Are Workers Compensation Settlements And Awards Marital Property Under Maryland Divorce Laws?

Are workers Compensation settlements and awards marital property under Maryland Divorce laws?

The purpose of this article is to determine whether a worker’s compensation settlement or award is considered Marital property under the Maryland Marital Property act and therefore subject to splitting between spouses if they are divorced. The appellate courts have interpreted the Maryland Marital Property act to conclude the following with regard to workers compensation benefits:

The date of accident and the date of the award are not determinative.
If an employee is injured prior to a marriage and obtains all of his/her workers compensation benefits before they are married, those workers compensation benefits are not marital property subject to distribution by the courts even if some or all of the benefits remain unspent during any time during the marriage.
If an employee is injured on the job prior to the marriage, and if the award made after the marriage compensates for lost premarital or after divorce- post-marital wages or for medical expenses paid from non-marital assets funds, then the award should be characterized as non-marital.
If an employee is injured prior to a marriage and obtains some of his workers compensation benefits before the marriage and some of his workers benefits during the marriage, those workers compensation benefits received before the marriage are not marital property even if they continue to exist after the marriage. However, any other workers compensation benefits actually paid after the marriage and actually paid and received by the employee up until the time of the divorce are marital property, whether those benefits are for temporary total or a permanent injury award or a full and final settlement
If an employee is injured prior to a marriage and obtains some of his workers compensation benefits before the marriage, some of his workers compensation benefits during the marriage, and some of his workers compensation benefits after the date of the divorce decree those workers compensation benefits received before the marriage are not marital property even if they continue to exist after the marriage. However, any workers compensation benefits actually paid after the marriage and actually paid and received by the employee up until the time of the divorce are marital property, whether those benefits are for temporary total or a permanent injury award or a full and final settlement. With regard to any benefits received by the employee after the divorce decree, the workers compensation benefits can be either marital property or non- marital property. The part of the benefit that is marital property is any money paid, awarded or as a result of a full and final settlement that are paid for the purpose of lost wages also known as temporary total for periods that were paid to cover periods of lost wages or temporary total that occurred during the period the parties were married. In addition, medical expense reimbursements for previously paid medical expenses from marital assets are marital property. Marital property any permanent injury award that would accrue during the period the parties were married.
Awards for a permanent injury award whether for a scheduled member or under other cases for injuries that occurred during the marriage, can be both marital property and non-marital property. The awards are weekly and begin and end on a day certain. Any benefits awarded for a permanent injury that cover periods during the marriage even if the award is after the divorce is marital property. Any part of the permanent injury award that covers periods after the divorce is not marital property.
When an injured party receives a permanent injury award, the award is backdated to the date of last compensation paid. If an injured party attends a workers’ compensation hearing after they are divorced, the award made for permanency may be backdated so that a portion of the permanency award will cover a period during the marriage. Therefore, as part of the divorce hearing, the lawyers should anticipate the possibility of a workers’ compensation award being backdated and include that as part of the calculation of a marital property award.
Awards for loss of earning capacity that are ordered for periods during the marriage are marital property. Part of permanency award will be considered marital property if payments are ordered for periods that include the dates the parties were still married.
If the Injured employee enters into a stipulation with the employer and insurer, it normally includes temporary total dates and the amount of the permanent injury award and when the award starts. The workers compensation commission will pass an award consistent with the parties’ stipulation and then normally the divorce court can follow the procedure as outlined in number 5 above.
When an injured worker receives a full and final settlement, the process gets more complicated, even though the principles are the same. A full and final settlement unlike a permanent injury award issued after a hearing, is usually for one lump sum of money and does not explain how the parties arrived at the agreed upon settlement amount. Full and final settlements are often used in contested cases, where the parties cannot agree on issues of whether the claim is compensable, whether a specific body part or treatment is related or whether there is any disability and the amount. Full and final settlements are also used to close out cases and end all litigation. Each party to the settlement process has a different interpretation of the benefits that the claimant might receive. A settlement is a compromise of those issues. When trying to decide what part of the settlement is for benefits that might be considered marital property, the same principles as above apply, but how to figure out which portions of the settlement are for benefits before, during or after the marriage is more difficult. The lawyer who prepares the settlement agreement on behalf of the employee who is having marital problems should consider some language in the agreement outlining, what portion is for benefits that would have been paid during the marriage for lost wages, medical expenses reimbursements for previously paid medical expenses from marital assets , and weekly benefits from the permanency award up to the date of divorce, and what parts of the settlement is for benefits for a permanent injury award that would not cover periods during the marriage as outlined in #5.If the lawyer does not do such an allocation in the settlement agreement, then expert testimony may be necessary to present to the divorce court as to how the settlement money should be apportioned. I will outline what form that expert testimony might look like later in this article. Even if the settlement agreement provides a breakdown, the court may still set aside the apportionment, if counsel attempts to apportion the amount in a matter inconsistent with the facts of the case.
Workers Compensation benefits, that are not considered marital property,( award made after the marriage compensates for lost premarital or after divorce- post-marital wages or for medical expenses paid from non-marital assets funds, any part of the permanent injury award that covers periods after the divorce is not marital property) together with other income of a spouse, may be considered when determining what, if any, maintenance to award to the other spouse, (alimony or child support) but the nonworking spouse is not entitled to any specific portion of the future income from the worker’s disability compensation.

The above principles are based upon the following statutes and case law.

The State of Maryland Marital property act states when parties get divorced, they may be required to divide up assets and income sources even if only titled in one spouses name. The law recognizes that when parties marry, they agree on issues like who will work and how many hours vs who may stay home, however this decision- making process should not affect the financial positions of the parties if their marriage fails. The law attempts to protect both spouses and to equal out the distribution of assets acquired during the marriage no matter who earned them or how they are titled.

The case of Dennis Gordon v. Patricia Gordon 174 Md. App. 583, 923 A.2d 149 (2007) cites Maryland Code § 8-201(e) of the Family Law Article (“F.L.”), explains what is marital property and what is not marital property.

(e) Marital property. —

(1) “Marital property” means the property, however titled, acquired by 1 or both parties during the marriage…

(3) Except as provided in paragraph (2) of this subsection, “marital property” does not include property:

(i) acquired before the marriage;

(ii) acquired by inheritance or gift from a third party;

(iii) excluded by valid agreement; or

(iv) directly traceable to any of these sources.

Maryland Code § 8-205. of the Family Law Article

Marital property — Award.

(a) Grant of award. — (1) Subject to the provisions of subsection (b) of this section, after the court determines which property is marital property, and the value of the marital property, the court may transfer ownership of an interest in property described in paragraph (2) of this subsection, grant a monetary award, or both, as an adjustment of the equities and rights of the parties concerning marital property whether or not alimony is awarded.

It is well settled that, when a party petitions for a monetary award, the trial court undertakes “a three-step process which may culminate in a monetary award.” Alston v. Alston 331 Md. 496, 629A.2d 70 (1993); see F.L. §§ 8-203, 8-204, 8-205. See also First, for each disputed item of property, the court must determine whether it is marital or nonmarital. F.L. §§ 8-201(e)(1); 8-203; 8-205(a)(1). Second, the court must determine the value of all marital property. F.L. §§ 8-204; 8-205(a)(1). Third, the court must decide if the division of marital property according to title would be unfair; if so, the court may make a monetary award to rectify any inequity “created by the way in which property acquired during marriage happened to be titled.” Doser 106 Md. App. At 349; see F.L. § 8-205(a)(1);

Before making a monetary award, the court is required to consider the numerous statutory factors set forth in F.L. § 8-205(b).

Maryland Code § 8-205(b) of the Family Law Article provides

(b) Factors in determining amount and method of payment or terms of transfer. — The court shall determine the amount and the method of payment of a monetary award, or the terms of the transfer of the interest in property described in subsection (a)(2) of this section, or both, after considering each of the following factors:

(1) the contributions, monetary and nonmonetary, of each party to the well-being of the family;

(2) the value of all property interests of each party;

(3) the economic circumstances of each party at the time the award is to be made;

(4) the circumstances that contributed to the estrangement of the parties;

(5) the duration of the marriage;

(6) the age of each party;

(7) the physical and mental condition of each party;

(8) how and when specific marital property or interest in property described in subsection (a)(2) was acquired, including the effort expended by each party in accumulating the marital property or the interest in property described in subsection (a)(2) of this section, or both;

(9) the contribution by either party of property described in § 8-201(e)(3) of this subtitle to the acquisition of real property held by the parties as tenants by the entirety;

(10) any award of alimony and any award or other provision that the court has made with respect to family use personal property or the family home; and

(11) any other factor that the court considers necessary or appropriate to consider in order to arrive at a fair and equitable monetary award or transfer of an interest in the pension, retirement, profit sharing, or deferred compensation plan, or both.

In the case of David M. Queen v. Dora M. Queen. 308 Md. 574, 521 A.2d 320 (1987) the primary issue in this case was whether a lump sum workers’ compensation award for permanent partial disability for injury sustained during the marriage constitutes marital property within the contemplation of § 8-201(e).

David and Dora Queen were married on October 26, 1964 and had three children during the course of their nearly twenty-year marriage, On July 23, 1984, the wife filed a complaint for a divorce a vinculo matrimonii from the husband. On April 28, 1982, before the initial separation, the husband sustained an injury to his neck and shoulders while working as an assistant pressman. The husband received $276.70 per week in workers’ compensation benefits from May 1982 to September 1983; the benefit amount was then reduced to $143.32 per week from September 1983 to June 1984. On June 18, 1984, the husband received a lump sum permanent partial disability settlement of $60,000, less $5,000 in attorney’s fees and costs. The husband deposited the award in a separate bank account in his name only. The Circuit Court for Calvert County granted the wife’s prayer for absolute divorce on August 12, 1985. The court determined that the lump sum permanent partial workers’ compensation award was marital property. The husband appealed, challenging the marital property award.

The Maryland Court of Appeals analyzed cases from other jurisdictions including, Mosley v. Mosley, 682 S.W.2d 462 (Ky. Ct. App. 1985), where the court held that the husband’s workers’ compensation benefits, which had not been received prior to dissolution of the marriage, were not marital property. The court stated:

“Workers’ compensation benefits are based on something that happened while one was employed and, although the event may have occurred during the time of the marriage, the compensation is awarded to replace the injured or diseased employee’s loss of ability to work in the future. The benefits are not earned as compensation for working; they are paid to assist workers who will have diminished future earnings due to a work-caused injury or disease. Payments that are received, or weekly benefits that have actually accrued but have not yet been paid as of the date of the dissolution of the marriage, are to be included as marital property, just as earned income. But, payments which accrue and are paid after the dissolution of the marriage are not part of the marital property any more than the worker’s future earnings would be. Compensation benefits, together with other income of a spouse, may be considered when determining what, if any, maintenance to award to the other spouse, but the nonworking spouse is not entitled to any specific portion of the future income from the worker’s disability compensation. at 463 …

The other case the Maryland Court of Appeals relied on in Queen was the Supreme Court of Idaho in Cook v. Cook, supra, 637 P.2d at 802:

“[S]ince workmen’s compensation is paid to make good the impairment or loss of an individual’s future capacity to earn, the community cannot lay claim to the whole of the benefit where it compensates for a period of disability which extends beyond the time of divorce. To hold otherwise would result in the deprivation of an individual’s basic source of financial security. The dispositive question in classifying workmen’s compensation benefits as community or separate property, therefore, is not whether the right to receive benefits vested during marriage, but rather to what extent the award compensates for loss of earning capacity during marriage.”

The Maryland Court of Appeals adopted the argument of the above two cases from Idaho and Kentucky finding, “In determining whether the permanent partial disability award at issue in this case is marital property “acquired” during the marriage, we consider not only the date of the award, but also the nature of the benefit which it represents. Jackson v. Bethlehem-Fairfield Shipyard, 185 Md. 335, 339, 44 A.2d 811 (1945). Differentiating between temporary and permanent disabilities, several courts have observed that temporary disability payments are a substitute for lost wages during the temporary disability period, while permanent disability is for permanent bodily impairment and is designed to indemnify for the insured employee’s impairment of future earning capacity. Thus, these courts indicate that permanent disability is not based solely on loss of wages, but is based on actual incapacity to perform the tasks usually encountered in one’s employment, and on physical impairment of the body that may or may not be incapacitating. See In re Marriage of Robinson, supra, 54 Cal. App.3d at 685-86, 126 Cal. Rprt. 779; Russell v. Bankers Life Co., 46 Cal. App.3d 405, 415-16, 120 Cal. Rprt. 627 (1975).

The record in this case discloses that the husband sustained an injury to his neck and shoulder causing permanent partial disability. Article 101, § 36(3)(a) defines such a disability as one “partial in character but permanent in quality….” It is clear that both permanent partial “scheduled” injuries — those that result in loss or loss of use of a specific, listed, member of the body, such as a thumb, foot, or an eye — and nonscheduled injuries, such as back injuries, involve a loss of the employee’s future earning capacity.[5] See Giant Food, Inc. v. Coffey, 52 Md. App. 572, 451 A.2d 151 (1982), cert. denied, 295 Md. 283 (1983). Thus, the husband’s lump sum permanent partial disability award in the present case represents an amount based on the loss of future earning capacity and not merely upon the loss of wages.

Turning to the facts of the present case, we note that the award was received approximately one year before the couple divorced. We hold that only the portion of the husband’s award compensating for loss of earning capacity during the marriage is marital property subject to equitable distribution by the trial judge. Due to the personal nature of the injuries giving rise to a permanent partial disability award, we cannot conclude that the General Assembly intended a non-injured spouse to share in the compensation for the injured spouse’s loss of future earning capacity representing a time period beyond the dissolution of the marriage.

The court then remanded the case back to the Circuit Court to determine what part of the settlement was marital property and then do the weighing process provided in the Maryland marital property act. The court gave no guidance as to how this was to be accomplished.

In Lowery v. Lowery 113 Md App.423, 688 A.2d.65 (1997) Mr. Lowery appealed from a judgment of the Circuit Court for Allegany County granting his ex-wife, Patricia A. Lowery, a monetary award of $27,748.50 as part of the winding-up of the dissolution of their marriage. (In Lowery, the injury was before the marriage and settlement was during marriage but included benefits to be paid after the divorce. In addition, the settlement did not allocate how the parties arrived at a settlement amount.)) Mr. Lowery objects to the circuit court’s characterization as marital property of a portion of the workers’ compensation settlement he received related to an injury sustained prior to the date on which the parties were married. Although we agree in principle with the circuit court’s determination that the portion of a workers’ compensation settlement that provides compensation for lost wages or future earning capacity constitutes marital property, we conclude that the evidence adduced on this matter failed to establish which portion of the settlement at issue qualified as marital property. Therefore, we shall vacate the judgment of the circuit court and remand this case for further proceedings not inconsistent with this opinion.

The issue in the Lowery case were

Whether the settlement of workers’ compensation claims related to an injury which occurred prior to the parties’ marriage constitutes marital property subject to distribution in a divorce proceeding.
Whether the trial court abused its discretion by granting Mrs. Lowery a monetary award of $27,748.50 because she failed to present sufficient evidence to establish which portion of the workers’ compensation settlement was marital property.

The Lowery’ s were married in Tennessee on 7 January 1982. Soon thereafter, they established residence in Allegany County, Maryland. The parties’ final separation occurred on 31 July 1994.Mr. Lowery had been employed with Kelly-Springfield Tire Company (Kelly-Springfield) for twenty-six years, from June 1961 through June 1987. The settlement proceeds that form the basis of the instant controversy stem from a rotator cuff injury Mr. Lowery suffered while at work on 26 September 1976 before the parties married. Mr. Lowery filed a Complaint for limited divorce on the grounds of desertion and constructive abandonment on 1 August 1994. On 12 April 1995, appellant entered into an Agreement of Final Compromise and Settlement in settlement of his workers’ compensation claim. The agreement explicitly provided that it was a settlement of all claims that Mr. Lowery might have for an injury he sustained on or about 26 September 1976. Under the terms of the settlement, appellant received a lump sum payment of $7,500 and monthly payments of $500.00 for his life. The agreement guaranteed that under the annuity, Mr. Lowery, or his estate, would receive a minimum aggregate amount of at least $120,000, payable in monthly increments of $500.00 over a period of twenty years. The agreement, however, did not elaborate on whether its purpose was to compensate Mr. Lowery for lost wages or earning capacity, medical expenses, disfigurement, etc. Moreover, the agreement did not specify the period of lost wages or earning capacity that it was designed to cover.

On 12 May 1995, the court entered a Judgment of Absolute Divorce and stated $44,000 of appellant’s 12 April 1995 workers’ compensation settlement constituted marital property. The court concluded that the $44,000 sum was compensation to Mr. Lowery for loss of his earning capacity during the marriage. Mr. Lowery filed an appeal.

Mr. Lowerys initial contention is that his workers’ compensation settlement was not marital property because it was compensation for an injury which occurred before the parties were married. And…Because the injury occurred before the marriage, his claims, and the property rights derived therefrom, were acquired by appellant before the parties were married. Because marital property does not include property acquired before the marriage, Mr. Lowery contends that his workers’ compensation claims, and the settlement check and annuity directly traceable to them, were not marital property.

The essence of appellant’s position is that the time of the accrual of the right to recovery should be determinative as to whether a workers’ compensation claim is marital property. Because his injury occurred and his accompanying right to assert a workers’ compensation claim accrued prior to the parties’ marriage, appellant argues that the 1995 settlement which relates to that injury should not be characterized as marital property.^[Mr. Lowery essentially asks this Court to adopt what has become recognized as the “mechanistic approach” for determining whether a workers’ compensation settlement or award should be characterized as marital property. Under this approach, a workers’ compensation settlement or award is deemed marital only if the right to assert the claim accrued during the marriage. (this approach was rejected by court)

Nevertheless, a closer examination of the Maryland Court of Appeals’ opinion in Queen indicates that the approach taken in Drone, and advocated by appellant here, does not comport with Maryland jurisprudence on this question. In its holding, the Queen Court in Queen v. Queen, 308 Md. 574, 521 A.2d 320 (1987) chose, instead, to focus on the purpose of the benefits as being determinative of whether a particular workers’ compensation settlement or award was marital property. The Queen Court determined that to the extent that a workers’ compensation award compensates for loss of earning capacity during the marriage, it is marital property.

In determining whether the permanent partial disability award at issue in this case is marital property “acquired” during the marriage, we consider not only the date of the award, but also the nature of the benefit which it represents. Id. at 585, 521 A.2d at 326.

Accordingly, the Court in Queen v. Queen, 308 Md. 574, 521 A.2d 320 (1987) distinguished between a permanent disability and a temporary one, stressing that a permanent disability award is designed to compensate for a loss of future earning capacity. Jackson v. Bethlehem-Fairfield Shipyard 185 Md. 335,339, 44A.2d 811 (1945). Differentiating between temporary and permanent disabilities, several courts have observed that temporary disability payments are a substitute for lost wages during the temporary disability period, while permanent disability is for permanent bodily impairment and is designed to indemnify for the insured employee’s impairment for future earning capacity. Thus, these courts indicate that permanent disability is not based solely on loss of wages but is based on actual incapacity to perform the tasks usually encountered in one’s employment, and on physical impairment of the body that may or may not be incapacitating. See In re Marriage of Robinson, … 54 Cal.App.3d [682,] 685-86, 126 Cal.Rptr. 779 [ (1976) ]; Russell v. Bankers Life Co., 46 Cal.App.3d 405, 415-16, 120 Cal.Rptr. 627 (1975).Nonetheless, we hold that only the portion of the husband’s award compensating for loss of earning capacity during the marriage is marital property subject to equitable distribution by the trial judge. 308 Md. at 585-87, 521 A.2d at 326-27 (emphasis added). In addition, the Court concluded that the Legislature did not intend for the non-injured spouse to share in the injured spouse’s workers’ compensation award beyond the period the parties were married. Id. at 587, 521 A.2d at 327.

Based upon our examination of the language quoted above, we read Queen as holding that the purpose of the benefits, rather than the timing of the accrual of the underlying claim or the award/settlement, is determinative in characterizing a workers’ compensation settlement or award as marital or separate property. This method is now recognized as the “analytic approach.”… Thus, if the purpose of the settlement or award is to compensate a person for lost wages during the marriage or medical expenses previously paid from marital assets, then the settlement or award is characterized as marital property. Conversely, if the award compensates for lost premarital or post-marital wages or for medical expenses paid from separate funds, then the award should be characterized as non-marital.

Furthermore, our analysis of whether workers’ compensation benefits constitute marital property is not dependent on whether the benefits accrue to the employee in the form of an award by the Workers’ Compensation Commission or a settlement entered into by the parties that is ultimately approved by the Commission pursuant to Md. Code Ann., Labor & Employment § 9-722.

Based on our analysis of Queen and our examination of authority from other jurisdictions, we conclude that although Mr. Lowery’ s injury that apparently underlaid the settled claims occurred prior to the parties’ marriage, the ensuing workers’ compensation settlement/award would have been characterized as marital property to the extent that it compensated Mr. Lowery for lost wages or future earning capacity during the marriage or medical expenses paid for out of marital assets.

In a divorce proceeding, determining how much of the workers compensation settlement or award is marital property is often the most difficult issue to evaluate and resolve. If a worker’s compensation claim is tried by a commissioner, judge and or judge and jury, the commissioner, judge or jury will make a determination as to what money the injured party is entitled to and for what purpose whether it be for lost wages, medical expenses, vocational rehabilitation or for a permanent injury award and for what period these benefits will be paid. Insurance coverage amounts are rarely an issue.

If the worker’s compensation claim is not tried by a commissioner, judge and or judge and jury, and the claim is settled, then a division between marital and non-marital property is not clear-cut.

In Lowery v. Lowery 113 Md App.423, 688 A.2d.65 (1997) like several of the above cited cases, the appellate court attempted to deal with this issue , but found that there was insufficient information in the record and remanded the case back to the Circuit court to allow the parties a second chance to evaluate the part of the settlement that would be considered marital property. The court held “Although we agree in principle with the circuit court’s determination that the portion of a workers’ compensation settlement that provides compensation for lost wages or future earning capacity constitutes marital property, we conclude that the evidence adduced on this matter failed to establish which portion of the settlement at issue qualified as marital property. Therefore, we shall vacate the judgment of the circuit court and remand this case for further proceedings not inconsistent with this opinion.”…

Mr. Lowery further contends that even if his settlement is properly characterized as partly marital, Mrs. Lowery failed to meet her burden of proof as to which portion of the settlement qualified as marital property. He claims that appellee failed to produce any evidence as to which portion of the settlement constituted lost wages or future earning capacity.

Despite the trial court’s conclusions, we conclude that the record contained an insufficient factual predicate upon which the court could have based its conclusion that $44,000 of Mr. Lowery’ s settlement should be characterized as marital property. Although such evidence as was before the court implied that some portion of Mr. Lowery’ s settlement may have been impressed properly with a marital property interest, the imprecision of, and gaps in, that evidence undercut the finite calculus applied by the chancellor.

Where the non-injured spouse is claiming a portion of the other spouse’s workers’ compensation settlement or award as marital property, it is important for that spouse, and the court, to be able fully to explore and, if possible, label the components of the settlement or award as compensation for past lost wages, future loss of earning capacity, losses to the marital estate, future medical expenses, or damages for injury to the property or person. See, e.g., In re Marriage of Blankenship, 210 Mont.31, 682 P.2^nd 1354 (1984); Gibson-Voss, 4 Neb.App.at 241-42,541 N.W.2^nd at 78-78. Thus, although we shall vacate the judgment of the circuit court for the reasons stated, we are moved to remand this matter to the circuit court for further proceedings to re-determine an appropriate monetary award, if any. We presume that the parties, and particularly Mrs. Lowery, will be afforded the opportunity to engage in appropriate discovery, in advance of an evidentiary hearing, so that all available information bearing on this matter can be placed before the trial judge.

Based upon a series of cases to follow, the following guidelines would be appropriate to consider when trying to value the marital property portion of the settlement and or award:

Get an expert if possible- an experienced lawyer who has handled many workers compensation claims. An experienced workers compensation lawyer should be able to determine the range of likely results if the case had been tried before the commission. If the settlement involves both a worker’s compensation claims as well as a third party claim then get an expert who handles both personal injury claims as well as workers compensation claims. Such an expert will be equipped to evaluate both the range of likely results in a worker’s compensation claim as well as the range of possible results in a third-party case and how the two systems interact.
Whether you have an expert or not the following should be considered when evaluating a settlement that involves only a worker’s compensation claim
Review all medical record both before and after the accident
Review the workers compensation commission file for all prior awards, issues filed, claim forms, vocational rehabilitation reports, and medical records
Determine whether there were any issues that were being contested such as:
causal connection of a body part
Necessity of treatment
Causal relationship of treatment
Whether the accident was covered by workers compensation- contested case vs. accepted claim
Determine periods of paid and unpaid lost time from work
Obtain copies of any disability ratings obtained by claimant, insurance company and the Subsequent Injury Fund
Obtain copies of medical treatment for any unrelated treatment, injuries, congenital medical conditions etc, both before and after the accident
Review all vocational reports and medical reports to determine the likelihood of claimant going back to work as well as their relevant work history and wages.
Determine the exposure of the employer and insurer as well as the subsequent injury fund
Evaluate the potential for an award against the employer and insurer under the following scenarios: first tier, second tier, serious disability, permanent total.
Awards against the subsequent injury fund are only permanency awards
Awards against the subsequent injury fund are paid after the employer and insurer have paid all of the money they owe under the permanent injury award
Awards against the subsequent injury fund are paid for the effect that pre-existing medical conditions would have on the employee’s loss of earning capacity and therefore would appear to be non-marital property in nature, especially if paid after the divorce.
Once you have reviewed all of these records, determine the range of likely results if the case had been tried before the commission.
What was the likely percentage of the permanency award against the employer and insurer under the following scenarios: first tier, second tier, serious disability, permanent total and what would be the insurers cost if that happened.
What is the dollar amount of the permanency award and during what periods would it be paid?
What is the likelihood that claimant would reopen case for future worsening of permanent conditions and what would be the insurers cost if that happened
What would be the cost for future medical treatment?
What part of settlement was for past and future treatment?
Would vocational rehabilitation have been necessary? What are the costs involved in vocational rehabilitation?
Were there any periods of lost time from work owed in the past or likely to be owed in the future
Review and depose the worker’s compensation insurance adjuster and the worker’s compensation defense lawyer as to how they arrived at their evaluation.
Review all pleadings if the case is on appeal in the circuit court including depositions of parties, witnesses and experts, interrogatory answers and answers to request for production of documents
Review any demand letters
Review any medical set aside
Review the pretrial settlement statements filed by the parties
Once your expert has evaluated all of the above they will be able to give you an opinion as to what part of the settlement amount should be apportioned to marital and non-marital property components.
Whether you have an expert or not, if your workers compensation claim involves both a worker’s compensation award or settlement as well as settlement of a third-party claim in addition to the above steps you should consider review of the following and take into consideration.
Review all available documents
The demand letters
Affidavit in Support of Plaintiffs, Motion for Summary Judgment.
Complaint
Circuit Court of Maryland Case Information Search.
Pre-Trial Statement of Plaintiffs
Defendant’s Pre-Trial Statement Answers to Interrogatories
Medical Bill Summary
Depositions of all parties and witnesses
Deposition of all medical and liability experts
Reports of Vocational and Rehabilitation Counselor
Designation of Expert Witnesses
All Medical records and Doctors depositions
Police reports
Accident investigation reports
Insurance policies and declaration pages
A life care plan
economist evaluation as to his lost wages and lost wage capacity
determine the non-economic cap on pain and suffering, which included non-economic damages such as loss of consortium and pain and suffering
Did counsel in the demand letter put a dollar figure on loss of consortium damages
Whether the parties jointly were involved in separating and apportioning the settlement at the time of settlement
Depose the third- party adjuster to see what he considered when making his offer
Depose third- party opposing counsel as to what was considered when making his offer
Did the parties reach an agreement on how the monies were to be apportioned?
parties should be afforded the opportunity to engage in appropriate discovery, in advance of an evidentiary hearing, so that all available information bearing on this matter can be placed before the trial judge.
the proportion of the loss of consortium settlement proposed compared to the overall settlement;
whether a lawsuit was filed on behalf of the spouse or settlement demand made for loss of consortium;
the overall amount of recovery assigned to the loss of consortium claim;
the difficulty and cost of proving the employee’s damages versus loss of consortium;
the third-party defendant’s ability (usually insurance coverage) to pay the full value of the employee’s claim.
comparison of the amount asked for in each count of the complaint and converting that it to a percentage and then multiplying that percentage against the total recovery.
the fact that the adjustor handling the case for the third- party defendant in the case put little or no value into the loss of consortium claim when he valued the case.
comparison of the ad damnum clauses in the complaint
the value placed by the third- party adjustor on the loss of consortium, and the value placed by third party counsel for the defendant on the loss of consortium claim
the pretrial settlement statements filed by the parties,
answers to interrogatories outlining plaintiff’s damages,
amount of time spent at settlement conference or during settlement discussions outlining the facts of the loss of consortium vs. the injuries to the husband
testimony they gave on the damages issue.

These suggestions of how to evaluate and apportion a settlement where derived from a close reading of all of the below cases. While no case has given an exact formula, all of the cases point out the problem and attempt to offer some solutions.

ISSUE IV in the Herbert Newborn v. Donnie Newborn 133 Md. App.64, 754 A.2d 476 (2000) case was, “Did the trial court err by finding that the appellee met her burden in proving that a portion of the settlement was marital property?”

Additional facts in the newborn case: As the trial judge suggested, counsel for Mr. Newborn, post-trial, sent the judge certain documents that he evidently believed related to the issue to be decided. Those documents were: (1) demand letter dated January 28, 1980, to St. Paul Insurance Company from the attorney who represented the Newborns in their tort action; (2) Herbert Newborn’s interrogatory answers filed in the personal injury suit;

The demand letter from the Newborns’ tort counsel said that Mr. Newborn earned $8.80 per hour (presumably on the date he last worked). He gave no current lost-wage information but said that Mr. Newborn, then age forty-three, had twenty-two years remaining in his expected work life. Counsel calculated Mr. Newborn’s future lost wages as $264 per week ($8.80 X 30) or $13,728 per year (52 X $264). Based on those figures, he projected future lost wages of $302,000 ($13,728 X 22). Like, most demand letters, the letter from the Newborns’ attorney made no effort to downplay the seriousness of the injuries suffered by his clients. Taking into consideration his medical expenses to date, medical expenses he will have in the future, past and future wage loss, painful and disabling nature of his injuries, the damage it has done to the marital relationship and the wife’s loss of income, we hereby submit our demand for settlement of this case in the amount of $1,500,000.00.The letter explained that, although Ms. Newborn was not employed when the accident occurred, she would have sought employment but for the March 28, 1978, accident and would have earned between $7,657 and $7,957 annually.

Counsel put no dollar figure on loss of consortium damages but said: DAMAGE TO MARITAL RELATIONSHIP. Enclosed you will also find a copy of the report of Baltimore City Hospital dated January 25, 1980. This report sets forth not only the effect that this horrendous accident has had on Mr. Newborn, but the effect that it has had on Mrs. Newborn and their life together. Their sex life has been greatly disrupted due to Mr. Newborn’s injuries, and most specifically due to the urethral trauma. To this date, they have not yet resumed normal marital relations which they had enjoyed for over 20 years of married life.

The exact date that Mr. Newborn’s interrogatory answers were signed in the Newborns’ tort action does not appear in the record in this case, but it is evident that these answers were filed after September 1980—when Mr. Newborn went back to work as a longshoreman. Presumably because he had already returned to work, no claim for future lost wages was mentioned in the interrogatory answers, nor did Mr. Newborn claim that he would incur future medical expenses. The interrogatory answer listed past medical expenses of $13,726.55, and a claim for past lost wages was also mentioned. But the exact amount of that wage-loss claim cannot be ascertained because material relevant to it was attached to the original interrogatory answer but not attached to the answers provided to the trial judge in the case at bar.

The trial court in the subject suit resolved the marital property issues by an opinion and order dated October 30, 1998, which adopted the reasoning of Judge Chasanow set forth in Blake. The trial judge said: We find that the proper measure of marital interest in the settlement is the loss of consortium, medical expenses directly or indirectly paid by the [marital] entity, and lost wages prior to the breakup of the marriage. Our next question is to apportion the amount of the settlement to reflect what is marital and non-marital.

The medicals schedule clearly indicates $13,659 in medicals. The demand letter seeks $302,016 in lost wages, which would be both marital and non-marital, but, as usual, this is not reflected dollar for dollar in the settlement. The courts in Bandow, Bandow, 794 P.2d 1346 (Alaska 1990), and Landwehr v. Landwehr,111 N.J. 491, 545 A.2d 738] (N.J. [1988]), indicate that the mathematical allocation may not be precise, but we can make a reasonable apportionment. In this case, considering the length of the marriage after the award was received, we believe an allocation of 55% of the amount received after deduction for attorney’s fees etc. is a fair allocation, albeit not an exact one. As indicated, much of the lost wages would have occurred during marriage.

The Maryland Court of Appeals decided that the proof as outlined above was not sufficient. In a divorce case, a party asserting a marital interest in property has the burden of producing evidence as to the identity of the property and of its value. Odunukwe v. Odunukwe, 98 Md.App.273,282, 633 Md.App.418 (1993); Appellant contends that, even if the court did not err in utilizing the analytic approach, appellee failed to meet her burden of proving what portion of the settlement proceeds were marital property. We agree. There was evidence presented showing that some of the $339,000 settlement was intended to reimburse the Newborns for medical expenses in the amount of $13,726.55, but this was less than five percent of the entire $339,000 settlement. Without exception, no figures were presented as to what claim was made for any other element of damages. The trial judge said in his opinion that counsel for the Newborns had made claim for $302,016 in lost wages; that lost wages were not reflected in the settlement “dollar for dollar”; but that nevertheless, he could make a “reasonable apportionment” of the settlement proceeds. A reasonable apportionment was impossible given the meager evidence presented. The demand letter made it clear that the $302,016 was a claim for future lost wages, but as far as it is possible to ascertain the defense paid nothing for future lost wages due to the fact that Mr. Newborn went back to work prior to the settlement. One cannot tell what portion, if any, of the settlement was for Ms. Newborn’s lost wages.

If the figures set forth in the demand letter are accurate, it can be approximated that Ms. Newborn lost roughly $7,800 per year when she refrained from seeking employment outside the home so that she could help with the chores associated with Mr. Newborn’s recuperation. Under the analytical approach, reimbursement for those wages would be marital property to the extent that they were reflected in the settlement. But we do not know how long she stayed away from work or whether the defense accepted her contention regarding this wage loss. Moreover, there is no evidence, whatsoever, to determine what amount, if any, of the settlement proceeds were intended to reimburse the parties for their joint loss of consortium. Because of the very limited information produced in the lower court, there plainly was insufficient evidence to support the trial judge’s conclusion that fifty-five percent of the settlement proceeds was marital. We therefore hold that the appellee did not meet her burden of producing evidence showing what portion of the property traced to the personal injury settlement was marital.

We acknowledge that it is often very difficult to produce evidence necessary to apply the analytical approach. This is especially true in a case like this one where a great deal of time has passed since the personal injury claim was settled. The same is also true in many cases where lump-sum settlements or jury awards are made at a time when no divorce is contemplated. Because the third issue resolved in this case was one of first impression, we think that fundamental fairness requires us to remand the case to give Ms. Newborn an opportunity to put on evidence to prove what portion of the personal injury settlement was marital.

Where the non-injured spouse is claiming a portion of the other spouse’s [personal injury settlement or jury award] as marital property, it is important for that spouse, and the court, to be able fully to explore and, if possible, label the components of the settlement or award as compensation for past lost wages, future loss of earning capacity, losses to the marital estate, future medical expenses, or damages for injury to the property or person. See, e.g., In Re Marriage of Blankenship, 210 Mont. 31, 682 P.2d 1354 (1984); Gibson-Voss, 4 Neb. App. at 241-42, 541 N.W.2d at 78-79; Crocker, 824 P.2d at 1121-22. Thus, although we shall vacate the judgment of the circuit court for the reasons stated, we are moved to remand this matter to the circuit court for further proceedings to re-determine an appropriate monetary award, if any. We presume that the parties, and particularly [Ms. Newborn] will be afforded the opportunity to engage in appropriate discovery, in advance of an evidentiary hearing, so that all available information bearing on this matter can be placed before the trial judge. Herbert Newborn v. Donnie Newborn 133 Md. App.64, 754 A.2d 476 (2000

The case of Diamond v. Diamond 298 Md 24, 467A.2d 510 (1983) a divorce case is instructive. In Diamond husband and wife had sued for the personal injuries of Husband and a second count for loss of consortium. The case was settled with no apportionment between the two claims. A settlement check was issued payable to husband and wife and the attorney. Shortly after receipt of the check, an attachment was filed on the attorney by a judgment creditor of the husband only. The Court of Appeals held there was no intent to create a tenant by the entireties in the settlement proceeds so some portion of the check would be attachable by the judgment creditor. The next question the Court of Appeals had to address was the Circuit Court method of dividing which funds belonged to each spouse since the parties did not apportion the amount when they settled the case. The Court of Appeals affirmed the trial courts method of apportioning the settlement proceeds between husband and wife. [ most likely the parties did not present experts or have discovery]. The trial court considered two factors. The first factor was a comparison of the amount asked for in each count of the complaint and converting that it to a percentage and then multiplying that percentage against the total recovery. The second factor the court looked at was the fact that the adjustor handling the case for the third- party defendant in the case put little or no value into the loss of consortium claim when he valued the case. The Court of Appeals stated, “We agree with the Court of Special Appeals that the apportionment of the circuit court was not clearly erroneous. The trial court found that the ad damnum clause conveys the value placed on each claim by the Diamonds themselves and their attorneys. The ad damnum is two million dollars ($2,000,000.00) for Mr. Diamond’s individual claim and only $85,000.00 for the joint claim for the loss of consortium. Scaled down to the total amount of the final settlement (Thirty Thousand Six Hundred Dollars ($30,600.00), the relative values for the claims, as established by Mr. Diamond and his wife, are approximately: Twenty-Nine Thousand Three Hundred Dollars ($29,300.00) for Mr. Diamond’s individual claim for damages; One Thousand Three Hundred Dollars ($1,300.00) for the joint claim of husband and wife for lost consortium. In fact, this apportionment was rather generous considering that the claims representative for Fireman’s Fund, Michael Barnaba, answered in his deposition that he did not consider any factors other than Willard’s disability and loss of wages in authorizing the settlement amount: Q [Mr. Gladstone, Lois’ attorney] — * * * What, if any, considerations were given by you, sir, in making your offer of settlement to the claim of loss of consortium of Mr. and Mrs. Diamond? A I would have to say none. Q Did you have any discussions, sir, with Mr. Leech insofar as the value of the loss of consortium claim or offering anything for the loss of consortium claim. A None whatsoever.”

The Diamond case reasoning suggests factors the court in our case might look at (most likely when there are no experts) when deciding whether the apportionment in our case of the loss of consortium claim was prejudicial to the workers compensation insurance carrier. In addition to a comparison of the ad damnum clauses in the complaint, the court can look at the value placed by the third party adjustor on the loss of consortium, and the value placed by third party counsel for the defendant on the loss of consortium claim , the pretrial settlement statements filed by the parties, demand letters filed by plaintiffs’ counsel, answers to interrogatories outlining plaintiffs damages, amount of time spent at settlement conference outlining the facts of the loss of consortium vs. the injuries to the husband and the depositions given as part of the third party case of husband and wife as to testimony they gave on the damages issue. Discovery including requests for admissions of fact, answers to interrogatories and requests for production of documents of all parties, the depositions of the defense lawyer in the third-party case as well as the adjustor in the third-party case.

While the next several cases cited including Brocker, Chesapeake Haven Land, and Ankeny involve a different issue regarding evaluating portions of a settlement or jury verdict in a third-party case that are subject to a worker’s compensation lien, the language in these cases is instructive regarding parsing out a settlement into its many pieces.

Brocker Manufacturing and Supply Company v. Mashburn 17 Md App 327, 301A2d 501 (1973) discusses the issue of whether a worker’s compensation insurer can contest the apportionment of a third-party settlement between the injuries for the injured employee and the loss of consortium claim. In Brocker Manufacturing and Supply Company v. Mashburn 17 Md App 327, 301A2d 501 (1973), the Court of Special Appeals found the Employer and insurer had agreed to the settlement including the apportionment of damages and the allocation to the loss of consortium when they signed the release and settlement check. The third- party settlement provided for two separate settlements. One settlement was for $100,000.00 dollars to the injured employee and another settlement to the wife for $140,000.00. Both the workers compensation insurer’s name as well as the injured party name appeared on the release in that case and both parties signed the release given to the injured employee as part of the third- party case. Apparently separate drafts may have been issued by the third -party defendant, one for the claim of the injured worker party as well as one for the wife and her loss of consortium claim. The workers compensation insurers name was on the draft to the injured worker and the draft was delivered to the workers compensation insurer who ultimately made the distributions to the injured worker’s third- party lawyer after deducting the workers compensation lien from the $100,000.00-dollar check.

The Court of Special Appeals in Brocker held that under the special circumstances of that case the employer and insurer could not make a claim to any money apportioned for loss of consortium. The Court ruled because the workers compensation carrier participated in the settlement and signed a settlement check and settlement release in the third- party case with their name on it that they had agreed to the apportionment. The Court held that the workers compensation insurance company should have objected when the release and draft and settlement was presented and not after the release was signed and the settlement check was deposited.

The Brocker court stated “An employee’s receipt of third party funds in excess of the employer/insurer lien doesn’t totally extinguish the right of the employee to claim additional workers’ compensation benefits. Instead the amount the employee receives operates as a credit against any future worker’s compensation benefits that may be payable.” Labor and Employment Article of the Annotated Code of Maryland 9-903. Brocker Manufacturing and Supply Company, Inc. vs. Mashburn, 17 Md. App. 327, 301 A. 2nd 501 The Brocker court stated “It is obvious that, under the circumstances of this case, Mrs. Mashburn was not entitled to proceed against her husband’s employer under the Workmen’s Compensation Act for recovery for loss of consortium. Although the Workmen’s Compensation Act provides a right of subrogation to an employer and insurer, § 58, Cogley v. Schnaper and Koren Construction Company.,14 Md.App.322,286 A.2d 819 (1972) there must be some act performed or committed by, for, or against the subrogee that gives rise to the right to subrogate. In the instant case the appellants (workers compensation insurance company) did not, nor were they legally obligated to, pay any sum to Mrs. Mashburn. We perceive no act performed or committed by Mrs. Mashburn that would justify the appellants’ (workers compensation insurance company) being subrogated to any of her claim against Mrs. Vallone. It is difficult to follow the appellants’ reasoning that they should be allowed to present testimony in order to show in some vague way that they are entitled to participate in the proceeds recovered by Mrs. Mashburn. Appellants attempt to imply that the amount paid to Mashburn was insufficient and disproportionate to his injuries and that the amount received by Mrs. Mashburn was in excess of a reasonable sum for loss of consortium. Appellants, we observe, joined in the release of Mashburn’s claim against the third- party tortfeasor and knew, or should have known, that Mrs. Mashburn did not execute that release individually, but only in her capacity as guardian of her husband. The Circuit Court of Baltimore City approved the settlement. After the amount of the wife’s individual recovery had been called to the attention of the Chancellor, he investigated and again approved the guardian’s settlement nunc pro tunc. We know of no theory of law, nor have we been referred to any by appellants, that would justify this Court’s authorizing appellants to conduct a “fishing expedition” into the circumstances surrounding Mrs. Mashburn’s individual settlement…We hold that the trial judge properly refused to consider appellants’ assertion of a right to share in the monies recovered by Mrs. Mashburn in her derivative action.”

In Chesapeake Haven Land Corporation v. Litzenberg 141 Md App 411, 785A2d 859(2001) the facts showed that Litzenberg was injured in a work-related injury that also involved a third-party claim. One of the damages awarded was for lost wages covered by a second job not covered by the workers compensation claim. The Workers Compensation insurer was asserting a lien on these funds in order to recover for other benefits they had paid in the workers compensation claim. The allocation for lost wages for the second job not covered by Workers Compensation was made by a jury after a trial. Maryland requires juries to allocate their verdicts before they arrive at one number. In that case the insurer asserted that their lien applied to the award made for future economic loss award for damages to his self-employment business, unrelated to his Chesapeake Haven employment, and not compensated for by any past or future workers’ compensation award. The Court of Special Appeals rejected that argument because after a fully contested trial, with no possibility for collusion, the jury determined the value of the economic loss for his second job and the court was not going to question the province of the jury. If the parties in Chesapeake Haven had settled the case without a trial the decision of the Court of Special Appeals may have been different. Although the Chesapeake Haven case cited favorably the findings in the Brocker case including the rejection of insurers attempt to claim a subrogation interest in the loss of consortium claim it also repeated the other language quoted above in Brocker, “Although the Workmen’s Compensation Act provides a right of subrogation to an employer and insurer § 58, Cogley v. Schnapper and Koren Construction Co.,14 Md. App 322 there must be some act performed or committed by, for, or against the subrogee that gives rise to the right to subrogate.”

In Ankney v. Franch 103 Md App 83 (1995) the Maryland Court of Special Appeals later reversed on other grounds by the Court of Appeals 341 Md 350 (1996), outlined that the Workers Compensation Commission was to hear the issues of prejudice and inadequate settlement and outlined a procedure to be used by the Workers Compensation Commission. While the Ackney Court outlines the valuation, problem involving a worker’s compensation lien and gives the Workers Compensation Commission the authority to resolve the dispute, it does not detail how this determination regarding the value of the loss of consortium is to be made. One can presume that testimony from the parties involved as well as the experts would be necessary but what else.

In Maryland Workers Compensation treatise by Clifford Sobin Section 20.6 entitled INJURY CAUSED BY NEGLIGENCE AND INTENTIONAL Acts pages 677-678 the author makes reference to factors that he feels are important for the commission or reviewing court to look at although he cites no authority for his assertions. Factors the author believes are relevant when determining the appropriateness of a loss of consortium allocation of a settlement are:

“the proportion of the loss of consortium settlement compared to the overall settlement;

whether a lawsuit was filed on behalf of the spouse or settlement demand made for loss of consortium;

the overall amount of recovery assigned to the loss of consortium claim;

whether the amount of recovery for the employee is sufficient to repay the lien of the employer/insurer as it existed on the date of settlement plus any benefits that were previously awarded, but not yet paid;

the difficulty and cost of proving the employee’s damage versus loss of consortium;

the third-party defendant’s ability (usually insurance coverage) to pay the full value of the employee’s claim. None of the criteria listed above are dispositive of the issue. Since many fact patterns have their own nuances, it is difficult for the author to provide a rule for what is an appropriate division. At pages 677-678”

Finally, expert testimony on the issue would be crucial. Below is a sample affidavit used in order to determine whether the allocation for loss of consortium in a third-party case that was settled before trial was fair.

Example AFFIDAVIT OF PAUL D. BEKMAN in a case to determine the value of a loss of consortium claim in an auto settlement.

I, Paul D. Bekman, hereby certify that I am competent to testify as to the matters stated in the enclosed Affidavit based upon my personal knowledge, experience and training, and that I am over eighteen years of age.

I solemnly declare and affirm under the penalties of perjury that the matters and facts set forth are true and correct to the best of my knowledge, information and belief.

I am an attorney admitted to practice law in the State of Maryland since January of 1972. My practice has been limited to the handling of serious personal injury and wrongful death cases. I am a Fellow in the American College of Trial Lawyers, a Fellow of the International Academy of Barristers, a Fellow in the International Academy of Trial Lawyers, I have been a Super Lawyer and noted to be in the top ten for every year of its publication since 2006. I have also been listed in Best Lawyers in America for twenty-five years in the categories of personal injury, medical malpractice products liability, maritime law-and alternative dispute resolution. I have tried over one hundred personal injury and other related cases to a jury. I have handled Workers’ Compensation cases since beginning my practice of law in 1972. I have tried cases in the trial level for the Commission, the Circuit Court, the Court of Special Appeals and the Court of Appeals of Maryland. I am also the Managing Partner in the law firm of Salsbury, Clements, Bekman, Marder & Adkins, L.L.C.

I have reviewed the following material for purposes of rendering an opinion as to whether or not the allocation of $152,500.00 to Linda Criswell from the $507,500.00 settlement of the John L. Criswell, Sr. and Linda Criswell case was fair and reasonable. It is my opinion as set forth below that that allocation was unreasonable, not supported by the facts, or by the law in connection with my opinion I have reviewed the following material:

Affidavit in Support of Plaintiffs, Motion for Summary Judgment.

Complaint

Circuit Court of Maryland Case Information Search.

Pre-Trial Statement of Plaintiffs

Defendant’s Pre-Trial Statement Answers to Interrogatories in Criswell, et al. v. Lambert. et al. of Linda Criswell.

Answers to Interrogatories

Medical Bill Summary

Depositions of all parties and witnesses

Deposition of all medical and liability experts

Reports of Vocational and Rehabilitation Counselor

Designation of Expert Witnesses

All Medical records and Doctors depositions

Police reports

Accident investigation reports

Insurance policies and declaration pages

A life care plan

An evaluation was performed by economist as to his lost wages

non-economic cap on pain and suffering, which included non-economic damages such as loss of consortium and pain and suffering

It is clear from a review of all of the medical records, including the depositions, Answers to Interrogatories and Responses to Requests for Production of Documents, that Plaintiff. sustained serious and permanent injuries as a result of his injury at work on March 21, 2007 while working for employer. He was injured in an automobile collision. He has received extensive treatment from a significant number of well-regarded health care professionals,

As a result of his significant injuries he underwent two very serious operations.

Following that surgery Plaintiff did not obtain full relief. He underwent enumerable tries at physical therapy and epidural steroid injections. Plaintiff continued to have pain in his low back with radiation into his right hip. He had the feeling of swelling in both feet and pain in both feet, which he described as burning and tingling with numbness. He developed cramping in his toes. He underwent pain management and again had injections of steroids. Treating Doctor opined that plaintiff was going to need future treatment literally for the rest of his life and further recommended that he have a spinal cord stimulator inserted.

As of the time of the last evaluation, Plaintiff was on the following medication: …All of these medications are pain medications which did not relieve his symptoms. He had chronic, unremitting pain.

Plaintiff did not return to work. An evaluation was performed by economist as to his lost wages which ranged between $531,749.00 and $896,446.00, depending upon how long he would have expected to work. A life care plan was prepared which had a present value of $145,620.00.

At the time of the March 21, 2007 accident the non-economic cap on pain and suffering, which included non-economic damages such as loss of consortium and pain and suffering, was $680,000.00. Accordingly, damages attributable to Mr. Criswell’s claim alone would be the following:

Non-economic cap — $680,000.00

Loss of wages — $896,446.00

Life care plan — $145,620.00

Medical expenses — $100,000.00

The total of these claims is $1,822,066.00.

In addition, a claim could be maintained for loss of household services, which is an

economic loss. Even in light of Mr. Plaintiff’s age, it would not be unusual to have an additional claim which could bring the value of Plaintiff’s individual claim to $2,000,000.00.

With regard to the loss of consortium claim, it is significant to note that in the Complaint filed by the Plaintiff the first Count for Plaintiff was $2,000,000.00. The third count for loss of consortium was $300,000.00. This is ratio of almost 7 to 1.

It is also of significant note that there was no claim in the depositions or in the Answers to Interrogatories that there was any interference in the intimate relationship between the parties. It is my opinion that the full value of Plaintiff’s case was $2,000,000.00 and the value of the consortium claim at best would have been $100,000.00, particularly since it is part of the non-economic cap and Plaintiff’s pain, suffering, physical and emotional dwarfs the consortium claim.

It should be noted that the total amount of coverage that was available was $507,500.00. Accordingly, when the case was settled for that amount a fair and reasonable allocation had to be made to Plaintiffs case individually and the loss of consortium sustained by him and his wife together. In light of that fact, it is my opinion that no more than 5% of the total settlement offer would have been reasonable to attribute to the loss of consortium claim and 95% to Plaintiff’s case individually.

Accordingly, it is my opinion that the allocation of $355,000.00 to Plaintiff individually and $152,000.00 to spouse for loss of consortium is unreasonable. The loss of consortium claims in my view, based on this settlement, should be no more than 5% of the settlement attributable to spouse, or approximately $25,000.00.

The above opinions have been made with a reasonable degree of probability within my field of expertise which is the handling of serious personal injury and wrongful death cases.

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