Md. Court of Appeals removes bar to compensation recovery

Daily Record, The (Baltimore), Jun 9, 2003 by Barbara Grzincic

The state's highest court has up-ended more than 75 years of precedent -- and increased employers' annual burden from workers' compensation claims by "easily $100 million," according to one estimate -- by eliminating the requirement that an injury must arise from an "unusual activity" to be compensable.

"The 'unusual activity' requirement is not supported by the language of the Workers' Compensation Act, is contrary to other opinions by this Court, is a distinct minority view in the nation, and contravenes the liberal purposes of the Workers' Compensation Act," Judge John C. Eldridge wrote for the Court of Appeals on Friday.

The decision revives a Workers' Compensation Commission award of benefits to Vernell Harris, a cafeteria worker at Wilde Lake High School in Columbia who injured her back while moving a 45-pound bag of detergent in January 1999.

When the award was overturned, "I said to myself, there's something fundamentally wrong here," Harris' attorney, Anne E. Hoke, said Friday. "This is the type of accident that the statute was intended to cover. How can it possibly be that this woman has no claim?"

Under case law dating to 1927, an injury is not "accidental" if it did not arise from unusual strain or exertion. But that element of the definition has never been written into the law itself, Hoke noted.

"It isn't in the statute, and workers' compensation is a creature of statute," she said. "A light went off in my head and I said, 'That's it.'

"I figured I had nothing to lose."

The losers will be Maryland's employers and workers' compensation insurers, said William Kress, a lawyer/lobbyist who filed a friend- of-the-court brief supporting Harris' employer, the Howard County Board of Education.

"This is judicial activism at its finest," Kress said. "With this opinion, the court has done what the General Assembly has declined to do at least twice in the last 10 years."

The last time the Legislature looked at a proposal to eliminate the "unusual activity" requirement was in 1999, Kress said.

"The fiscal note accompanying the House bill estimated a 20 percent increase in compensable claims and a $100 million increase in claims paid annually," Kress said. "The estimated increase was $30 million to the Injured Workers' Compensation Fund alone."

Kress said the insurance industry "absolutely" will seek legislation to overturn Friday's decision in the next session.

"The General Assembly clearly has acquiesced to the longstanding interpretation" first adopted by the Court of Appeals in 1927's Standard Gas Equip. Corp. v. Badwin, Kress said.

In addition, "insurers who are issuing policies and premiums right now are doing so based on the case law; they did not anticipate a 20 percent increase," he said. "We're in a very hard market right now, and premiums are rising."

Daniel H. Scherr, who represented the Board of Education, declined to comment until he had read the opinion.

Kress' amici brief for the Maryland Self-Insurers' and Employers' Compensation Association Inc. and several similar entities was one of three filed for the employer, countered by one filed for the petitioner by the Maryland Trial Lawyers Association.

Hoke, an MTLA member who last month opened a solo practice in Clarkesville, says the group came on board after she sent it a copy of her Court of Appeals brief.

"I'm so glad for her," Hoke said of Harris, who continues to work despite her back injuries.

Harris had opened a 45-pound box of detergent in the kitchen area, only to find the box was infested with cockroaches, according to Friday's opinion.

She and a co-worker took the box out of the kitchen to keep the roaches away from the food-preparation area, removed the inner bag full of detergent and had carried it back inside when Harris experienced excruciating and immobilizing back pain, the opinion notes.

Before the Court of Appeals, Hoke also argued that the circumstances would meet the "unusual activity" requirement she challenged. However, the court found it unnecessary to reach that argument.

After nine years of doing workers' compensation cases at Franklin and Prokopic, she said, she thinks that the prior interpretation of the law is contrary to what average people believe it to be.

"I think this is something the Court of Appeals understood -- that most citizens think 'Oh, you get injured on the job and you're covered.' They don't realize that they have to tell somebody there was unusual strain or exertion."

If anything, Hoke added, workers have a sense that they must be performing their usual jobs when the injury occurred in order for it to be compensable. "So, they may go out of their way to deny that there was anything unusual," she said.

Courts, too, have applied the "unusual activity" requirement in such a fashion that "arguments degenerate into the realm of how many angels can dance on the head of a pin," she said.

The Court of Appeals agreed.

"The haphazard application of the judicially invented 'unusual activity' requirement renders it impossible to meet the statutory goals" of a no-fault source of compensation for lost earning capacity resulting from accidental injury," Eldridge wrote.