Stine v. Montgomery Cnty.

• Decision Date: 01 June 2018
• Docket Number: No. 578, Sept. Term, 2017,578, Sept. Term, 2017
• Citation: 185 A.3d 826,237 Md. App. 374
• Parties: Justin STINE v. MONTGOMERY COUNTY, Maryland
• Court: Court of Special Appeals of Maryland

237 Md.App. 374

185 A.3d 826

Justin STINE

v.MONTGOMERY COUNTY, Maryland

No. 578, Sept. Term, 2017

Court of Special Appeals of Maryland.

June 1, 2018

Argued by: Matthew Engler(Kenneth M. Berman, Berman, Sobin, Gross, Feldman & Darby LLP, on the brief) Gaithersburg, MD, for Appellant.

Argued by: Wendy Karpel, (Marc P. Hansen, Edward B. Lattner, Kathryn Lloyd, John P. Markovs, on the brief) Rockville, MD, for Appellee.

Panel: Meredith, Nazarian, James P. Salmon, Senior Judge, Specially Assigned, JJ.

Nazarian, J.Justin Stine, a volunteer emergency medical technician ("EMT") for Montgomery County(the "County"), injured his foot as he stepped off an ambulance while on duty.His injury required surgery, and he was unable to work for approximately two months.At the time of the injury, Mr. Stine was a university student studying nursing and had approximately two years left before he would earn his degree.He was also a part-time EMT for a private ambulance company, Lifestar, during the school year (when the injury occurred) and worked full-time during the summer.He filed a claim with the Maryland Workers' Compensation Commission("Commission") for lost wages.The Commission held a hearing and found that Mr. Stine's average weekly wage is $64.65, the average of the wages he earned in the fourteen weeks preceding his injury.¹

Mr. Stine appealed the Commission's determination of his average weekly wage to the Circuit Court for Montgomery County and requested a jury trial.On the day of trial, the court granted the County's motion in limine to exclude the testimony of Mr. Stine's vocational expert and the County's motion to strike the jury, then remanded the case to the Commission.We affirm the circuit court's decision to exclude the testimony of the vocational expert but reverse its decision to grant the County's motion to strike the jury and remand the case to the circuit court for additional proceedings consistent with this opinion.

I.BACKGROUND

Mr. Stine's injury occurred on March 26, 2016, and the hearing before the Commission took place on July 27, 2016.Mr. Stine testified, and both counsel presented arguments.Mr. Stine's counsel confirmed that the only issue before the Commission was the amount of Mr. Stine's average weekly wage.

There was very little in dispute factually.The parties agreed that the amount ultimately ordered by the Commission, $64.65, reflected the average amount Mr. Stine had earned from his job at Lifestar during the fourteen weeks preceding his injury, when he had been working part-time during the school year.In addition to the paystubs for the fourteen weeks preceding the accident, Mr. Stine had submitted three additional paystubs for full-time work during the summer of 2015.He also testified as to his hourly wage, and several raises he had received, since the time of the accident.²Although Mr. Stine did not argue that his summer earnings should factor into the calculation of his average weekly wage, the Commission inquired about them during the hearing.

Mr. Stine argued primarily that MD. CODE ANN. , Labor & Empl.("LE")§ 9–602(a)(3) gave the Commission discretion to set Mr. Stine's average weekly wage higher than $64.65, the fourteen-week average.³The County argued that LE§ 9–602(a) does not apply to his situation, and that LE§ 9–602(g) applies instead.The Commission apparently adopted the fourteen-week average—it issued an order stating, without explanation, that "the claimant's average weekly wage is $64.65."

Mr. Stine filed a petition for judicial review in the circuit court and prayed a jury trial.In the meantime, Mr. Stine retained a vocational expert to support his argument that under LE§ 9–602(a)(3), his average weekly wage should be based on what he likely would earn after finishing nursing school, working full-time as an EMT or nurse.Before trial, the County made an oral motion in limine to strike the testimony of Mr. Stine's vocational expert on the ground that LE§ 9–602(a)(3) does not apply.The County also orally moved to strike the jury demand on the ground that the appropriate method for determining the average weekly wage is a legal question, and is therefore not suitable for jury review.Mr. Stine responded that LE§ 9–602(a)(3) does apply and that his expert's testimony was admissible.And he argued as well that the average of his wages over the fifty-two weeks preceding his injury should have been used to calculate his average weekly wage, not just the fourteen weeks, and that that question should be submitted to the jury.

The court granted both of the County's motions.The court ruled that LE§ 9–602(a)(3) did not apply, that § 9–602(g) applied instead, and that the vocational expert's testimony would be irrelevant.The court went on to find that Code of Maryland Regulations("COMAR") 14.09.03.06 required the Commission to compute the average weekly wage from Mr. Stine's average wage over the fourteen-week period preceding the injury, leaving no issue of fact for the jury to decide.In the alternative, the circuit court held that even if COMAR 14.09.03.06 did not compel the Commission to use the fourteen-week average, it nevertheless fell within the Commission's discretion to decline to consider Mr. Stine's average wages over a fifty-two-week period.The court entered an order affirming the Commission's order and remanding the case to the Commission.We supply additional facts as necessary below.

II.DISCUSSION

On appeal, Mr. Stine raises two questions that we have rephrased: first , whether the circuit court erred in granting the County's motion in limine to exclude testimony from Mr. Stine's vocational expert; and second , whether the circuit court erred in granting the County's motion to strike the jury and affirming the Commission's order setting Mr. Stine's average weekly wage at $64.65, the average of his wages over the fourteen weeks preceding the injury.⁴Before delving into the specifics of the parties' arguments, though, we outline the procedural path that appeals take in workers' compensation cases, as well as the standard of review.

Judicial review of the Commission's decisions in the circuit court is governed by LE§ 9–745, which, unlike most other judicial review of administrative agency decisions, authorizes essentially a do-over of the agency decision and an opportunity for a jury trial:

(c)The court shall determine whether the Commission:

...

(2) exceeded the powers granted to it under this title; or

(3) misconstrued the law and facts applicable in the case decided.

(d) On a motion of any party filed with the clerk of the court in accordance with the practice in civil cases, the court shall submit to a jury any question of fact involved in the case.

(e)(1) If the court determines that the Commission acted within its powers and correctly construed the law and facts, the court shall confirm the decision of the Commission.

(2) If the court determines that the Commission did not act within its powers or did not correctly construe the law and facts, the court shall reverse or modify the decision or remand the case to the Commission for further proceedings.

An appeal from the Commission to the circuit court"may follow two alternative modalities."Simmons v. Comfort Suites Hotel , 185 Md. App. 203, 224, 968 A.2d 1123(2009)(quotingBd. of Educ. for Montgomery Cty. v. Spradlin , 161 Md. App. 155, 166, 867 A.2d 370(2005) ).The first is an "unadorned administrative appeal,"Spradlin , 161 Md. App. at 167, 867 A.2d 370, under LE§ 9–745(c) and (e).Had Mr. Stine taken that path, we would have before us a typical administrative agency appeal, and we would look through the circuit court judgment to review the decision of the Commission.Elms v. Renewal by Andersen , 439 Md. 381, 392, 96 A.3d 175(2014);see alsoSpradlin , 161 Md. App. at 173, 867 A.2d 370.

Instead, Mr. Stine followed the second "modality," an "administrative appeal plus" authorized by LE§ 9–745(d).Spradlin , 161 Md. App. at 171, 867 A.2d 370.It is an "essential trial de novo ," in which the party challenging the Commission's decision may introduce new evidence in the circuit court so long as it relates to "a factual issue that was actually decided by the Commission."Id. at 177, 867 A.2d 370;see alsoid. at 171–72, 867 A.2d 370.The difference between an essential trial de novo and a true trial de novo stems from LE§ 9–745(b), which provides that the Commission's decision is presumed to be correct and that the party challenging the decision has the burden of proof.S.B. Thomas, Inc. v. Thompson , 114 Md. App. 357, 366, 689 A.2d 1301(1997);see alsoBaltimore Cty. v. Kelly , 391 Md. 64, 74–75, 891 A.2d 1103(2006)(discussing how the burdens of proof and persuasion switch to the employer at the circuit court level when the employer (as opposed to the claimant) appeals the Commission's decision).In such cases, as here, we review the decision of the circuit court.McLaughlin v. Gill Simpson Elec. , 206 Md. App. 242, 252–53, 47 A.3d 1074(2012).

A.The Circuit Court Did Not Err In Excluding The Proffered Testimony Of Mr. Stine's Vocational Expert.

Mr. Stine argues first that the circuit court erred in excluding the proffered testimony of his vocational expert.Generally speaking, we review the trial court's decision to admit or exclude evidence for abuse of discretion.Gasper v. Ruffin Hotel Corp. of Md., Inc. , 183 Md. App. 211, 224, 960 A.2d 1228(2008).In this case, though, the circuit court's decision to exclude the expert's testimony ultimately depended upon a question of law, namely whether LE§ 9–602(a)(3) governs the average weekly wage of a volunteer EMT.We review the circuit court's legal decisions de novo .Richard Beavers Constr., Inc. v. Wagstaff , 236 Md. App. 1, 13, 180 A.3d 211(2018).

We"examin[e] the ordinary meaning of the enacted language, reading the statute as a whole to avoid an interpretation that might nullify another part of the statute."Id. at 14, 180 A.3d...