United Parcel Service, et al. v. Strothers

No. 743, Sept. Term 2020 Opinion by Shaw, J. Workers’ Compensation

– Proceeding to Secure Compensation

– Review by Court

– Scope and Extent of Review in General The Workers’ Compensation statute does not expressly or implicitly equate definite proof with any standard of proof. Workers’ Compensat ion

– Proceeding to Secure Compensation

– Review by Court

– Scope and Extent of Review in General

– Presumptions and Burden The term “definite proof” is proof that is certain, not ambiguous, obscure, or speculative and it refers to the type of evidence n eeded to sustain a claim. The term was included in the statute in response to the need to ensure that compensation for hernias is based on testimony and evidence, most often medical evidence, that substantiates a worker’s claim. Workers’ Compensation

– Proceeding to Secure Compensation

– Review by Court

– Scope and Extent of Review in General

– Presumptions and Burden The language of the Workers’ Compensation statute is clear, the term “definite proof” refers to the quality of evidence and does not constitute a standard of proof, nor does its inclusion in the statute require the heightened burden of the clear and convin cing standard.Circuit Court for Howard County

Case No. C

- 13

- CV

- 20

- 000370
REPORTED
IN THE COURT OF SPECIAL APPEALS

OF MARYLAND
No. 0743 September Term, 2020

UNITED PARCEL SERVICE, ET AL.

v. DAVID STROTHERS

Arthur, Shaw , Harrell, Glenn T., Jr. ( Senior Judge, Specially Assigned),

JJ.
Opinion by Shaw, J.

Filed : February 4, 2022This appeal arises from an orde r of the Circuit Court for Howard County, affirming

the March 9, 2020 decision of the Maryland Workers’ Compensation Commission. Appellee, David Strothers, filed a claim against appellants, United Parcel Service (“UPS”) and Liberty Mutual Insurance (“LMI” ), seeking compensation after he developed a hernia during the course of his employment. The Commission found that appellee sustained a compensable accidental injury arising out of and in the course of his employment ; that the
hernia was the result of the aforesaid accidental injury ; and that a ppellee was temporarily totally disabled from September 20, 2019, to January 21, 2020. Appellant s then filed a Request for Rehearing with the Commission , which was
denied. Following an “on

- the

- record” judicial rev iew hearing on August 27, 2020, the circuit court judge affirmed the Commission’s decision. Appellants timely appealed and present the following questions for our review:

1. Did the circuit court and Maryland Workers’ Compensation Commission err in applying a preponderance of the evidence standard to the “definite proof” standard required by §9

- 504?
2. Did the circuit court and the Maryland Workers’ Compensation Commission err in the finding that the a ppellee met the evidentiary standard of “definite proof” when he provided opinions that only constituted a preponderance of the evidence standard?
3. If, arguendo , the appellee did satisfy the standard of “definite proof,” did the circuit court and Marylan d Workers’ Compensation Commission err in finding that the hernia operation took place “immediately,” as required by §9

- 504? For reasons discussed below, we conclude there was no error, and we affirm.2 BACKGROUND On September 17, 2019, appellee, during the course of his employment with UPS,
sustained a hernia 1 injury, while using a power jack to move a load of pallets. Following the injury, appellee went to Howard County General Hospital with complaints of right

- side abdominal pain and nausea. He reported a history of hernias and surgeries and stated that he had two prior hernias. The first hernias were a left inguinal 2 and umbilical hernia 3 due
to a work

- related injury with UPS that occurred on May 12, 2016. The second was a non

work

- related right

- side lateral 4 hernia that occurred over twenty years ago. Both required surgical repair. During appellee’s emergency room visit, he was diagno sed with a 3.3 cm

1 “A hernia occurs when there is a protrusion of tissue through an abnormal opening of the body. Although they most commonly occur in the groin, they may occur in other areas of the body as well.” Greer v. Montgomery C n ty , 246 Md. App. 245, 247 (2020) (qu oting Clifford B. Sobin, 1 Maryland Workers' Compensation § 5.3, at 141 (2018) (footnote omitted) )

.

2 “Inguinal hernia” is the medical term for a hernia that occurs in the groin area. Inguinal Hernia , Cleveland Clinic, https://my.clevelandclin i c.org/health/diseases/16266

- inguinal

hernia (last visited August 31 , 202 1 ) (“A hernia is a common condition that occurs when a part of an internal organ or tissue bulges through a muscle. An inguinal hernia occurs when the intesti nes or fat from the abdomen bulge through the lower abdominal wall into the inguinal, or groin, area.”). Greer , 246 Md. App. at 248

.
3 “Umbilical Hernia” is the medical term for a hernia that occurs in the abdomen near the navel (belly button) area. Um bilical Hernia , Cleveland Clinic, https://my.clevelandclin i c.org/health/treatments/6241

- umbilical

- hernia

- srgery
- for

children (last visited August 31, 2021) (“ An umbilical hernia is an unusual bulge that you can often see or feel over the belly button (the umbilicus). An umbilical hernia develops when part of the intestine, together with fat or fluid, forms a sac. This sac pushes through an opening in the musc le of the abdominal wall. ”).

4 A “lateral hernia ” is also known as an “inguinal hernia.” Lateral Hernia , Taber’s Cyclopedic Medical Dictionary (22nd ed. 2013), supra n.2.3

right

- side paraumbilical hernia that appeared slightly increased in size when compared to a past study performed on May 14, 2016. It was recommended that he follow up with his primary care physician and/or a general surgeon within 7 days

. Appellee filed a First Report of Injury or Illness with his employer the next day. On September 23, 2019, appellee went to Columbia Medical Practice where he was diagnosed and recommended for surgery. The surgery was scheduled for September 30, 2019. Appellants, however, contested the injury and did not authorize the surgery or request that appellee be evaluated by an independent physician of their choice. As a result, the surgery
was cancelled. Appellee then tried several alternatives for surgical authorization, but he was unsuccessful. Appellee met with Dr. Alan Kravitz o n September 27, 2019 for further
assessment, and he performed the hernia repair on November 14 , 2019. An evaluation was conducted by Dr. Robert Macht on January 15, 2020. In his report, Dr. Macht opined to a reasonable degree of medical probability that appellee “developed a new onset of an umbilical hernia at the time of his accident,” and he underwent “urgent surgery” due to the
umbilical hernia.
T h e Workers' Compensation Co mmission held a hearing on the contested issues of accidental injury and causal relationship of the umbilical hernia in February 2020

. Approximately one month later, t he Commission issued its findings , stating:
The C ommission finds on the issues presented that the claimant sustained an accidental injury arising out of and in the course of employment on September 17, 2019, that the disability of the claimant's hernia is the result of aforesaid accidental injury, and that as a result thereof the claimant was temporarily totally disabled from September 20, 2019 to January 21, 2020 inclusive. The Commissioner finds that the employer and insurer shall authorize surgical repair of the claimant's hernia. The Commission further finds that the employer and insurer shall pay causally related4

medical expenses in accordance with the Medical Fee Guide of this Commission. The issue of nature and extent was raised but not litigated. Average weekly wage

— $843.03.
A ppellants then filed a Request for Rehearing , conten d ing that the Commission’s decision finding the hernia compensable was an error of law

. Appellee, in response, submitted a letter to the Commission on March 24, 2020 with a m edical report from his surgeon, Dr. Alan Kravitz, that stated the hernia wa s “more likely than not caused by the September 2019 injury

. ” The Commission denied the request for a rehearing

. Appellants filed a timely petition for judicial review in the Howard County Circuit
Court. On August 27, 2020, following a n “on

- the

- record” hearing, the judge issued an order affirming the Commission’s decision. Appellants timely filed this appeal.
STANDARD OF REVIEW Generally, in an appeal from judicial review of an agency action, this Court “review[s] the agency’s decision directly, not t he decision of the circuit court....” Long v. Injured Workers’ Ins. Fund , 448 Md. 253, 264 (2016). Section 9

- 745(c) of the Maryland Labor and Employment Article provides that when an appeal is filed, the standard to be used by the court is limited to determining “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 [by the Maryland Code] ; or (3) misconstrued
the law and fac ts applicable in the case decided. ” This Court “respect[s] the expertise of the agency and accord [s] deference to its interpretation of a statute that it administers ; however, we may always determine whether the administrative agency made an error of
law. ” Id . The Commission’s decision is presumed to be prima facie correct. LE § 9

-5

745(b)(1). “That presumption does not extend to questions of law, which we review independently. We do, though afford the Commission a degree of deference, as appropriate, in its formal interpretations of the Workers’ Compensation Act.” Id

. DISCUSSION
I. The Commission did not err in applying a preponderance of the evidence standard in accordance with §9
- 504. Appellants argue the Commission erred in applying the preponderance of the
evidence standard to a ppellee’s claim because the statute created a higher standard of proof
for hernia cases. A ppellants assert th e term “definite proof , ” as used in the statute, requires analysis under the clear and convincing standard. Appellants contend that “if the legislature intended for ‘definite proof’ to mean ‘preponderance of the evidence,’ ... the legislature would have used that well

- known standa rd” in the statute. Because of this, appellant s state that, as a matter of law, the Commission erred in finding that appellee suffered a compensable hernia

. In opposition, a ppellee argues the Commission properly applied the preponderance of the evidence standard and liberally construed the statute, as
was the intent of the l egislature. To determine whether the Commission erred in applying the preponderance of the
evidence standard , this Court must first examine the language of Section 9

- 504 of the L abor and Employment Article. Where the statutory language is plain and free from ambiguity, we do not look “beyond the words of the statute itself to determine legislative intent.” Md.
Ins. Admin. v . Md. Individual Practice Assn., Inc. , 129 Md. App. 348, 355 (1999). W here the language of the statute is ambiguous, this Court must “consider ... [the] meaning and6

effect [of the language] in light of the setting, the objectives, and purpose of the enactment.”
Id . We “construe the statute as a whole and interpret each of its provisions in the context of the entire statutory scheme.” Id

. T he Maryland Workers' Compensation Act is a remedial statute, and “ as a result, is generally interpreted liberally in favor of the claimant.” McLaughlin v. Gill Simpson Elec. , 206 Md. App. 242, 253

- 54 (2012)

. While remedial statutes are “ to be given a liberal construction, the predominant goal of the Court is to ascertain and implement the legislative intent, and the ascertainment of that intent is done, in the first ins tance, by considering the language used by the Legislature and giving that language a plain and common sense meaning.” 1081 Arundel Corp. v. Marie , 383 Md. 489, 502 (2004)

. The Maryland Labor and Employment Article, Section 9

- 504 states: [A]n employer shall provide compensation in accordance with this title to a covered employee for a hernia caused by an accidental personal injury or by a strain arising out of and in the cou rse of employment if: (1) the covered employee provides definite proof that satisfies the Commission that: (i) the hernia did not exist before the accidental personal injury or strain occurred; or (ii) as a result of the accidental personal injury or s train, a preexisting hernia has become so aggravated, incarcerated, or strangulated that an immediate operation is needed; and (2) notwithstanding any other provision of this title about notice, the accidental personal injury or strain was reported to the employer within 45 days after its occurrence. (emphasis added).
T he term “definite proof” is distinct from language used for accidental injury claims under the Workers’ Compensation Act and it is found solely in the section related to hernia7

claims. No explanation of the term is provided in the statute . As discussed i n appellants’ brief, the term definite is defined by Merriam

- Webster’s Dictionary as “ free of all ambiguity, uncertainty or obscurity, unquestionable, decided.” Definite , Merriam

- Webster Online Dictionary 2021. Black’s Law Dictionary defines it a s “a cer tain or exact boundary

. ” Definite , Black’s Law Dictionary (11th Ed. 2019). Proof is defined as “ a sufficient reason for the truth of a juridical proposition by which a party seeks either to
maintain his own claim or to defeat the claim of another. ” Proof , Black’s Law Dictionary (11th Ed. 2019). In our view, the plain language of the statute is clear and expresses a “ s imple meaning

. ” McLaughlin , 206 Md. App. at 25 4. The term “d efinite proof ” is proof that is certain, not ambiguous, obscure , or speculative and it refers to the type of evidence needed
to sustain a claim

. T h e statute does not expressly or implicitly equate definite proof with any standard of proof, and we f ound no statutory author ity that specifies that “definite proof” is a substitute for the clear and convincing standard. We note that if the Maryland Legislature had wanted to heighten the standard of proof for hernia compensation, they would have done so expressl y. Greer , 246 Md. App. at 253 (holding that if the legislature intended to cover a hernia as an occupational disease under the Act, they would not have created a separate section detailing the compensability of hernias).
In Bethlehem Steel Co. v. Ziegenf uss , the appellee filed a claim against her employer
and self

- insurer, asking for compensation for a hernia resulting from an accident while operating a crane at work. 187 Md. 283, 285 (1946) . She was examined by a physician who diagnosed her with having a hernia and she requested surgery. Id. The doctor denied8

responsibility on behalf of her employer, and she sought out another doctor, who performed the surgery. Id

. Her compensation claim was initially denied because the Commission
found she did not prove that she had no pre

- existing hernia. Id

. On appeal, the circuit court reversed the ruling and the employer appealed. Id

. In holding that the appellee failed to present any legally sufficient evidence to support her claim that she did not have a pre
- existing hernia , the Court of Appeals referenced the term “definite proof

. ” Id . at 295 . The Court , while acknowledging that hearsay is permissible in compensation cases, stated: [A] ppellee produced no direct medical testimony ...but attempted to prove it by her own testimony of what was told her by the appellant’s doctor...

. We do not think the relaxation of the ordinary rules of evidence provided for by the Code in compensation cases was intended to go to the extent of permitting a claimant to sustain a burden of proof by her statement of what a doctor told her.
Id

. The Court then concluded that “ the unsupported testimony of people of no medical
education as to med ical opinions given them does not meet the statutory requirement of definite proof. ” Id

. Absent from the Court’s holding was any language indicating that definite proof was a standard of proof or that the term referenced the clear and convincing
standard. The Court’s ruling merely pointed to the lack of certainty in proof. Prior to 1931, a hernia claim was treated like any other injury and was compen sable “[i]f it appeared from the testimony that there was any special strain or slip or fall, or any other occurrence out of the ordinary which produced the hernia....” Bethlehem Steel Co. , 187 Md. at 286; see Atlantic Coast Shipping Co. v. Stasiak , 158 Md. 349, 351(1930) (requiring evidence that hernias were caused by “any usual strain or by any condition incident to the claimant’s employment”).9

The Maryland Legislature enacted the first special statutory provision for compensable hernias in Chapter 363 o f the Acts of 1931. It provided that: In all claims for compensation for hernia[s], compensation may be allowed only upon definite proof to the satisfaction of the Commission [of six separate conditions]. First[,] [t]hat there was an accidental injury c ausing [the] hernia, arising out of and in the course of the employee’s employment. Second[,] [t]hat the hernia had appeared suddenly. Third[,] ...it was accompanied by pain. Fourth[,] ...the hernia immediately followed such injury. Fifth[,] ...the hernia [m ust] not [have] exist[ed] prior to the injury for which compensation is claimed [and] [s]ixth, ...[the] injury [must have been] reported to the employer within 48 hours next following its occurrence. Md. Laws Ch. 363 (1931) ( emphasis added ). Shortly thereafter, the Court of Appeals discussed, in Ll o yd v. Webster , the statute
and the reason for the requirements. The Court did not refer to any of the requirements as necessitating a new er or stricter standard of proof. These special requirements in the Maryland statute are similar to those previously adopted in a number of other states to gain greater assurances that hernias compensated for have in fact resulted from accidental strains. The general provisions of the compensation statutes, it appears, had seemed to work unsatisfactorily because previous accidental strains were sometimes inferred merely from the development of the hernias when no strains had been reported or known. Occurre nce of a strain would ... be a fact peculiarly within the knowledge of the workman, and there could be no means of testing the truth of attribution of the hernia to strains if no strains had been reported at the time. Further, medical testimony had cast con siderable doubt on the possibility of traumatic cause of hernias. This [C]ourt construes the Maryland statute as intended to restrict compensation for hernia[s] to accidents noticed and reported at the time of their occurrence. 165 Md. 574, 576 (1933). In 1935, t he Maryland legislature amended the statute and reduced the requirements for compensation to the following : First, that there was an accidental injury causing hernia, arising out of and in the10

course of employment. Second, that the hernia di d not exist prior to the injury for which compensation is claimed, with a proviso if a pre

- existing hernia became strangulated, requiring immediate operation, this requirement would not apply, and third, that the injury must be reported to the employer wit hin 10 days next following its occurrence.
Md. Laws Ch. 487 (1935). The changes lessened the burden placed upon the claimant and gave more time to make a report , but still included th e requirement of definite proof

. Bethlehem Steel Co. , 187 Md. at 289. The statute reached its current form in 194 Md.
Laws C h. 336 , and i t sets forth the compensability requirements for a hernia which are separate and distinct from those of accidental injury and occupational disease claims. Greer v. Montgomery C

n ty ., 246 Md. App. 245 (2020)

. Hernias are compensable only pursuant to LE § 9

- 504

. (1 Maryland Workers' Compensation Handbook § 9.03 (2020) (page 9

- 36 through 9

- 37))

. Recently, this Court, in Greer , examined whether a hernia was compensable as an occupational disease and referenced Clifford Sobin’s treatise on Maryland Workers’ Compensation Law, which describes hernia injuries as “a subset of workers’ compensation claims that are subjected to different treatment under the law.” Maryland Workers’ Compensation, § 5.3, at 141.

The clear intent of the hernia provisions of the Act is to provide additional protections to employers from employees who claim their hernias were as a result of a job

- related activity. Such concerns are probably grounded on the followin g three factors that perhaps in combination apply to hernias to a far greater degree than other injuries: (1) It is often difficult to pick a particular event that caused the hernia since the pain or symptoms may not be experienced immediately; (2) hernias can easily be caused by non

- job

- related functions; and11

(3) hernias usually are relatively easily repairable by surge ry which has less risk than other procedures. [ footnote omitted ]. Therefore, rather stringent requirements have been placed on a claimant by the Act. These requirements provide employers an opportunity to properly investigate claims expeditiously and p rovide incentives to employees to act quickly to mitigate the effect of the injury. Maryland Workers’ Compensation, §5.3, at 142

- 43.
The treatise pointed to the reason for the stricter requirement but did not characterize “definite proof” a s a higher st andard of proof. Likewise, our review of other states that
have similar hernia workers ’ compensation statutes did not confirm that “definite proof” is a higher standard of proof. T he statutes of twelve other states 5 include the terms “definite proof” or “definitely proven” as it relates to hernia claims . T hey , like Maryland, do not define the phrase s, neither are the terms recognized as a standard of proof by case law or other statutory treatment

. For example, i n an appeal to the Fifth Circuit Court of Appeals from the District
Court of the United States for the Eastern District of Texas , the court addressed whether plaintiff's evidence in a suit under the Texas Workmen's Compensation Act for a hernia
was sufficient to make a case for the jury

. The Court referred to the quality of the evidence but not to a standard of proof. Hicks v. Georgia Casualty Co. , 63 F.2d 157 (1933). The

court stat ed : [T]he contention [here] that the evidence of plaintiff working in a garage and running up a ramp to get some cars down for which customers were in a hurry [and]

5 The t welve states that use “definite proof” or “definitely proven, ” not including Maryland are : North Carolina, South Carolina, West Virginia, Virginia, Florida, Georgia, Kentucky, Louisiana, Texas, Wisconsin, Tennessee, and Alabama.12

... suddenly felt a pain in his side and the hernia appeared , is of too slight probative force to satisfy the measure of [definite] proof.
Id . at 158

. Thus, based on our review, we hold the language of the statute is clear, the term “definite proof” refers to the quality of evidence and does not constitute a standard of proof, nor does its inclusion in the statute require the heightened clear and convincing standard.
T he legislative history and caselaw confirm that the term was included in the statute in response to the need to ensure that co mpensation for hernias is based on testimony and
evidence , most often medical evidence, that substantiates a worker ’s claim

. II. The Commission did not err in finding that appellee met the evidentiary standard of “definite proof” when he provided expert medi cal opinions that constituted a preponderance of the evidence. Appellants contend that a ppellee failed to satisfy the requirements of §9

- 504, which require that definite proof be offered that the hernia did not exist prior to the work a ccident. Appellants argue that Dr. Macht ’s opinion “to a reasonable degree of medical certainty”
and Dr. Kravitz ’s opinion that the hernia was “more likely than not” caused by the September 2019 injury w ere not sufficient

. We do not agree. Appellee was examined b y Dr. Macht on January 15, 2020 and his report detailed , to a reasonable degree of medical certainty, that although appellee had “a history of prior umbilical hernia surgery[,] he had no recurrence of his umbilical hernia at the time of his
evaluation in t his office, in September 2016.” Additionally, he stated :
B ased on his medical records, he developed a new onset of an umbilical hernia at the time of the [September 2019] accident .... He had urgent surgery a few weeks later due to that umbilical hernia.13 * * * At this time taking all these factors into consideration, along with AMA Guidelines, there is a 10 percent permanent partial impairment of his abdominal wall solely due to the September ...2019 accident and solely due to the umbilical region.
The report was admitted into evidence without objection. Appellee’s treating physician , Dr. Kravitz, also submitted a report that stat ed : “I performed hernia surgery on [ a ppellee] on November 14, 201 9. This hernia was the result of an accident at work in September 2019. Although he had prior umbilical hernia surgery, this hernia was a separate event and more likely than not was caused by the injury of September 2019.” This report was also submitted wi thout objection.
A ppellants argue that both opinion s failed to meet the “definite proof” standard of clear and convincing evidence. As we have held that “definite proof” is not a standard of evidence, we decline to address this argument further

. Appellan t s also argue that Dr. Macht’s opinion was incomplete as his opinion only related to the 2016 hernia and not one 20 years prior. Appellant contends that appellee failed to prove that his hernia was not the result of either of his pre

- existing hernias.
W e hold that the Commission considered all of the facts and made its decision regarding credibility based on the evidence presented. It neither misconstrued the law or facts and thus is presumed to be correct. While, clearly, appellants did not have the b urden of proof, because they presented no medical testimony that refuted that provided by appellee, the Commission was left one view, which it found credible and persuasive.14

III. The Commission did not err in finding that the hernia operation took place “immediately,” as required by § 9
- 504
. Section 9

- 504 of the Labor and Employment Article states: “ as a result of the accidental personal injury or strain, a preexisting hernia has [to] become so aggravated, incarcerated, or strangulated that an immediate operation is needed.” Appellants argue that appellee’s hernia repair surgery was not “imm e d i ate” because it occurred 59 days after the accident. Appellants cite Washington Metropolitan Area Transit Authority v. Hewitt , 153 Md. App. 42 (2003), stating that “immediately has been construed to mean without interval of time, without delay... or lapse of time.” Here, it is uncontested that appellee immediately sought medical attention after injuring himself. Following his diagnosis, within 7 days, he sought out a further diagno sis and scheduled his surgery for September 30, 2019. Because appellants contested the claim
and d isput ed the i njury, appellee’s surgery could not be performed

. Appellee, nevertheless, continued his efforts to have the surgery performed a nd Dr

. Kravitz did, in fact, perform the surgery on November 14, 2019.
I n sustaining appellee’s claim that the surgery was performed immediate ly , the
Commission did not err . Under the circumstances in this case, wh ere th e surgery was performed 59 days later, because of difficulties in finding a surgeon, insurance coverage and conflicts in the surgeon’s scheduled operation, we hold the medical records supported the contention that the surgery was needed “urgently.” Thus , the requirement of
immedia c y was satisfied. As the circuit court judge stated, “ there has to be a difference between the use of the word immediate and emergency...I don’t believe that immediate is15

a substitute for the word emergency.” We agree. But for the action of appellants in

c ontesting the injury , appellee would have had his surgery 13 days after the incident

. The fact that it was 59 days later does not diminish its urgent or immediate nature.

JUDGMENT OF THE CIRCUIT COURT FOR HOWARD COUNTY AFFIRMED ; COSTS TO BE PAID AN D SPLIT 50
- 50 BETWEEN THE APPELLANT S
.