United Parcel Service v. Strothers

United Parcel Service, et al. v. David Strothers, No. 9, September Term, 2022. Opinion by Eaves, J. LABOR AND EMPLOYMENT — WORKERS’ COMPENSATION The Court of Appeals held that the phrase “definite proof,” as used in § 9-504(a)(1) of the Labor and Employment Article, refers to the quality of evidence required by a workers’ compensation claimant’s burden of production for an accidental hernia and does not elevate the claimant’s burden of persuasion to clear and convincing evidence. LABOR AND EMPLOYMENT — WORKERS’ COMPENSATION The Court of Appeals held that Respondent’s submitted medical opinion satisfied his burden to produce definite proof that his hernia was new and that the Workers’ Compensation Commission did not misconstrue the law in finding that Respondent met both his burdens of production and persuasion. Circuit Court for Howard County Case No. C-13-CV-20-000370 Argued: September 13, 2022 IN THE COURT OF APPEALS OF MARYLAND No. 9 September Term, 2022 UNITED PARCEL SERVICE, ET AL. v. DAVID STROTHERS Watts, Hotten, Booth, Biran, Gould, Eaves, Raker, Irma S.

(Senior Judge, Specially Assigned) JJ. Opinion by Eaves, J. Filed: December 1, 2022 Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2022-12-01 16:10-05:00 Gregory Hilton, Clerk In a case of first impression, we are tasked with determining the proper application of the phrase “definite proof” in § 9-504(a) of the Workers’ Compensation Act (the “Act”), Md. Code Ann. (1991, 2016 Repl. Vol., 2021 Supp.),1 in the Labor and Employment (“L&E”) Article. Specifically, does that phrase reference the quality of evidence a workers’ compensation claimant is required to submit, or does it signify the claimant’s burden of proof and elevate that burden from a preponderance of the evidence to clear and convincing evidence?

Respondent, David Strothers, an employee of United Parcel Service (“UPS”), developed in September 2019 and in the course of his employment a hernia. He filed a claim with the Maryland Workers’ Compensation Commission (the “Commission”), seeking compensation for that injury. The Commission granted his request, finding that (1) Respondent sustained an accidental injury during employment; (2) Respondent’s current hernia was the result of the aforementioned accidental injury; and (3) Respondent, as a result of the hernia, was totally disabled from September 20, 2019, to January 21, 2020, inclusive. Petitioners (UPS and its insurer, Liberty Mutual Insurance) sought judicial review in the Circuit Court for Howard County, which affirmed the Commission.

Petitioners appealed to the Court of Special Appeals, which affirmed in a reported opinion. United Parcel Serv. v. Strothers, 253 Md. App. 708 (2022). 1 Since oral arguments in this case, the 2022 supplement to the L&E Article has been published, but § 9-504(a) remains unchanged. We granted certiorari, 478 Md. 511 (2022), for the following three questions, which we slightly have rephrased2: 1. Did the Court of Special Appeals err when it held that “definite proof” under L&E § 9-504(a)(1) applies to the quality of evidence presented and not the standard of proof a claimant must meet? 2.

Did the Court of Special Appeals err when it found that Respondent met his burden of persuasion when producing medical evidence to a preponderance of the evidence standard, the standard applicable to all other claims submitted before the Commission? 3. Did the Court of Special Appeals err when it held that the phrase “immediate operation is needed,” under L&E § 9-504(a)(1)(ii), applies to the recommendation and need for surgery and not the timing of the surgery? 2 The questions originally presented to the Court read as follows: 1. Did the Court of Special Appeals err when, in a case of first impression, it held, contrary to the plain language and legislative history of Md. Code Ann., Lab. & Empl. § 9-504 , that “definite proof” applies to the quality of evidence presented, and not the standard of evidence presented; when the same quality of evidence is required in all claims presented before the Workers’ Compensation Commission? 2. Did the Court of Special Appeals err when it found that the Respondent/Appellee met his burden of production when producing medical evidence to a preponderance of the evidence standard, a standard by which all other claims submitted before the Workers’ Compensation Commission must meet; despite the fact evidence existed that the Respondent’s hernia existed before the alleged accidental injury? 3.

Did the Court of Special Appeals err when, in a case of first impression, it held, contrary to the plain language and legislative history of Md. Code Ann., Lab. & Empl. § 9-504 , that “immediate operation is needed” applies to the recommendation and need for surgery and not the timing of the surgery, finding 59 days to be “immediate”? 2 Because we answer the first two questions in the negative, we decline to address the third.3 See Bryant v. State, 374 Md. 585, 600 (2003) (noting that the Court may decline to address all questions raised in a petition for certiorari if answering fewer questions can resolve the entire appeal). Our reasons follow. I. BACKGROUND A. Statement of Facts Respondent’s history of work-related hernias begins in May 2016 when, as an employee of UPS, he injured himself during employment while attempting to dislodge a jam on a sorter chute.4 In his September 2016 report, Dr. Joshua B. Macht noted that Respondent suffered a left inguinal hernia and umbilical hernia. According to the report, there were “anatomical changes with scarring and insertion of foreign material to complete the repair[,]” which resulted in pain with loss of function and endurance.

Dr. Macht believed that Respondent’s hernia causally was related to the May 2016 work injury. Respondent subsequently filed a claim for workers’ compensation, and the Commission granted the claim, finding that his hernia qualified as a permanent partial disability. On September 17, 2019, Respondent sustained another work-related injury while manually relocating a load of pallets from one trailer to another,5 and he advised his 3 We more thoroughly address below our reasons for declining to answer this question. See infra n.11. 4 Respondent also suffered an unrelated hernia some 20 years prior.

Whether that was work related or not is not borne out by the record. 5 At the Commission hearing, Respondent testified that the pallet jack he was using jammed, requiring him to manually move the pallets. 3 supervisor of the injury. He then presented to Howard County General Hospital (“HCGH”) with right-side abdominal pain and nausea. Respondent underwent a computerized tomography (“CT”) scan of his abdomen, which revealed a 3.3-centimeter paraumbilical hernia seen containing fat that appeared slightly increased in size when compared to imaging of the May 2016 hernia. It was recommended that Respondent follow up with his primary care physician or a general surgeon within one week.

The following day, Respondent filed with the Commission a First Report of Injury or Illness, describing his injury. HCGH originally scheduled Respondent to undergo surgical repair on September 30 with Dr. James Harris, the surgeon who repaired Respondent’s May 2016 hernia. Dr. Alan B. Kravitz eventually performed surgery, however, on November 14, 2019.6 On January 15, 2020, Dr. Robert W. Macht evaluated Respondent and prepared a written report. He noted that Respondent “had no recurrence of [the May 2016] umbilical hernia at the time of his evaluation in this office, in September of 2016.” Dr. Macht opined, to a reasonable degree of medical certainty, that Respondent “developed a new onset of an umbilical hernia at the time of [Respondent’s] accident, on September 17, 2019.” B. Procedural History The Commission held a hearing on February 12, 2020.

The parties’ agreement began and ended with the fact that Respondent’s September 2019 hernia is unrelated to his 6 At the hearing before the Commission, counsel for Respondent stated that surgery was delayed because Petitioners were required to authorize Respondent’s surgery and refused. Respondent, therefore, sought out Dr. Kravitz and scheduled the surgery for November 14, 2019. 4 May 2016 hernia. Respondent argued that his September 2019 hernia was an entirely new hernia. Petitioners, on the other hand, asserted that there was “absolutely no causal relationship from any medical provider” showing that this hernia was related to Respondent’s September 2019 work injury and that the current hernia was aggravated by a preexisting lateral hernia Respondent sustained “some 20 years prior.” Their argument went something like this: Because (1) the 20-year-old hernia was indicated as lateral, (2) the May 2016 hernia was a left inguinal and umbilical hernia, and (3) the September 2019 hernia was on the right side but ultimately was labeled just as an umbilical hernia (with no side indicated), then (4) it was more likely that the most recent hernia was an aggravation of the 20-year-old hernia. 7 Respondent testified at the hearing, however, that the 20-year- 7 We note that Petitioners appear to have shifted course regarding their theory of causation for Respondent’s current hernia.

In this Court, they seem to adopt the view that Respondent’s current hernia is an aggravation of the May 2016 hernia. Such a shift is evidenced by their multiple in-brief references to the HCGH records suggesting that his current hernia was enlarged when compared to the imaging for the May 2016 hernia. To be sure, at the Commission hearing, they specifically noted that “regarding the 2016 [hernia], no doctor does causally relate it[.]” Petitioners conceded that Respondent had “Dr. Macht saying [the September 2019 hernia] wasn’t a recurrence,” but that they instead took issue with the fact that Dr. Macht did not mention “the [20-year-old] umbilical surgery that [Respondent] had had before.” In the circuit court, Petitioners advanced the same argument—that Dr. Macht’s opinion did not “address the surgery [Respondent] had twenty years prior.” Petitioners did, however, state in the circuit court that they “introduce[d] evidence by the diagnosing physician at the time of the alleged hernia that the finding of the umbilical [hernia] was in fact . . . the same hernia [Respondent] had . . . experienced in 2016.” This, of course, refers to the HCGH records, but Petitioners conceded that no medical expert linked the 2016 and 2019 hernias and persistently advanced their position that Dr. Macht’s opinion failed to consider the 20-year-old hernia. We will not credit Petitioners’ new argument.

As we often have stated, “[q]uestions, including Constitutional issues that could have been but were not presented to the administrative agency may not ordinarily be raised for the first time in an action for judicial review.” Allmond v. Dep’t of Health & Mental Hygiene, 448 Md. 592, 606 (2016) (emphasis in original) (quoting Bd. of Physician Quality Assurance v. Levitsky, 353 Md. 5 old hernia was in his right-groin area. When asked on what medical evidence Petitioners planned to rely, they confirmed that they had none and were relying on the fact that Respondent had not met his burden to show by definite proof that his (1) September 2019 hernia was new and (2) surgery was “immediate,” as contemplated by L&E § 9- 504(a)(1)(ii). In its March 9, 2020, Award of Compensation, the Commission found that (1) Respondent sustained an accidental injury during employment; (2) Respondent’s current hernia was the result of the aforementioned accidental injury; and (3) Respondent, as a result of the hernia, was totally disabled from September 20, 2019, to January 21, 2020, 188, 208 (1999)). In Allmond, we noted that Maryland Rule 8-131(a) gives this Court “discretion to address unpreserved issues[,]” id., but that we normally “do not exercise this discretion, because it is best to allow a ‘proper record [to] be made with respect to the challenge’ and ‘the other parties and the trial judge [to be] given an opportunity to consider and respond to the challenge[,]’” id.

(alterations in original) (quoting Chaney v. State, 397 Md. 460, 468 (2007)). We exercised our discretion to address an unpreserved argument in Allmond, noting that “[d]eciding the facial constitutionality of [a statute] against a substantive due process challenge[ ]” was a “rare instance” in which said discretion was warranted “because none of the considerations recited above weigh[ed] against addressing the constitutional issue in th[at] case.” Id. at 606, 607 . There, we noted the uniqueness of the statute being challenged, the lack of a record needed for a facial challenge, and the fact that Petitioner, despite not bringing his facial challenge to the administrative agency, did raise it in the circuit court. Id. at 607 .

Those rare circumstances are absent from this case. There are no constitutional concerns. Petitioners merely are attempting to switch their litigation position regarding causation of Respondent’s September 2019 hernia. That is something that easily and clearly could have been argued to the Commission and the circuit court, but Petitioners couched their argument on Dr. Macht’s failure to discuss Respondent’s 20-year-old surgery.

Even if we did consider this argument, Dr. Macht in no uncertain terms stated that Respondent’s September 2019 hernia was unrelated to the May 2016 incident and was indeed a new hernia. Thus, we likewise would hold that, had this argument been preserved, Dr. Macht’s opinion still would have constituted definite proof, which would have satisfied Respondent’s burden of persuasion by a preponderance of the evidence. 6 inclusive. Petitioners filed a request for rehearing. In response, Respondent submitted to the Commission a letter with an attached medical opinion from Dr. Kravitz, which stated that Respondent’s hernia was “more likely than not caused by September 2019 injury.” The Commission denied the request for rehearing.

Petitioners sought judicial review8 in the Circuit Court for Howard County, which held a hearing on August 27, 2020. The circuit court squarely framed the issue: “[W]hether or not the Commission was correct in its assessment of the hernia as a new hernia”; “if it is a new hernia then UPS foots the bill. If it is an old hernia that’s been aggravated then it needs to have an immediate operation before they foot the bill.” Petitioners argued that Respondent did not meet his burden under L&E § 9-504(a)(1) to prove his claim by definite proof, alleging that the phrase indicates evidence free of all ambiguity, uncertainty, or obscurity. The circuit court sustained the Commission’s ruling, finding that the phrase “definite proof” did not create a higher burden of proof for hernia claims and that the Commission’s determination that Respondent suffered a new hernia was not error.

In a reported opinion, the Court of Special Appeals affirmed the circuit court, holding that definite proof refers to the quality of evidence needed to succeed in a hernia claim, Respondent’s expert medical opinion qualified as definite proof under the statute, Respondent satisfied the Commission by a preponderance of the evidence that his September 2019 hernia was new, and that his hernia surgery was “immediate.” Strothers, 253 Md. App. at 722–25. 8 Such review is authorized under L&E § 9-737. 7 II. STANDARD OF REVIEW The Commission’s decision is presumed to be prima facie correct, and Petitioners bear the burden of proving otherwise. See L&E § 9-745(b). Maryland courts may review a decision of the Commission for only three types of error: whether the Commission (1) justly considered all of the facts about the accidental personal injury, occupational disease, or compensable hernia; (2) exceeded the powers granted to it under [the Act]; or (3) misconstrued the law and facts applicable.

Id. § 9-745(c). Petitioners’ appeal concerns only the third ground. In conducting our review, we analyze the Commission’s decision and look through the decisions of both the circuit court and Court of Special Appeals. See Montgomery Cty. v. Cochran, 471 Md. 186, 208 (2020).

If we review an agency’s decision for an alleged error of law, such as here where Petitioners allege an incorrect interpretation of a statute, then we do so under the de novo standard. See id. (noting that the statutory presumption of correctness “does not extend to questions of law, which this Court reviews independently” (quoting Elec. Gen.

Corp. v. LaBonte, 454 Md. 113, 131 (2017))).

III

ANALYSIS A. The Parties’ Contentions Petitioners’ challenge is twofold. They first argue that “definite proof” under L&E § 9-504(a)(1) references Respondent’s burden of proof in establishing his claim. In their view, the phrase imposes upon Respondent a burden of clear and convincing evidence, as opposed to merely a preponderance of the evidence. They then assert that, under the clear- and-convincing standard, the Commission erred when it found that Respondent met that 8 burden.

Respondent counters that definite proof refers to the quality of evidence needed for a hernia claim and that the phrase does nothing to alter the burden of proof for all workers’ compensation claims: a preponderance of the evidence. When analyzed under this lens, Respondent argues that we cannot say that the Commission misconstrued the law. To make clear the parties’ positions, we think it best to distinguish between various legal concepts. A party’s burden of proof is its “duty to prove a disputed assertion or charge[,]” and that term “includes both the burden of persuasion and the burden of production.” Burden of proof, Black’s Law Dictionary (11th ed. 2019) (emphases in original).

When Respondent argues that definite proof relates to the quality of evidence needed, he believes that it refers to the quality of the evidence he must put forth to satisfy his “duty to introduce enough evidence on an issue to have the issue decided by the fact- finder, rather than decided against [him] in a peremptory ruling such as a summary judgment or a directed verdict.” Burden of production, id. When Petitioners argue that definite proof heightens Respondent’s burden of proof to the clear-and-convincing standard, they argue that the phrase elevates Respondent’s overall “duty to convince the fact-finder to view the facts in a way that favors [Respondent].” Burden of persuasion, id. Thus, we will refer to the Parties’ respective positions using the phrases “burden of production” and “burden of persuasion.” We believe that Respondent’s interpretation carries the day. Under L&E § 9- 504(a)(1), the phrase “definite proof” refers to the quality of evidence under a claimant’s burden of production, rather than creating a heightened clear-and-convincing burden of persuasion.

When a claimant files a workers’ compensation claim for a hernia, he or she 9 first bears the burden of producing definite proof that the hernia is a new hernia; or, if the hernia was preexisting, that it became so aggravated, incarcerated, or strangulated as a result of the accidental personal injury or strain that an immediate operation was needed. If the claimant fails to meet that burden of production, then the Commission must deny the claim outright. If, on the other hand, the claimant does submit definite proof, satisfying his or her burden of production, then the employer and/or insurer has the option to submit evidence to rebut the claimant’s definite proof. At the end of the day, however, the claimant always bears the burden of persuading the Commission by a preponderance of the evidence.

Our reasoning follows. B. Interpreting the Act When we engage in statutory interpretation, we must “ascertain and effectuate the real and actual intent of the Legislature[,]” Westfield Ins. v. Gilliam, 477 Md. 346, 370 (2022) (quoting Gardner v. State, 420 Md. 1, 8 (2011)), and we naturally start with the “text of the statute and the statutory scheme of which it is part[,]” id. (citing Nationstar Mortg. LLC v. Kemp, 476 Md. 149, 169 (2021)). “One of the first tenets of statutory construction is to accord language its ordinary meaning.” Cochran, 471 Md. at 221 (citing LaBonte, 454 Md. at 131 ).

In Montgomery County v. Deibler, we stated that, “[w]hen the meaning of [the Act’s] plain language is ‘clear and unambiguous,’ our interpretative task is at an end.” 423 Md. 54, 60