Applied Industrial Technologies v. Ludemann

BARBERA, Judge. The principal issue we decide in this appeal is whether the date of a work-related accident must be identified with certainty in order for an employee to recover benefits under the Workers’ Compensation Act. We hold that such certainty is not required. We also decide the propriety of the court’s denial of a mid-trial continuance request that came in the midst of a tragic national occurrence — the September 11, 2001 terrorist attack upon our country.

We hold that the judge exercised proper discretion in denying a continuance and thereby allowing the jury, as it had requested, to deliberate and render its verdict. This appeal stems from the decision of a Baltimore County jury on review of two orders of the Workers’ Compensation Commission (“the Commission”) denying benefits to appellee, Kevin R. Ludemann (“Claimant”). Claimant had sustained accidental injuries to his back on two occasions arising out of and during the course of his employment. ²⁷⁷ Appellee’s employer, Applied Industrial Technologies, and its insurer, Pacific Employers Insurance Company, which we collectively refer to as “Applied Industrial,” noted this appeal. Applied Industrial presents the following questions: I. Did the circuit court err in allowing Claimant to amend the dates of his alleged accidents at trial?

II

Was the verdict sheet flawed in that it failed to specify the dates of the alleged work-related incidents, and in describing the allegedly work-related incidents as “accidents?” III. Did the circuit court err in permitting the jury to deliberate and render a verdict in light of the tragic events of September 11, 2001? For the reasons that follow, we affirm. FACTS AND PROCEEDINGS The evidence offered at trial disclosed that Claimant began working for Applied Industrial or its subsidiary, Dees Fluid and Power, upon his graduation from high school approximately twenty-nine years earlier. 1 For the last eleven of those years, he has worked as a service center manager and as a mechanic.

For several years, Claimant has been authorized to complete piecework projects in his home for one of Applied Industrial’s clients, B. Stuart Bauer. Claimant testified at trial that, in October 1998, while performing one of these projects in his home, he injured his back in attempting to place two boxes on the floor. The combined weight of the boxes was approximately seventy-five pounds. Claimant did not immediately seek medical treatment.

A few days later, however, he sought treatment from his family physician, Bradford L. Ebright, M.D. Dr. Ebright opined that Claimant was suffering from either a muscle spasm, muscle sprain, or pinched nerve, and recom ²⁷⁸ mended physical therapy. After two physical therapy visits, Claimant was referred by Dr. Ebright to Kenneth J. Murray, M.D., a neurosurgeon. Dr. Murray treated Claimant with medication and recommended bed rest. Following this visit, Claimant informed Dr. Murray that his condition was much improved.

Approximately five months after the accident, Claimant was released from the care of Dr. Murray. In November 1999, thirteen months after the first injury, Claimant again injured his back. He testified that while working on Applied Industrial’s property, he lost his footing on the oily floor and fell onto his left side. Claimant again was treated by Dr. Murray.

After some time passed, Dr. Murray, in consultation with other surgeons, recommended that Claimant undergo surgery to alleviate the pain and pressure in his back. Claimant underwent two surgeries to his back, the first occurring in May 2000 and the second in November 2000. He eventually returned to work, but was restricted to light duty and limited lifting. On June 12, 2000, approximately one month after his first surgery, Claimant filed two claims for workers’ compensation benefits.

Claimant listed October 18, 1998 and November 5, 1999 as the accidental injury dates. On November 3, 2000, the Commission held an evidentiary hearing on both claims. At the hearing, Claimant admitted that he was unsure of the exact date of the October injury, and “use[d] the 18th [of October] as a nearest point of recollection.” Claimant’s counsel then informed the Commission that Claimant wished to amend his claim to state that the injury occurred on October 16, 1998. Applied Industrial promptly objected.

The Commission implicitly denied the amendment request, stating: “I’m not that worried about the date of the accident. I’m more concerned about the merits and the substance of the case. I don’t know that the date is a big issue.” Five days later, the Commission issued its orders denying both claims. The orders are identically worded save for the ²⁷⁹ claim numbers, dates alleged in the separate claims, and Claimant’s average weekly wage at the relevant times.

The orders state: Hearing was held in the above claim at Baltimore, Maryland on November 3, 2000 on the following issue: Did the employee sustain an accidental personal injury arising out of and in the course of employment? The Commission finds on the issue presented that the claimant did not sustain an accidental injury arising out of and in the course of employment as alleged to have occurred on [October 18, 1998] [November 5, 1999]; and the Commission has concluded to disallow the claim filed herein. Average weekly wage — [$953.35] [$1000.34]. It is, therefore, this 8th day of NOVEMBER, 2000 by the Workers’ Compensation Commission ORDERED that the claim filed in the above case by the above-named claimant, against the above-named employer and the above-named insurer, be and the same is hereby disallowed.

Claimant thereafter petitioned the Circuit Court for Baltimore County for judicial review of the two Commission rulings. The case came on for a jury trial on September 10, 2001, and concluded with a verdict the next day. At trial, Claimant challenged the Commission’s decision, contending that on both occasions he suffered an accidental injury in and during the course of his employment. Claimant testified, much as he had at the Commission hearing, that he “gave the best date that [he] knew of’ regarding the dates on which the accidents occurred.

He now believed, however, that the first accident occurred on October 8, 1998, not October 18th as the benefits claim form stated, or October 16th as was his testimony before the Commission. Claimant explained that he was eventually able to identify the injury as having occurred on October 8th by calculating back from the dates on which he visited the doctor and recalling that he was not at work on October 18th, per his doctor’s advice. Claimant testified that the second accident occurred on November 8, 1999, and not on November 5th as he had stated ²⁸⁰ on the claim form. Claimant explained this date adjustment by recalling that he had substantially completed a “pump rebuild” for a client on a Friday, leaving the weekend for continued work if necessary.

The following Monday morning, November 8th, he was injured while testing that pump. At the close of Claimant’s case, Applied Industrial made a motion for judgment. Applied Industrial argued that because Claimant was unable to establish the specific dates of the alleged accidental injuries, judgment should be entered in Applied Industrial’s favor. In opposition, Claimant argued that the record reflected his acknowledgment of a date discrepancy and, inasmuch as the Commission had stated that it was not concerned with the inexactness of the accident dates, the motion for judgment should be denied.

The court denied the motion, agreeing with Claimant that inconsistent dates were “not the thrust of the Work[ers’] Comp’s decision.” The court further stated: “I’m not worrying about the dates. [The Commission’s] concern was whether or not there was an accidental injury ... which is the same question that the jury has.” At the close of all the evidence, Applied Industrial renewed its motion for judgment, arguing the same grounds as before. The court denied this motion, reiterating that “the issue is did the employee sustain an accidental personal injury arising out of and in the course of [his] employment, and the question is whether it was, whether that occurred on two different days. And, in other words, it’s, it’s putting form before substance.” In light of the tragic events occurring that day (September 11, 2001) in the Washington D.C. area, New York, and Pennsylvania, the court, after an off-the-record discussion, polled the six-member jury concerning whether it wished to hear instructions and closing arguments by counsel, and begin deliberating. 2 All six jurors indicated their desire to continue with the proceedings. ²⁸¹ After the court completed its instructions, Applied Industrial objected to the verdict sheet, arguing that it was prejudicial to Applied Industrial because it left “wide open” whether Claimant had an accidental injury at any time during any given month. The verdict sheet read: 1.

Was the Workers’ Compensation Commission correct in its orders that the Claimant did not suffer an accidental injury arising out of and in the course of his employment? A. First accident: yes_no_ B. Second accident: yes_no_ Before the court ruled on this objection, Applied Industrial also objected, for the first time, to the court’s decision allowing the jury to begin deliberating. Counsel stated: “I believe in light of the circumstances that are going on in the country right now ... this could be a rush to judgment.” The court overruled both objections, and closing arguments commenced. The jury retired and, nearly an hour later, returned with a verdict.

Before the court clerk called for the verdict, the court made part of the record a message signed by all of the jurors, which read: The jury’s decision to move forward reflects our determination in view of today’s tragic events to carry out the business with which we are charged. We intend to do that with deliberate and careful attention in the interest of fairness to all the parties. The jury foreman then read the verdict, finding that the Commission was not correct in determining that Claimant had ²⁸² not suffered two accidental injuries arising out of and during the course of his employment. This appeal followed. 3 DISCUSSION Before reaching the specific issues presented in this case, we briefly summarize the means by which judicial review of a Commission decision is obtained.

A party aggrieved by a decision of the Commission may appeal to the circuit court. Md.Code (1991, 1999 Repl.Vol., 2002 Cum.Supp.), § 9-737 of the Labor and Employment Article (“LE”). The General Assembly has set forth in LE § 9-745 the procedure for conducting appellate proceedings in the circuit court. There are “two alternative modalities” that an appeal from the Commission may take.

S.B. Thomas, Inc. v. Thompson, 114 Md.App. 357, 364 , 689 A.2d 1301 (1997). One is pursuant to Labor and Employment Art. § 9-745(e), which 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.

Id. A trial that is essentially de novo is unlike the procedure applicable to many other administrative law bodies, where appeal to the circuit court is usually determined on the record made at the agency hearing. General Motors Corp. v. Bark, 79 Md.App. 68, 88-89 , 555 A.2d 542 (1989). At trial, the parties may rely on the same or different evidence than was presented to the Commission.

Id. at 81 , 555 A.2d 542 . At the ²⁸³ same time, the Commission’s decision is not treated as if it had never occurred. “It is, rather, the case that the presumptively correct outcome of that adjudication is admissible as an item of evidence and is the proper subject of a jury instruction.” S.B. Thomas, Inc., 114 Md.App. at 866 , 689 A.2d 1301 (citing Holman v. Kelly Catering, Inc., 334 Md. 480, 486-87 , 639 A.2d 701 (1994)). The Court of Appeals long ago described the appellate court’s standard of review of these essentially de novo trials: Talley v. Dept. of Correction, 230 Md. 22, 29 , 185 A.2d 352 (1962). With this legal framework in mind, we turn to the case sub judice.

I. We first address the circuit court’s denial of Applied Industrial’s motion for judgment. Applied Industrial’s argument is premised on the fact that Claimant’s trial testimony concerning the dates of his two injuries varied not only from his testimony before the Commission, but from the dates identified in his benefits claims. More specifically, Applied Industrial argues that: (1) in failing to identify the specific dates of the accidents, Claimant did not meet his burden of proving that he sustained an accidental injury in the course of employment; (2) Claimant was required to raise the “new” dates of the accidents before the Commission and, not having done so, was precluded from presenting them to the jury; (3) Claimant’s failure to specify particular accident dates prejudiced Applied Industrial’s “right to investigate”; and (4) allowing Claimant to receive workers’ compensation benefits without identifying the specific accident dates leaves the benefit system open to fraud and abuse. Under the Workers’ Compensation Act (“the Act”), a compensable “[accidental personal injury” includes- “an accidental injury that arises out of and in the course of employment.” Md.Code (1991, 1999 RepLVol.), § 9-101(b)(l) of the Labor and Employment Article.

If an employee incurs an accidental ²⁸⁴ injury, then his employer must provide compensation for the injury pursuant to LE § 9-501. 4 The mere occurrence of an accident does not suffice for workers’ compensation benefits. Montgomery County v. Wade, 345 Md. 1, 9 , 690 A.2d 990 (1997). Rather, the Act compensates “only those injuries that are occupationally-related, and not those perils common to all mankind or to which the public is generally exposed.” Id.