SHIFTING BURDENS OF PROOF IN A WORKERS COMPENSATION CLAIM

STATEMENT OF FACTS

ANSWERS TO INTERROGATORIES
1. If you contend that you sustained an injury to in the course of your employment at Fitzgerald Auto Mall, Inc., as defined by the Maryland Labor and Employment Code Annotated, and the Maryland case law, state with precision the factual and legal basis for this contention.

ANSWER: I was working on Thursday, November 14, 2013 performing normal duties at work, delivering a sold vehicle on the premises to a customer and crouched down to put customers paperwork in the glove box and leaned forward and then back onto my haunches and felt a pop in my knee and immense pain immediately.

10. If you suffered any injury and/or disability of any kind, prior or subsequent to the alleged accident, give a concise statement of the date of injury/disablement, type o injury/disablement, and provide the name and address of any healthcare provider who treated you for the injury.

ANSWER: Occasional pop in knee, no pain and no treatment.

WORKERS’ COMPENSATION TRANSCRIPT STARTING ON PAGE 6 LINE 2, Question: And during that process what, if any, any other actions did you take? Was there additional paperwork?
Answer; there was some additional paperwork that actually needed to be put in the glove compartment box. Then when we were finished going over the bells and whistles I opened up the doors. I had heard my name being called by my finance manager, Michael Bennett; he then gave me some paperwork. I had gotten out of the vehicle, walked up the ramp toward the show room, when I received my paperwork.
Question, And then what did you do?
Answer, I then turned around, and walked back to the vehicle both doors were open. The customer was, at this point in time, standing on the driver’s side, and I walked back to the passenger’s side. Then with the door open, I crouched down to put this paperwork into the glove compartment box for the customer.
Question, what happened?
Answer, I had at that point, I needed to lean slightly forward to be able to put that in there. Closed the glove box again and I had leaned back, kind of rocked back. And as I was crouched down on my haunches, I then felt a pop and had an immense pain in my right knee.
Question, and then what did you do?
Answer, I stood up. Realized very quickly that I could not stand on that leg, and there really was immense pain so I actually slightly turned around and sat down on the passenger seat. See attached workers’ compensation transcript pages 6 and 7, page 6 starting on line 2 and going through line 25 and page 7 starting on line 1 and ending on line 8.

The workers compensation commission held a hearing on 4-17-14. An order from the commission found the claimant sustained an accidental injury arising out of and in the course of employment on November 14, 2013, that the disability of the claimants right leg/knee is the result of aforesaid injury (aggravation of a pre- existing condition) and as a result the claimant was temporarily and totally disabled from 11-14-13 to 11-29-13 inclusive. The commission answered no to the issue of idiopathic condition; the commission concludes that the incident at work aggravated a pre-existing condition. Finally, the commission authorized an MRI to the right knee.

ARGUMENT

Motions for summary judgment are governed by MARYLAND RULE 2-501, which provides that, “the court shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” [***5] MARYLAND RULE 2-501(e) (1998). See also Bagwell v. Peninsula Regional Medical Ctr., 106 Md. App. 470, 488, 665 A.2d 297 (1995), cert. denied, 341 Md. 172, 669 A.2d 1360 (1996) (holding trial court to same requirements as MD. RULE 2-501). In making its determination, the circuit court must view the facts and all inferences from those facts in the light most favorable to the non-moving party. Brown v. Wheeler, 109 Md. App. 710, 717, 675 A.2d 1032 (1996). Even when there is a dispute as to the facts, if resolution of that factual dispute is not material to [*221] the controversy, such dispute does not prevent the entry of summary judgment. Lynx, Inc. v. Ordnance Products, Inc., 273 Md. 1, 8, 327 A.2d 502 (1974). A material fact is one that will affect the outcome of the case. Id. Cheney v. Bell Nat’l Life Ins. Co., 315 Md. 761, 766, 556 A.2d 1135 (1989). Young v. Allstate Ins. Co., 120 Md. App. 216, 221 (Md. Ct. Spec. App. 1998)

The standard for review by the appellate court is whether the trier of fact misconstrued the law applicable to this case. The decision of the Commission is presumed to be prima facie correct and the burden of proof is on the party challenging the decision on appeal. See Md. LABOR AND EMPLOYMENT Code Ann. § 9-745(b). In appeals involving the issue of accidental injury, the reviewing court has a very broad authority notwithstanding the prima facie correctness of the Commission’s decision and this authority extends to both findings of fact and applicable law. Montgomery Ward and Company v. Bell, 46 Md. App. 37, 41, 415 A.2d 636, 638 (1980).
In S.B. THOMAS, INC v. THOMPSON, 114 Md. App. 357, 689 A.2d 1301 (1997) the Court of Special Appeals described the two alternative modalities that an appeal from the Workers’ Compensation Commission may follow under Labor and Employment Art. § 9-745. Section e of 9-745, replicates the routine appeal process from administrative agency decisions generally.

“According to that modality, the circuit court reviews the Commission’s action on the record and determines whether the Commission 1) acted within its power and 2) correctly construed the law and facts.
The other and more unusual modality is that spelled out by § 9-745(d), which provides for what is essentially a trial de novo. Holman v. Kelly Catering, 334 Md. 480, 484, 639 A.2d 701 (1994); Smith v. State Roads Commission, 240 Md. 525, 533, 214 A.2d 792 (1965); Richardson v. Home Mutual, 235 Md. 252, 255, 201 A.2d 340 (1964); General Motors Corp. v. Bark, 79 Md. App. 68, 74, 555 A.2d 542 (1989). R.P. Gilbert and R.L. Humphreys, Maryland Workers’ Compensation Handbook (1988), 312-314, discusses the fundamentally different natures of the two appeal modes:

The practice is that appeals are presented to trial courts in one of two fashions: (1) the submission of the case to the judge on the basis of the record made before the Commission; or (2) a de novo evidentiary hearing before the court sitting with or without a jury. (Footnote omitted).
In this case, the appellants chose the avenue of an essentially de novo trial rather than that of an appeal on the record. In General Motors Corp. v. Bark, 79 Md. App. at 76, 555 A.2d 542, we discussed the difference between those fundamentally dissimilar forms of review:

Under that dichotomy, it is the first of these appeal modes that requires the circuit judge to determine under Section [9-745(e)]:
1) whether the Commission has “justly considered all of the facts concerning the injury,”
2) whether it has “exceeded the powers granted it by the [title],” and
3) whether it has “misconstrued the law and the facts applicable in the case decided”
and then directs him to affirm “the decision of the Commission” if he determines “that the Commission has acted within its powers and has correctly construed the law and facts.” Thus far, there is nothing of a de novo nature involved. Thus far, a review by the circuit court of the record before the Commission would suffice. The statutory direction to affirm an error-free Commission decision would not apply, however, to the alternative appeal mode of de novo trial. Indeed, once the circuit court embarks upon its de novo fact-finding mission, it is totally unconcerned with whether the Commission “correctly construed the law and facts” or not.

When the form of appellate review invoked at the circuit court level is that of a de novo determination of the facts, § 9-745(b) takes on potentially great significance at such a de novo trial:(b) Presumption and burden of proof — In each court proceeding under this title:(1) the decision of the Commission is presumed to be prima facie correct; and(2) the party challenging the decision has the burden of proof…This phenomenon of shifting burdens was first discussed over seventy-five years ago in Stewart & Co. v. Howell, 136 Md. 423, 433-34, 110 A. 899 (1920), by the first Judge Adkins:I]t simply puts the burden of proof upon the party taking the appeal, whether he be plaintiff or defendant. In other words it establishes no new rule when the plaintiff happens to be the party appealing, as the burden was always upon the plaintiff to prove his case. But it shifts the burden from the plaintiff to the defendant where the defendant loses before the Commission and desires to appeal from its decision, requiring the defendant in such a case to satisfy the jury by a preponderance of testimony that the plaintiff is not entitled to the award made by the Commission.

The Circuit Court Ruling As the appellants mounted their essentially de novo case before Judge Stepler and a jury, therefore, they confronted three impediments that had not earlier been theirs before the Commission.1. Theirs was now the burden of production affirmatively to establish, as a matter of law, a prima facie, to wit, a legally sufficient, case that there was no causal connection between the earlier injury and the later disability. Theirs was not the lesser task of merely casting doubt on the claimant’s proof of causation, for the claimant no longer bore any obligation to prove causation; that had become a “given” in the case. Theirs was, rather, the greater task of generating affirmatively a genuine jury issue of non-causation. As the risk of non-production, they could suffer a judgment against them, as a matter of law, and the case would never be allowed to go to the jury.2. Theirs was also now the burden of ultimate persuasion. If they successfully shouldered the burden of production and the case were permitted to go to the fact finder, judge or jury, theirs was also the burden of persuading the fact finder of the fact of non-causation by a preponderance of the evidence.

If the mind of the fact finder were in a state of absolute equipoise between causation and non-causation, the appellants would, as the self-evident risk of non-persuasion, lose.3. As an additional factor making that burden of persuasion more difficult, the jury would be informed that the Workers’ Compensation Commission had earlier determined that there was, indeed, a causal relation between the earlier injury and the later disability. As further factors adding to the weight of that burden of persuasion, the jury would be instructed that the decision of the Commission was presumed to be correct; that the burden was on the appellants to overcome that presumption of correctness; and that, if they were in doubt as to whether the presumption had or had not been overcome, they would treat the Commission’s finding of causation as factually correct. Before Judge Stepler, the appellants were never required to address the second and third hurdles. Both of them involve the problem of persuasion, and the case never got to the point where persuasion even became an issue. The appellants failed to clear even the first hurdle, which was the burden of production.

When an appeal to the circuit court from the Workers’ Compensation Commission is in the posture of this case, to wit, with the claimant’s having prevailed before the Commission, the “essential trial de novo” is, in effect, a mirror image of the earlier hearing before the Commission. With respect to the duty of going forward with evidence, the allocations of both burdens of proof, and even instructions as to the factual status quo that is the point of departure, everything has become the reverse image of what once it was. Whereas once the right hand had had to push all the buttons and turn all the knobs, it was now the left hand that has to do so…In terms of the task facing the appellants, a more descriptive metaphor may be that they, before the circuit court, are required to roll the film of historic events backward.

Whereas once the appellee had the task of filming forward the story of causation, that had already been done before the case arrived at the circuit court. Causation had already been established as the presumptively correct fait accompli, and the appellants took on the affirmative burden of rolling the film backward to prove a different version of what had, or according to them had not, happened. It was past the time for simply criticizing someone else’s storytelling. As in the classic Japanese play Rashomon, it was now a different character who assumed the narrative burden. The appellants’ newly assumed narrative burden before the circuit court was to show that the appellee’s current disability was not causally related to the accidental injury suffered by him on October 6, 1992. The appellants, rather than produce any expert medical testimony to that end, sought to demonstrate “factually” that the appellee must have had a non-work-related accident that caused his current disability. The appellants sought to prove that the appellee’s current condition was not work-related by noting 1) the long delay between the actual work-related accident and the current disability, 2) the relatively “minor” nature of the appellee’s injury immediately after the work-related accident, 3) the appellee’s statement to a doctor on June 11, 1993 that he “did have another back injury,” and 4) the appellee’s statements to Ms. Kolb and Mr. Anderson on the day his back “locked-up.”Judge Stepler nonetheless ruled that the appellants had failed successfully to shoulder their burden of production:[T]he decision of the Worker’s Compensation Commission was that the disability was causally related to the accident and that the Commission decision in a proceeding such as this is presumed to be correct.

The petitioner in this case, who is the employer-insurer at this point, has the burden of showing a prima facia case to show that there is no causal connection between the injury and the accident that occurred in October of 1992. In this case, the claimant’s disability … was a back injury which included pain radiating down both legs and resulting in a herniated disk which required surgical treatment. This … I find to be a complicated medical question involving the need for expert medical testimony in the petitioner’s case in order to overcome a motion for judgment….[A]t the time that the employer-insurer rested, … they had presented no medical evidence … on the causal connection issue. In essence, the employer-insurer was asking the jury to speculate that the claimant must have had some unexplained accident or … event that caused his injury and I find that that was not legally sufficient to sustain their burden … (Emphasis supplied).Although we are strongly of the opinion that the appellants would have failed to satisfy their burden of production even if they had not been required to produce some expert medical evidence of non-causation, we will follow Judge Stepler’s decisional rationale in assessing her ruling. She ruled that under the circumstances of this case, the issue of non-causation was a complicated medical question calling for expert medical testimony. She further ruled that when the appellants failed to produce such expert medical testimony, they ipso facto failed to satisfy their burden of production. We affirm her ruling in that regard.” S.B. THOMAS, INC v. THOMPSON, 114 Md. App. 357, 689 A.2d 1301 (1997)

Further In S.B. THOMAS, INC v. THOMPSON, 114 Md. App. 357, 689 A.2d 1301 (1997) on the subject of what is a “complicated medical question” so as to require by way of proof expert medical testimony, the oracle to which all Maryland practitioners, including ironically both parties in this case, repair is Wilhelm v. State Traffic Safety Comm’n, 230 Md. 91, 185 A.2d 715 (1962). All such cases must be resolved on a case-by-case basis and the best that the case law can do is to articulate some general guidelines. Wilhelm undertook such an articulation, 230 Md. at 99-100, 185 A.2d 715:
“There are, unquestionably, many occasions where the causal connection between a defendant’s negligence and a disability claimed by a plaintiff does not need to be established by expert testimony. Particularly is this true when the disability develops coincidentally with, or within a reasonable time after, the negligent act, or where the causal connection is clearly apparent from the illness itself and the circumstances surrounding it, or where the cause of the injury relates to matters of common experience, knowledge, or observation of laymen. However, where the cause of an injury claimed to have resulted from a negligent act is a complicated medical question involving fact finding which properly falls within the province of medical experts … proof of the cause must be made by such witnesses. (Citations omitted)…

Contrasted with all of those cases holding that the causal relationship in issue was a complicated medical question requiring expert testimony is the decision of this Court in Schweitzer v. Showell, 19 Md. App. 537, 313 A.2d 97 (1974). To the extent to which we can distill any general wisdom out of the case law, it seems to be this. A genuine jury issue as to the causal relationship between an earlier injury and a subsequent trauma may sometimes be generated, even in the absence of expert legal testimony, when some combination of the following circumstances is present: 1) a very close temporal relationship between the initial injury and the onset of the trauma; 2) the manifestation of the trauma in precisely the same part of the body that received the impact of the initial injury; 3) as in Schweitzer v. Showell, some medical testimony, albeit falling short of a certain diagnosis; and 4) an obvious cause-and-effect relationship that is within the common knowledge of laymen.
Conversely, the causal relationship will almost always be deemed a complicated medical question and expert medical testimony will almost always be required when one or more of the following circumstances is present: 1) some significant passage of time between the initial injury and the onset of the trauma; 2) the impact of the initial injury on one part of the body and the manifestation of the trauma in some remote part; 3) the absence of any medical testimony; and 4) a more arcane cause-and-effect relationship that is not part of common lay experience (the ileitis, the pancreatitis, etc.)

When all is said and done, we are perhaps reduced to a truism: the stronger the case for the causal connection even absent expert medical testimony, the lesser the need for such testimony; the weaker the non-medical case for the causal connection, the greater the need for such testimony.[2] There is more involved, of course, than a simple inverse proportion between the strength of the non-medical-expert case of causation and the need for expert medical testimony. Some questions of causation might involve medical knowledge so recondite that expert testimony would always be required. Other questions of causation would not. There can be no hard and fast rule controlling all cases. It does appear clear, however, that when there is a genuine issue as to whether there is a causal connection between an earlier injury and a subsequent disability, in the majority of cases it will be a complicated medical question requiring, as a matter of law, expert medical testimony.” Wilhelm v. State Traffic Safety Comm’n, 230 Md. 91, 185 A.2d 715 (1962)

The Wilhelm court then went on to ask,
“is a complicated causation problem complicated in both directions? In one sense, the case law is skewed. All of the cases we have discussed involved the legal sufficiency of the proof of causation. The case now before us, of course, has reverse English on the ball. We are here concerned with the legal sufficiency of the proof of non-causation. Is there a difference? Judge Stepler ruled that, under the circumstances of this case, there was not:
The fact that the employer-insurer is attempting to disprove causal connection rather than prove it certainly should not matter. In either case, the question is medical in nature and certainly not within the experience of lay witnesses, [who] are the only … witnesses [who] have been presented in the case. Apparently claimant’s disability which arose seven months, several months, after the accident was not diagnosed after he was seen by a number of doctors and had sophisticated diagnostic testing. Just as the claimant would be required, if he had the burden of proof of going forward to demonstrate causal relationship through expert testimony, I would find that the employer-insurer seeking to disprove the relationship has the same requirement, and the prima facia requirement will require medical testimony, so for that reason, ladies and gentlemen, I have granted the motion. Wilhelm v. State Traffic Safety Comm’n, 230 Md. 91, 185 A.2d 715 (1962)
Generally speaking, when the relationship between an earlier injury and a subsequent disability presents a complicated medical question so that expert medical testimony would be required to establish a prima facie case of causation, expert medical testimony would also be required, when the allocation of the burden of production is reversed, to establish a prima facie case of non-causation. If the possible relationship between two medical events represents a difficult medical issue, it would make little or no difference whether we were, depending on the vagaries of trial procedure, attempting to connect or to disconnect the two events. Expert medical knowledge as to the expected sequelae of an injury would be equally valuable and, indeed, necessary, regardless of the direction in which the burden of proof was moving. Wilhelm v. State Traffic Safety Comm’n, 230 Md. 91, 185 A.2d 715 (1962)
We hesitate to announce a perfect analogy between the burden of proving causation and the burden of proving non-causation, primarily because innate caution makes it prudent “never to say never” or otherwise to speak in absolutes. There may be, conceivably, some inherent differences between the affirmative proof of a positive proposition and the affirmative proof of a negative proposition. It is always possible that some non-medical testimony may be sufficiently more probative in one direction than in the other as to alter the nature of the respective required medical proofs. At the very least, however, there is a very strong analogy between proving causation and proving non-causation. When the possible relationship is a complicated medical question, moreover, we can envision no distinction between the two procedural positions. If expert medical testimony is required to connect two events in the first instance, it is, once that connection has been established, equally required to disconnect them. Wilhelm v. State Traffic Safety Comm’n, 230 Md. 91, 185 A.2d 715 (1962)
In the present case, we hold that expert medical testimony was as surely required for the appellants to prove non-causation as it would have been required for the appellee to prove causation, had the decision of the Workers’ Compensation Commission gone in the opposite direction. Before the Commission, the status quo was that there was no causal relationship between the events of October 6 and June 3. The appellee, as claimant, was the proponent who was required to prove that there was such a relationship. He successfully did that. Before the circuit court, therefore, the new status quo was that there was a causal relationship between the events of October 6 and June 3. The appellants became the proponents and took on the affirmative burden of proving non causation. Their burden in that regard was no different than would have been the appellee’s burden, had he been the moving party at the circuit court level. It was not enough for the appellants to introduce some relevant evidence that might have been sufficient to cast doubt on the appellee’s case if the appellee had had the burden. If that were all that was required of the appellants, the presumption of correctness of the Commission’s decision and the shifting of burdens at the circuit court level would be meaningless. That, in effect, would shift the burden back to the claimant and permit the appellants simply to throw darts at his case. Theirs, however, was the greater burden of proving, from the ground up, an affirmative case of non-causation. In this case, the analogy between the proof of non-causation and the proof of causation applies.” Wilhelm v. State Traffic Safety Comm’n, 230 Md. 91, 185 A.2d 715 (1962)
In Marc Eijgelsheim’s case, the claimant would argue that the issue about whether the injury was due to an idiopathic condition or to the injury on the job is a complicated medical question requiring expert medical testimony. The employer and insurer have provided no expert opinion from a medical doctor supporting their position. Their sole defense is based on counsel’s argument, that Mr. Eijgelsheim knee injury that took place on the 11-14-13 was due to unknown causes or something that is personal to the employee and therefore was due to an idiopathic condition. Mr Eijgelsheim testified at his workers compensation hearing as to how he believed his knee was injured. “Question: And during that process what, if any, any other actions did you take? Was there additional paperwork?
Answer; there was some additional paperwork that actually needed to be put in the glove compartment box. Then when we were finished going over the bells and whistles I opened up the doors. I had heard my name being called by my finance manager, Michael Bennett; he then gave me some paperwork. I had gotten out of the vehicle, walked up the ramp toward the show room, when I received my paperwork.
Question, And then what did you do?
Answer, I then turned around, and walked back to the vehicle both doors were open. The customer was, at this point in time, standing on the driver’s side, and I walked back to the passenger’s side. Then with the door open, I crouched down to put this paperwork into the glove compartment box for the customer.
Question, what happened?
Answer, I had at that point, I needed to lean slightly forward to be able to put that in there. Closed the glove box again and I had leaned back, kind of rocked back. And as I was crouched down on my haunches, I then felt a pop and had an immense pain in my right knee.
Question, and then what did you do?
Answer, I stood up. Realized very quickly that I could not stand on that leg, and there really was immense pain so I actually slightly turned around and sat down on the passenger seat. See attached workers’ compensation transcript pages 6 and 7, page 6 starting on line 2 and going through line 25 and page 7 starting on line 1 and ending on line 8.”
Claimant is not a Doctor, nor is defense counsel. Even if defense counsel was a doctor he cannot be a witness in his own case. Normally, because of the immediate nature of the injury happening while the claimant was bending, the claimant would be less likely required to produce an expert. However, when the employer and insurer raise the issue of idiopathic condition, this transforms the case from simple to a complicated medical issue requiring expert testimony in order to raise such a defense. Because the employer and insurer provide no expert testimony, than as a matter of law they cannot sustain their burden and the court must enter a judgment in favor of Mr. Eijgelsheim. On page 2 of the Cross Motion for Summary Judgment, the appellant cites the case of Tennant v. Shoppers Food Warehouse, 115Md app 381, 693 A2d 370 (1997) for the following proposition, “to defeat a motion for summary judgment, the party opposing the motion must present admissible evidence to prove the existence of a dispute of a material fact. A party cannot establish the existence of a dispute merely by making formal denials or general allegations of disputed facts. Moreover, the evidence offered to show the existence of a disputed fact must be sufficiently detailed and precise in order to enable the trial court to make it’s ruling as to the materiality of the proffered facts.” The Appellant as part of this answer and cross motion has presented no evidence other than his lawyer’s argument which is just that argument, but not evidence.

If the court disagrees with Mr. Eijgelsheim analysis requiring expert testimony, Mr. Eijgelsheim still believes he is entitled to a judgment as a matter of law. Under the case of Harris v. Board of Education of Howard County, 375 Md. 21, 825 A.2d 365 (2003) Mr. Eijgelsheim sustained an accidental injury arising out of and in the course of his employment.
Our initial analysis in support of the workers compensation finding a compensable accident requires us to first define the term accidental personal injury. Accidental personal injury is defined as “an accidental injury that arises out of an in the course of employment.” Md. LABOR AND EMPLOYMENT Code Ann. § 9-101(b) (1).
Based upon the above definition, there are three elements to an accident personal injury: 1) accidental injury 2) arises out of the employment, and 3) in the course of the employment. Harris v. Board of Education of Howard County, 375 Md. 21, 825 A.2d 365 (2003)
For years, the Court of Appeals added a fourth element requiring an unusual activity in order to be a compensable claim. Slacum v. Jolley, 153 Md. 343, 138 A. 244 (1927). This particular element was eliminated when the Court of Appeals reversed approximately eighty years of prior Court of Appeals and Court of Special Appeals decisions in the case of Harris v. Board of Education of Howard County. Harris eliminated once and for all the requirement of accidental injury that there be an unusual activity. Harris at 59 The Court of Appeals held “the above quoted language contains no mention of unusual activity.” Id at 30. The Court then went on to explain the first element of accidental personal injury which is accidental injury. Under the plain language of the statute, what must be accidental is the injury and not the activity giving rise to the injury. The activity giving rise to the injury need only arise out of and in the course of the employment . . .” Id. The Court of Appeals stated in the Harris opinion: “consequently what must be unexpected, unintended, or unusual is the resulting injury and not the activity of which the injury arises”.
In Harris, Ms. Harris was injured when she bent down to tie up the bag of soap powder. At that point her back cracked and she screamed. Id. at 26. The Court of Appeals held that “in the instant case, Mrs. Harris’s injuries occurred by chance and were completely unexpected and unintentional”. Id. at 37. The Court went on to find an accidental injury under the Maryland statute.
The Court of Appeals, in Harris, cited Professor Francis Bohlen in an “oft-cited article,” A Problem in the Drafting of Workmen’s Compensation Acts, 25 Harv. L. Rev. 328, 340, 343 (1912). “Since the case of Fenton vs. Thorly, nothing more is required then that the harm that the plaintiff has sustained shall be unexpected. It is no longer required that the causes external to the Plaintiff himself, which contributes to bring about his injury, shall be in any way unusual; it is enough that that the causes, themselves known and usual should produce a result which on a particular occasion is neither designed nor expected. The test as to whether an injury is unexpected and so if received on a single occasion occurs by accident, in that the sufferer did not intend or expect an injury would on that particular occasion result from what he was doing . . . the element of unexpectedness, inherent in the word accident is sufficiently supplied either if the incident itself is unusual, the act or condition encountered abnormal or if, though the act is usual and the condition normal, it caused a harm unforeseen by him who suffers it”. Harris at 53 (citations omitted).
Finally, the Court of Appeals after again citing with approval the Bohlen law review article lists several out of state cases where there was not an unusual strain or exertion requirement including The McManus’ Case, 328 Mass 171, 173, 102 N.E.2d 401, 402 (1951). In McManus, the Claimant had sustained a strain as he stooped over to pick up a hose that he was using in the course of employment as a porter. The court in that case ruled “a back injury causally connected with the employment is a compensable injury under the act . . . and need not necessarily result from unusual force or exertion . . . a strain caused merely by stooping down or bending over in the course of employment entitles the employee to compensation for the resulting incapacity…The injury is covered if it was the sudden result of the routine performance of work activity.” Harris at 56-7. The Harris court then cites the proposition that “nothing more is required then that the harm that the plaintiff has sustained shall be unexpected…. It is enough that the causes themselves known and usual should produce a result which on a particular occasion is neither designed nor expected.” Harris at 56 citing Carroll v. Industrial Commission of Colorado, 69 Colo. 473, 475, 195 P. 1097-98 (1920).
Based upon the language of Harris and the article by Professor Bohlen, the first element of accidental personal injury, accidental injury, is easily met. Accidental injury requires that the injury, not the activity, be unexpected, unintended or unusual. The activity of crouched down to put customers paperwork in the glove box and leaned forward and then back onto my haunches and felt a pop in my knee and immense pain immediately easily fits this description. It was certainly unexpected that the mere activity of crouching down to put customers paperwork in the glove box and leaning forward and then back onto my haunches would result in an injury to the claimants knee. In fact the factual scenario in Harris is almost identical to the factual scenario here. In Harris, Ms. Harris was injured when she bent down to tie up the bag of soap powder. At that point her back cracked and she screamed. In our case, the claimant crouched down to put customers paperwork in the glove box and leaned forward and then back onto my haunches and felt a pop in my knee and immense pain immediately. The only difference is in Harris she bent and in our case the claimant crouched.
In addition to the requirement of an accidental injury there are two other elements in order to sustain an accident personal injury and those elements include, arising out of the employment and the second element is in the course of the employment.
The easiest to deal with in this particular case is the requirement of “in the course of.” An injury arises “in the course of” employment when it occurs during the period of employment at a place where the employee reasonably may be in the performance of his or her duties and while he or she is carrying out those duties for something incident thereto. Hampton Construction Company v. Beccio, 92 Md. App 452, 608 A.2d, 1264 (1992). The words “in the course of” refer to the time, place and circumstances under which an injury occurred. Miller v. Coles, 232 Md.522, 194 A.2d, 614 (1963). In this particular case this particular injury took place on Thursday, November 14, 2013 when claimant was performing normal duties at work, delivering a sold vehicle on the premises to a customer and crouched down to put customers paperwork in the glove box and leaned forward and then back onto my haunches and felt a pop in my knee and immense pain immediately. Therefore, there can be no argument that this accident did not arise in the course of the employment. See attached Interrogatories and Workers Compensation Transcript
The last element of accidental personal injury is the “arising out of” element. “Arises out of” refers to the causal connection between the employment and the injury. An injury arises out of employment when it results from some obligation, condition, or incident of employment. Montgomery County v. Wade, 345 Md. 1, 9-10, 690 A.2d 990, 994 (1996). The phrase “‘arises out of’ requires, not that the performance of an employment-related task be the direct or physical cause of the injury, but, more broadly, that the injury be incidental to the employment, such that it was by reason of the employment that the employee was exposed to the risk resulting in the injury.” Mulready v. University Research Corp., 360 Md. 51, 57, 756 A.2d 575, 578 (2000). Livering v. Richardson’s Restaurant, 374 Md. 566, 823 A 2d 687 (2003).
The Mulready case stands for the proposition that Maryland has adopted the positional-risk test as opposed to the increased risk test. Mulready at 43.
‘[u]under the positional-risk test, ‘an injury arises out of employment if it would not have occurred if the employee’s job had not required him to be in the place where he was injured.Livering refers to Mulready for the definition of “arises out of.” In Livering:
“Judge Rodowsky, writing for the Court in Mulready, examined the different tests sometimes employed in determining ‘arising out of’ causation. He noted two tests — one known as the increased risk test and the other known as the positional-risk test. Id. at 59, 756 A.2d at 579. Explaining the difference between the two tests, he stated:
‘The increased risk test requires that ‘the employee be exposed to a quantitatively greater degree of risk than the general public.’ Under the positional-risk test, `an injury arises out of employment if it would not have occurred if the employee’s job had not required him to be in the place where he was injured.’’
Id., 756 A.2d at 579. The positional-risk test is a more liberal test than the increased risk test. See id. at 59, 756 A.2d at 579; Montgomery County v. Smith, 144 Md. App. 548, 557, 799 A.2d 406, 412 (2002). The positional-risk test is essentially a ‘but for’ test. Professor Larson succinctly states the test as follows: ‘an injury arises out of the employment if it would not have occurred but for the fact that the conditions and obligations of the employment placed [the employee] in the position where he [or she] was injured.’ A. Larson, Workers’ Compensation Law § 3.05 (2002); see also J.D. Ingram, The Meaning of ‘Arising Out of’ Employment in Illinois Workers’ Compensation Law, 29 J. Marshall L. Rev. 153, 158 (1995) (noting that under the positional-risk test ‘an injury is compensable if it would not have happened ‘but for’ the fact that the conditions or obligations of the employment put the claimant in the position where he was injured’).
Maryland has adopted the positional-risk test to determine whether an injury arose out of employment. See Mulready, 360 Md. at 66, 756 A.2d at 583; Wade, 345 Md. at 11, 690 A.2d at 994; Knoche, 282 Md. at 455-57, 385 A.2d at 1183-84. In Mulready, in the context of a traveling employee, we noted that ‘[u]under the positional-risk test, ‘an injury arises out of employment if it would not have occurred if the employee’s job had not required him to be in the place where he was injured.’’ 360 Md. at 59, 756 A.2d at 579. In that case, a traveling employee sustained an injury after slipping in a hotel bathtub. Id. at 53-54, 756 A.2d at 576. Mulready was staying in the hotel to conduct employer business but was not actively engaged in work at the time of her injury. The parties agreed that her injury occurred in the course of her employment but disputed whether it arose out of that employment. We reasoned that her personal act of bathing was reasonably incidental to the travel required by her employer. Id. at 66, 756 A.2d at 583. In effect, but for her travel, Mulready would not have been injured. We held that her injury, resulting from an incident of her employment, arose out of employment.

‘[U]under the positional-risk test, ‘an injury arises out of employment if it would not have occurred if the employee’s job had not required him to be in the place where he was injured. Claimant states he was working on Thursday, November 14, 2013 performing normal duties at work, delivering a sold vehicle on the premises to a customer and crouched down to put customers paperwork in the glove box and leaned forward and then back onto my haunches and felt a pop in my knee and immense pain immediately. Claimant would not have been crouched down to put customers paperwork in the glove box and leaned forward and then back onto my haunches unless he was required as part of his job as salesman, to help clients including making sure they had all of their paperwork before they left the car dealership after they purchase a vehicle. The Appellant argument on page 3-8 of his cross motion for summary judgment is the relitigation of an issue of positional-risk test as opposed to the increased risk test already decided by the Court of Appeals in Mulready v. University Research Corp., 360 Md. 51, 57, 756 A.2d 575, 578 (2000). Livering v. Richardson’s Restaurant, 374 Md. 566, 823 A 2d 687 (2003). Wade, 345 Md. at 11, 690 A.2d at 994; Knoche, 282 Md. at 455-57, 385 A.2d at 1183-84. The Court of Appeals has rejected the increased risk test which Appellant is again arguing. It does not matter that the activity claimant was doing when he got hurt is no different than most people do several times during a normal day. Further, it does not matter that the claimant could have handed the papers to the customer in some other method. Appellant cites no case or statute which would bar claimant’s recovery.
Finally, in, Harris v. Board of Education of Howard County, 375 Md. 21, 825 A.2d 365 (2003), the Court of Appeals in the last paragraph of the opinion overrules the cases cited by the Appellant on pages 6 and 7 including Consol Engineering Co v. Feikin and Scherr v. Miller
The Employer and insurer next raise the defense that the injury to the claimant’s knee was due solely to an idiopathic condition and therefore is not compensable. When the employee has a preexisting physical weakness or disease, this employment contribution may be found either (1) in precipitating the effects of the condition by strain or trauma-aggravation of a preexisting condition case-always compensible, or (2) in placing the employee in a position which aggravates the effects of a fall due to the idiopathic condition- idiopathic condition cases-sometimes compensable. Franquet v. Imperial Management Corp., 27 Md. App 653 (1975).
Example #1 above was held compensable in Dickson Construction & Repair Company v. Beasley 146 Md 568, 126 A.907 (1924) The Court of appeals stated, “It has been established that when disease and or infection is so set in motion or aggravated by an injury that disabilities result which would not otherwise have occurred, such disabilities are to be treated as the result of said injuries.” The employee is entitled to all of the benefits under the Workers Compensation statute that are proximately related to the injury on the job even if the injury magnifies or aggravates a pre-existing injury. Maryland Workers Compensation by Clifford Sobin Section 5.2. In these type of cases the work related accident happens first and then aggravates a pre-existing condition
Example#2 was held compensable under limited circumstances in Franquet v. Imperial Management Corp. Franquet established that generally, workmen’s compensation benefits are recoverable for effects of an idiopathic fall if employment places the employee in a position increasing the dangerous effects of such a fall. Franquet v. Imperial Management Corp., 27 Md. App 653 (1975). The Franquet Court based much of its reasoning on Larson’s treatise Workmen’s Compensation Law s 12, ‘Risks Personal To The Employee. “Injuries arising out of risks or conditions personal to the claimant do not arise out of employment unless the employment contributes to the risk or aggravates the injury. When the employee has a preexisting physical weakness or disease, this employment contribution may be found either in placing the employee in a position which aggravates the effects of a fall due to the idiopathic condition, or in precipitating the effects of the condition by strain or trauma.” In the idiopathic cases the pre-existing condition leads to the work related accident unlike in the aggravation of a pre-existing condition case where the accident happens first and then the condition gets worse.
In CAM Const. Co., Inc. v. Beccio an employee tripped and fell while walking down a dark corridor in a building under construction, and because he was carrying blueprints, a tape measure, and other tools he was unable to break his fall, and hit his head on a wall. CAM Const. Co., Inc. v. Beccio, 92 Md. App 452, 453 (1992). The court reasoned that a central provision of the workers’ compensation law imposes liability upon an employer only where there is a causal connection between the accidental injury and the employment. Thus, the accidental injury must be substantially contributory, though it need not be the sole or proximate cause. Id. at 459-60 (citing Watson v. Grimm, 200 Md. 461, 464 (1952). Thus, the court concluded an injury resulting from both an idiopathic condition and an accidental injury could be found compensable by the trier of fact. Id. at 465. The court held an injury is compensable if the employment placed the employee in a position which aggravated the effects of a fall due to the idiopathic condition. Id. at 463 (citing Bethlehem Steel Co. v. Jones, 222 Md. 54 (1960)). The court based much of its reasoning on M. Pressman, Workmen’s Compensation in Maryland (1977), which explained, “General discussions of idiopathic causes of on-the-job injuries . . . indicate that the central question is not the nature of the idiopathic condition, but whether the employment in any way increased the severity of the employee’s injury.” Id. at 464. The court concluded, “To bar the claimant from recovering compensation, the idiopathic condition must be the sole cause of the injury. It is not sufficient that it is a contributing cause.” Id. at 465.
Just as in each of these cases, MARC W. EIJGELSHEIM ‘S employment necessarily increased the effects of any idiopathic condition. MARC W. EIJGELSHEIM’S injury resulted from crouching down to put customers paperwork in the glove box and leaned forward and then back onto my haunches, thereby injuring his knee. Even if MARC W. EIJGELSHEIM had a pre-existing knee disorder, it was the act of crouching down to put customers paperwork in the glove box and leaned forward and then back onto my haunches caused the injury to his knee. Marc W. Eijgelsheim ‘s knee injury was caused by his employment necessarily placing him next to a car crouching down to put customers paperwork in the glove box and leaned forward and then back onto my haunches. These dangers were particular to that employment setting and unique from the dangers of the general environment. Thus, Marc W. Eijgelsheim ‘s knee injury should be compensable.

Marc W. Eijgelsheim would first argue that the employer and insurer have provided no evidence that the injury to Marc W. Eijgelsheim was caused by an idiopathic condition. The only evidence presented was that Marc W. Eijgelsheim testified at the workers compensation commission as well as in his answers to interrogatories as to an occasional pop in knee, no pain and no treatment. See answer to interrogatory # and Workers compensation transcript .No expert testimony was presented that the injury sustained on November 14 2013 was due to any idiopathic condition or due to a preexisting knee condition. Mere argument by counsel, without expert testimony as to causal relationship is not sufficient.

The claimant would next argue that the compensability of injuries on the job caused by idiopathic conditions would be upheld by today’s Court Of Appeals. The Court of Appeals of Maryland has not had the opportunity to revisit the idiopathic injuries line of cases since its decisions in two seminal cases – Mulready and Harris.
Accidental personal injury is defined as “an accidental injury that arises out of and in the course of employment.” Md. LABOR AND EMPLOYMENT Code Ann. § 9-101(b)(1). This definition provides three elements that must be satisfied, namely: 1) accidental injury; 2) arising out of the employment; and 3) in the course of employment. Harris. Injuries occurring during normal working hours traditionally termed “idiopathic” have raised difficulty in establishing the first two of these elements.
The Court of Appeals of Maryland’s treatment of both the elements of accidental injury and arising out of the employment has developed significantly since the Court’s last opportunity to consider Idiopathic Injuries. First, in 2000 the Court altered the test applied to determine whether a injury arises out of the employment in Mulready v. University Research Corp. Subsequently, the Court redefined “accidental injury” in its 2003 Harris v. Board of Educ. of Howard County decision. Considering these landmark changes in Maryland’s Workers’ Compensation Law, it is clear the Court will overrule the Idiopathic Injury line of cases upon its next opportunity to reconsider.
A. Mulready rejected the Increased Risk Test and adopted the Positional-Risk Test for determining whether an injury arose out of employment
In Mulready v. University Research Corp. the Court of Appeals of Maryland considered whether an injury was one that arises out of employment when an employee was attending a seminar on behalf of her employer and was injured when she slipped in her hotel bathtub. Mulready v. Univ. Research Corp., 360 Md. 51, 55 (2000).
The positional-risk test, on the other hand, required only that the injury would not have occurred if the employment had not required the employee to be in the place where the injury occurred. The court explained the potential-risk test required the connection between employment and injury not to be the sole cause, but only a contributory cause of the injury. The employee’s injury need only be incidental to his or her employment and the employment be a “contributing cause” to the injury to satisfy the positional-risk test.
This holding includes injuries suffered as a result of common perils of everyday life or purportedly personal acts. As a result, the court adopted a but for causation test for determining whether an injury arises out of employment.
B. Harris redefined accidental injuries compensable under the Workers’ Compensation Act.
For years, the Court of Appeals required an unusual activity in order for a claim to be compensable. However, Harris eliminated this requirement when it held under the plain language of the statute, what must be accidental is the injury and not the activity giving rise to the injury. The Harris Court stated, “[W]hat must be unexpected, unintended, or unusual is the resulting injury and not the activity of which the injury arises.” The Harris Court overruled a line of cases to hold an injury is not required to have resulted from an “unusual activity” to be covered as an “accidental injury” under the Workers’ Compensation Act.
Were the Court to revisit the Idiopathic Injury line of cases today, it would conclude, just as it did in Harris, that the language and reasoning traditionally relied upon in Maryland to exclude Idiopathic Injuries as an exception to coverage was incorrectly read into the language of the Workers’ Compensation Statute.
Applying the reasoning and holdings of the Court in both Mulready and Harris it is apparent an Idiopathic Injury occurring in the course of employment qualifies as an accidental injury arising out of the employment. An injury related to conditions personal to an employee can easily be both unexpected and unintended. Additionally, the Positional Risk Test finds compensable injuries resulting from the common perils of everyday life and personal acts. An injury occurring in the course of employment and resulting from a risk personal to the employee would not have occurred had the employment not required the employee to be where the injury was suffered at the time of the injury. Lastly, nothing in the language of the Act explicitly excepts injuries resulting from an idiopathic condition, from a handicap personal to the employee, from compensability.
C. The language of the Workers’ Compensation Act does not specifically address the compensability of Idiopathic Injuries.
Looking first to the language of the Act, an “accidental personal injury” is defined as “an accidental injury that arises out of and in the course of employment.” Md. Code Ann., Lab. & Empl. § 9-101(b)(1). The Act provides only a narrow category of exceptions to accidental injuries under § 9-506 Prohibition of compensation. These exceptions include injuries that are intentionally inflicted as well as injuries caused solely by the effect of a drug not administered or taken in accordance with the prescription of a physician, solely or primarily by intoxication, primarily by the effect of a controlled dangerous substance, or caused by the willful misconduct of the covered employee. The language of the statute contains no mention of an idiopathic condition or injury exception to compensability. This observation is crucial when paired with the Court of Appeals of Maryland’s “often-repeated principle” that it will not add or delete words in order to give the Act a meaning not otherwise communicated by the Act’s language.

 



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