judicial review of that decision by a jury, the percentage of disability was reduced to 35%. Evidence before the circuit court during the trial reviewing the Commission’s decision included testimony from the claimant as to his specific work experience with the employer, American Airlines, and the functions required in the job. He also testified as to his activities subsequent to his injury including obtaining a bachelors degree in theology and his current levels of functioning. In addition, each side presented videotaped medical expert testimony addressing the issues of psychiatric disability and addressing the physical disabilities. Dissatisfied with the findings of the jury, the claimant filed a Motion for Judgment Notwithstanding The Verdict alleging that the employer, as the moving party in the judicial review, was required to present expert testimony by a vocational expert in order to rebut the presumption of correctness attached to the Commission’s decision of 50% to be successful in obtaining a reduction of the Commission’s finding. At the trial neither side provided testimony from a vocational expert. The claimant’s specific argument was that any party that disputes a Commission decision under “Other Cases” and raises question of industrial loss must present testimony of a vocational expert during a Petition for Judicial Review in order to rebut the presumption of correctness of the Workers’ Compensation Commission. The circuit court disagreed and denied the motion. The Court of Special Appeals affirmed the finding of the circuit court.
This case came before the Court of Appeals on a Petition for Certiorari. After reviewing the law regarding judicial review of a decision from the Workers' Compensation to the circuit court, and the effects on that appeal based upon a statutory presumption of correctness, the court held that expert vocational testimony is not per se required in order to determine industrial loss. The question of whether a vocational expert would ever be required to rebut a presumption of correctness would depend upon the specific facts of the case. The overriding consideration is whether or not a jury can be provided with sufficient evidence from which to make a determination of industrial loss. If sufficient evidence is offered on all of the statutory factors required to consider industrial loss then the jury is allowed to address the extent of loss of use by considering those factors without the aid of a vocational expert. The court, in dicta, also indicated that the requirement for medical expert testimony in cases of permanency is not a per se requirement but depends upon whether or not the medical question is complicated and involves a fact finding which properly would fall within the province of a medical expert.
Court of Special Appeals of Maryland:
1. David Allen v. Marriott Worldwide Corporation, No. 2618, September Term, 2007, Opinion by Moylan, J., filed December 8, 2008. Issue: Did the trial court err in granting the appellees’ Motions for Summary Judgment based on the defense of assumption of the risk when the ice in question was hard to see “black ice” and not visible “white ice”? Holding: The Court of Special Appeals affirmed the trial court’s grant of summary judgment, holding that awareness of risk is an objective question and that the required knowledge is not that ice is actually present, but rather that, considering the weather and other circumstances, ice may likely be present. The Court went on to state that the element of awareness can be met by seeing it, as with “white ice,” or by inferring the likelihood that it may be there, as with “black ice.” Summary: This case involved a classic “slip and fall.” After checking out of a hotel owned by Marriott, the appellant walked down the sidewalk and slipped and fell on a patch of unseen “black ice” as he stepped off the curb onto the parking lot, instead of waiting for his wife to bring the car to the front entrance of the hotel. The appellant brought suit against the owner of the hotel and the company hired for snow and ice removal for negligence and premises liability. The appellees claimed the defense of assumption of the risk. The appellant’s argument was that since he could not see the “black ice,” he did not have knowledge of the risk, and thus, a crucial element of the assumption of the risk defense was lacking.
2. Lester Rivers v. Hagner Management Corporation, No. 516 & No. 1870, September Term, 2007, Opinion by Hollander, J., filed October 29, 2008, reported at 182 Md. App. 632, 959 A.2d 110. Issue: Did the trial court err in granting summary judgment in favor of appellees on the grounds that the owner/operator of the building had no duty to protect against arson? Holding: The Court of Special Appeals reversed the trial court, finding that the risk to be protected against was not the risk of an arsonist setting a fire, but rather the risk of any fire. The Court held that the appellees had a duty to comply with the fire safety code to protect its tenants in the case of fire, regardless of cause. Summary: An arsonist set a fire at the bottom of an apartment building’s only stairwell. The appellant, a tenant, tried to escape the fire from the second floor using the stairwell and suffered severe burns to his legs. The appellant brought suit, alleging that the appellees, the apartment building’s owner and landlord, were negligent in failing to provide smoke and fire alarms, fire extinguishers in the hallways, and safe means of exiting the building in the case of a fire, and in failing to comply with fire safety code. The appellant alleged that these failures on the part of the appellees caused his injuries. The appellees claimed that arson was not foreseeable, so they had no duty to the appellant to prevent it.
3. John Grady v. Darin Donnell Brown, No. 0246, September Term, 2007, Opinion by Salmon, J., filed June 30, 2008, reported at 180 Md. App. 367, 951 A.2d 105, cert. granted. 406 Md. 112, 956 A.2d 201. Issue: Did the trial court err when it denied the appellants’ Motion for Judgment? Did appellee violate the Boulevard Rule? Holding: The Court of Special Appeals affirmed the trial court, finding that even though the unfavored driver, the appellee, was in the boulevard when the accident occurred, the appellee had yielded the right-of-way to the favored driver, the appellant. The Court distinguished the case from other Boulevard Rule cases, as according to the appellee’s testimony, the appellee never intruded on the favored driver’s path. Summary: This case involved a motor vehicle accident at the intersection of a two-lane road and an alley that intersects the road. Parking is allowed on both sides of the road. The appellant was riding his motorcycle northbound while the appellee was driving his car westbound in the alley. The facts were disputed regarding what happened when the appellee reached the intersection of the alley and the road, and each party presented conflicting testimony. The appellant moved for judgment at the close of evidence and was denied. The jury found that the appellee was not negligent. The appellant moved for judgment notwithstanding the verdict and was again denied. As it was the appellant who moved the court for judgment, the Court of Special Appeals looked at the facts in the light most favorable to the appellee, the non-moving party. The appellee had testified that when he got to the end of the alley, he inched out onto the road, but did not go any further into the intersection than the side of the vehicle that was parked to his left, and denied that he had pulled into the path of the motorcycle.
4. Dove v. Montgomery County Board of Education, 178 MD. App. 602; 943 A. 2d 662 (2008).
This case also involves the filing of a Petition/Request for Modification of an award. This case addresses the procedural requirements for perfecting the filing of the Petition, rather than a question of timeliness. The leading case on this issue is Buskirk v. C.J. Langenfelder & Son, Inc., 136 Md. App. 261, 764 A. 2nd 857 (2001). Buskirk established that when a Petition to Reopen seeking to modify an award is based on a change in disability status, not only must the Petition be filed timely, but it must also specifically allege a change in disability status with a basis in fact for the allegation. The phrase “basis in fact” and its meaning was the focus of the Dove ecision.
On June 10, 2000 the claimant, by agreement, received her last payment of disability benefits from the employer, the Montgomery County Board of Education, following an award from the Workers’ Compensation Commission of May 31, 2000. On June 3, 2005 the claimant filed a Request for Reconsideration/Modification of the award of May 31, 2000. Along with the Request for Modification the claimant also filed formal issues at the Commission requesting temporary total disability for the period November 29, 2001 to the present and continuing and attached a medical report from her treating physician dated November 29, 2001. As part of the Request, claimant alleged that she was entitled to additional temporary total disability benefits for the period November 29, 2001 to the present and continuing. When the Request came before the Workers’ Compensation Commission on February 2, 2006 the employer challenged it based on the 5 year statute of limitations provided for filing the request. At the hearing the claimant modified her request for temporary total to claim only two days of temporary total disability benefits, August 29, 2002 and September 17, 2002. In support of the specific request claimant introduced for the first time a medical report documenting that on each of those days she had received an epidural steroid injection. No formal disability slips were submitted; the claimant testified that on the date that she received the injections she did not go to work. In support of the limitations argument at the Commission, the employer argued that at the time of the filing of the Petition the claimant was required to file with her request sufficient documentation to support her claim for a change in disability status. They argued that without the documentation, the filing was insufficient and, therefore, not adequate to toll the statute of limitations. The Commission ruled in favor of the claimant.
The employer filed a Petition for Judicial Review with the Circuit Court for Montgomery County. Following a hearing on Employer’s Motion for Summary Judgment the decision of the Commission was reversed. The Circuit Court ruling was premised on a belief by the Court that the claimant failed to provide adequate medical proof at the time of the filing of the Petition for Modification; therefore, without adequate documentation of a basis in fact in support of the Petition that was filed, the Commission had no legal authority to award the claimant temporary total disability for the two days requested at trial. Since the filing of the Petition was not properly perfected within the 5 years statute of limitations any claim for additional compensation benefits was barred. The Circuit Court accepted the argument of the employer that while the claimant introduced medical reports documenting that she received epidural steroid injections, those document’s offered to support the temporary total disability claim were filed at the Commission hearing not when the Petition for Modification was actually filed. The Court of Special Appeals reversed the finding of the Circuit Court.
The Court of Special Appeal’s holding was simple and direct: the plain language of Labor and Employment Article, section 9-736(b), does not contain any requirement that the supporting documentation actually be filed with a Request for Modification as long as at the time of the filing the Petitioner alleged and had a basis in fact for the filing. The Court found that the reopening statute only requires that a Petition/ Request for Modification must be applied for within the applicable five year period and that the Commission at the time of a hearing on the Petition receive documented proof that before the five year limitations period had run, that there was a basis in fact for the requested modification and the benefits ultimately ordered. The Court was persuaded by the fact that nothing in the Commission’s regulations governing the exchange of medical information expressly requires a claimant to file all supporting documentation with a Petition for Modification. The Court pointed out that at the time of the filing the claimant is only required to provide relevant medical information that is in his or her possession. The Court found that the applicable regulations “contemplate” that the use of medical information received by any party after a claim is filed is to be exchanged between the parties and can be used before the Commission. The Court held that a lawfully compliant Petition for Modification only requires that copies of all relevant medical information which is in possession of the party at the time of filing is required. Furthermore, this certainly does not prevent a party from using any other relevant information that is subsequently received; provided that the parties comply with the COMAR regulations regarding exchange of medical information. The Court of Special Appeals found that “…the Commission’s regulations and forms governing its procedure do not impose a requirement that a claimant must file all necessary medical documentation with the Request for Modification of an Award of Compensation.” Accordingly at the time of the filing of the Petition, the Petition must satisfy the Buskirk requirement that there is an allegation of a change in disability status with a basis in fact. The claimant at time of filing need only provide to all other parties copies of all relevant medical information in their possession at filing. Thereafter, the claimant must supply to all other parties copies of all relevant medical information. In this case the court found that the claimant’s Request for Modification without the reports at the time of filing documenting the basis for the allegation of a change in disability status was sufficient to toll the statute of limitations. It was sufficient when the case subsequently came before the Worker’s Compensation Commission because the claimant properly alleged a factual basis for a change in disability status and was able to later provide documentation at the Commission hearing that a change in disability status existed during the period covered by the 5 year statute of limitations. In cases such as this where there is a question as to whether or not the claimant had an adequate basis for alleging a change in disability status at the time their Petition for Modification or Reopening is filed the party opposing the Petition should request that the Commission specifically make a finding on the sufficiency of evidence provided in support of the Petition. For example in this case there could have been a request on the record that the Commission specifically find whether or not taking two days off from work to get injections supports the claimant’s allegation of a change in disability status prior to the running of the 5 year limitations period. 5. GIANT FOOD LLC, ET AL V. DAVID EDDY, 179 Md. App. 633; 947 A. 2d 161 (2008). In this particular case the claimant was last paid compensation on February 2, 1993. On January 9, 1998 (prior to the expiration of the 5 year period) the claimant filed a Petition for Modification alleging a worsening of condition. On February 16, 1999 counsel for the claimant sent a letter to the Commission advising that it was withdrawing the issues previously filed because the parties had reached an agreement resolving those issues. The Commission then noted the case as “continued reset on request.” Thereafter, the claimant was paid additional compensation benefits through a last date of September 13, 1998. On August 25, 2006 (more than 8 years after the filing of the Petition for Modification and nearly 9 years after last compensation paid) the Commission held a hearing on issues filed on July 14, 2006 by the claimant requesting additional temporary total disability benefits. At that time the request for additional temporary total benefits was challenged based on the 5 year limitations period in Labor and Employment Article 9-736. It should be noted that prior to this hearing date the employer and insure had consented to allowing claimant additional surgery but did not consent to any request for temporary total disability benefits during the contemporaneous time frame of surgery and the healing period thereafter. The request for temporary total disability benefits following claimant’s surgery was the basis for the temporary total disability claim and the focus of the hearing on August 25, 2006. The Commission denied claimant’s request for temporary total disability benefits finding that the 5 year limitations period had run. The Court of Special Appeals reversed the decision of the Circuit Court. The Court of Special Appeals found that the procedural decision of the Commission to note the case reset on request and continue the hearing was not intended to be an act of the Commission to extend continuing jurisdiction over the originally filed Petition for Modification. The Court of Special Appeals found that the denial of additional benefits on August 25, 2006 based on the statute of limitations argument made it evident that the Commission did not construe its previous continuance as one in which they were providing continuing jurisdiction for the consideration of and/or revival of the previously filed Petition. Therefore, the decision to continue the claim in a “reset on request status” after the timely filing of the Petition for Modification did not toll the limitations period provided in Labor and Employment Article, section 9-736. 6. LARRY YINGLING V. MILLENIUM INORGANIC CHEMICALS ET, AL, et al, 180 Md. App. 129; 949 A.2d.19 (2008). This is the last of the four cases to address the five year reopening statute of limitations provision in the Maryland Workers’ Compensation Act. In this case the claimant was paid temporary total disability benefits through April 13, 1998. Several years later the claimant became a candidate for surgery. The Employer and the Insurer scheduled an independent medical examination to address whether or not there were any defenses to the claim for surgery. A dispute arose between the claimant and his employer as to how he was going to be paid when he missed time from work to attend the requested independent medical examination. An agreement was ultimately reached and the claimant was actually paid a full day’s wages directly from his employer to attend the IME. The claimant attended the independent medical examination on February 26, 2004 and was paid the full day’s wages by his employer. Issues were later filed in September of 2004, nearly six and a half years after claimant’s last agreed payment of compensation benefits; payment of temporary total disability benefits through April 13, 1998. The Commission held a hearing and denied claimant’s request for surgery. The Commission also ruled that any claim for temporary total disability benefits was time barred under Labor and Employment Article, section 9-736. The claimant argued before the Commission that the full day’s wages paid directly by the employer amounted to a new payment of compensation triggering the start of a new five year period of time under the applicable statute of limitations. In support of this argument the claimant relied on Labor and Employment Article, section 9-667. That statutory provision provides for wage reimbursement for lost wages due to time spent in a physician’s examination at the request of the employer or its insurer. Claimant argued that this payment was a payment under that section and that payments under that section are payments of compensation for the purpose of tolling the statute of limitations under Labor and Employment Article, section 9-736. The claimant reasoned that since he was paid wages directly from his employer for the IME on February 26, 2004 and, that payment was a payment of compensation under the Act, claimant alleged that any claim for disability benefits would not be time barred since his Petition for Modification was filed within 5 years from that last payment of that compensation. The Court of Appeals addressed the issues of whether the regular payment of wages that the claimant received directly from his employer for the February 26, 2004 visit was a wage reimbursement under Labor and Employment Article, section 9-667. The Court found that the claimant was paid his regular wage as if he had not taken any time off to attend the independent medical examination. He was not “reimbursed” for anything but was rather paid a regular full day’s wages for his work day of February 26, 2004. Since this was not a “reimbursement” paid under Labor and Employment Article, section 9-667, the provision did not apply to the facts of his case. The Court expressly stated that they were rendering “no opinion” about whether a wage reimbursement actually covered under Labor and EmploymentArticle, section 9-667 is “a payment of compensation for purposes of the five year statute of limitations." Issue: Did the trial court err in granting the appellee’s Motion for Summary Judgment based on the Boulevard Rule when the decedent was riding a skateboard at the time of the accident? Holding: The Court of Special Appeals affirmed the trial court’s grant of summary judgment, holding that a skateboard meets the statutory definition of vehicle, and as such, the decedent violated the Boulevard Rule by riding the skateboard to the end of a driveway and entering the road without stopping or yielding to the appellees, who were the favored drivers. Thus, the Court found the decedent was contributorily negligent as a matter of law. Summary: This case involved an accident at the junction of a two-lane road and a driveway. The decedent, survived by his wife, the appellant, had been riding his skateboard down one driveway, across the road, and up another driveway across the street, while the appellees were driving in their car southbound on the road under the speed limit. The accident happened when decedent was travelling in a westerly direction from one driveway across the road, and he was struck by the appellees’ car. The appellant brought suit against the appellees alleging that their negligence caused her husband’s death. Issue: Did the trial court err in granting the appellee’s Motion for Summary Judgment on the ground that the injured appellant was a bare licensee and that the appellants failed to make a prima facie showing of negligence?
A Petition for Judicial Review was filed. The Circuit Court reversed the finding of the Commission. The Circuit Court found that while the most recent issues were not filed within the five year period of time, the fact the case was previously continued reset on request following the timely filing of a Petition for Modification was sufficient to toll the period of limitations. At the time that the claimant later sought to have the case reset the originally filed petition was sufficient to toll the running of the limitations period. In essence the Circuit Court found that the “continued reset on request” status was basically a decision to delay Commission review of the Petition for Modification; therefore when claimant later sought additional compensation benefits the statute of limitations had been tolled until such time as the Petition for Modification was either heard or specifically withdrawn. The Circuit Court found that since the case was in a continued reset on request status, that the Commission had continuing jurisdiction to ultimately hear a timely filed Petition for Modification and a subsequent request for additional disability benefits. The last compensation payment in this case was February 2, 1993. Within a five year period, on January 9, 1998, the claimant filed an appropriate Petition for Modification due to an alleged worsening of condition.
This remains an open issue to date. This is a potentially difficult question that requires a cautious approach. Claimant based their argument in support of the undecided issue in the appeal---- that a payment under Labor and Employment Article 9-667 was a payment of compensation tolling the statute of limitation under Labor and Employment Article 9-736--- on the beginning language section, 9-667 that provides, “In addition to any other compensation paid to a covered employee…” It is instructive, however, to look at the next part of the statutory phrase that provides: “…. entitled to compensation under this title…” If a claimant is not “entitled to compensation” because the statute of limitations for the payment of additional compensation has run then any request for payment made under Labor and Employment Article 9-667 should be denied. This makes sense since an employer and insurer should be free to investigate a claim for medical treatment and not fear that a payment under Labor and Employment Article 9-667 is a payment of compensation which would trigger a new 5 year period of last compensation paid under Labor and Employment Article 9-736.
7. TOOT YOUNGBLUD V. FALLSTON SUPPLY CO., et. al. 180 MD. APP 384; 951 A. 2d 118 (2008). In any case in which a claimant alleges entitlement to workers’ compensation benefits under the Maryland Law they must prove that they had an accidental injury arising out of and in the course of employment. Under the doctrine of personal idiopathy, if a claimant’s injuries were otherwise in the course of employment but were precipitated by a totally personal idiopathic condition then it cannot be said that the claimant’s accidental injury arose out of employment. In order for an accident triggered by a totally personal and idiopathic condition to be compensable the idiopathic event must be aggravated or triggered by some requirement of the employment or some requirement or condition of the employment must have contributed to the hazard that was created by the idiopathic event. In this particularcase the claimant was a diabetic who frequently dealt with bouts of lightheadedness and hypoglycemic episodes. As part of claimant’s employment, he was required to work on the second floor of a residential home renovated into an office. He would frequently make trips from his second floor office to the first floor to go into the company kitchen and take snacks in order to maintain his blood sugar stability. On the day of the accident the claimant was in his second floor office and started to feel lightheaded. He made a decision to go downstairs, get some air and then eat his lunch. While at the top of the staircase he fell down landing on a small landing with his head wedged against a wall. At the trial before the Commission and before the Circuit Court on judicial review there was a finding that there was “no evidence of any defects or abnormalities in the carpeting on the stairs or any defects abnormalities or unusual condition on the stairs themselves at the time of the fall”. Additionally there was no evidence that there were any obstructions, lighting issues or any other unusual conditions applicable to either the office or the use of the stairs. The Workers’ Compensation Commission found the claim to be compensable; it specifically found that the “defense of idiopathic condition is denied” (staircase condition contributed to the fall).
The Circuit Court reversed the finding of the Commission. The Circuit Court found that the claimant fell down because he suffered a hypoglycemic episode which was unquestionably caused by his idiopathic condition, his diabetes. The Court found no evidence to indicate that there was any contribution in either aggravating the nature of the injury or triggering the event by the claimant’s employment. The Circuit Court found that the claimant’s injuries did not arise out of his employment. The claimant’s argument in support of compensability was premised on the fact that the claimant, given his known medical condition, was placed in a position of danger by having to use the steps in the company office for entry and exit to his office. The logic then followed that the steps were incident to his employment and therefore his injury was compensable.
The Court of Appeals in affirming the circuit court’s denial of this claim first highlighted that an idiopathic condition refers to certain risks or conditions which are personnel to the claimant and do not themselves, arise out of the employment unless the employment contributes to the risk or aggravates the injury. The Court held that the claimant’s job as a computer aided drafter did not involve any special risk in his employment that would have caused the fall or made the injuries he sustained in the fall more severe because of his personal condition of diabetes. They found that the simple tasks of daily life such as walking through the work place or taking stairs in the work place to get from one place to another is not a peculiar or particular condition of the employment. While recognizing that the claimant’s fall due to his hypoglycemic condition may not have been as severe if the location was other than a staircase, that alone does not make the staircase an incident or hazard of the employment. The court reinforced that there must be something peculiar in the occupation that would make an otherwise ordinary function more dangerous. To circumvent this defense the claimant must be able to identify an enhanced risk arising out of the employment. Nothing about the claimant’s job as a drafter created a hazard that would have contributed to the fall or aggravated his injury or risk of injury.
8. Wooldridge v. Price, No. 45, September Term, 2008, Opinion by Eyler, J., filed March 5, 2009.
9. Richardson v. Nwadiuko, No. 2816, September Term, 2007, Opinion by Wright, J., filed March 6, 2009.
Holding: The Court of Special Appeals affirmed the trial court’s grant of summary judgment, although it found that the injured appellant was an invitee, not a bare licensee. The Court held that appellants did not make a prima facie showing of negligence, as there was no showing that appellee knew of the slippery condition of the floor or that the condition had existed long enough for appellee to have constructive notice of it.
Summary: This case involved a classic “slip and fall.” A woman accompanied her husband to a doctor’s appointment on a rainy day and upon entering the office, she slipped and fell on the tiled floor. The woman and her husband, the appellants, brought suit against the doctor-owner of the office, the appellee, for negligence. The appellee filed a motion for summary judgment claiming that the woman was a bare licensee and not an invitee, and that he did not have notice or knowledge of any dangerous condition at the premises.
Recent Case of Interest from Another Jurisdiction:
United States District Court for the Northern District of West Virginia United States of America v. Harris, No. 5:08CV102, Opinion by Stamp, J., filed November 13, 2008. Issue: Can an attorney be held individually liable for conditional third-party payments made to a Medicare beneficiary? Holding: The United States District Court for the Northern District of West Virginia denied the defendant’s motion to dismiss. The Court held that when Medicare makes conditional payments for medical services resulting from an injury caused by another party, Medicare can recover the amount of the conditional payments from any entity responsible for making the primary payment or from any entity that received a primary payment, including an attorney. Thus, the defendant attorney, who received the settlement and primary payment from the defendant in the underlying liability claim, could be held individually liable. Summary: This case involved a Medicare beneficiary who fell off a ladder. The Centers for Medicare and Medicaid Services paid over $22,000 in Medicare claims related to the accident. The Medicare beneficiary hired the defendant, an attorney, to sue the ladder retailer, who the Medicare beneficiary alleged was liable for his accident. The ladder retailer settled the claim and paid the Medicare beneficiary and his attorney (the defendant) $25,000. The defendant sent the settlement information to Medicare, and Medicare determined that it was entitled to about $10,000. Medicare was not paid in the statutory window, and brought suit against the defendant. The defendant moved to dismiss the suit for failure to state a claim, arguing that as a lawyer, distributing settlement funds while representing his client, he could not be held individually liable for repayment of the debt.
