Preview:

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND

No. 1673 September Term, 2001

APPLIED INDUSTRIAL TECHNOLOGIES, et al. v. KEVIN R. LUDEMANN

Eyler, James R., Barbera, Bishop, John J., (Retired, specially assigned) JJ.

Opinion by Barbera, J.

Filed: December 2, 2002

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND

No. 1673 September Term, 2001

APPLIED INDUSTRIAL TECHNOLOGIES, et al. v. KEVIN R. LUDEMANN

Eyler, James R., Barbera, Bishop, John J., (Retired, specially assigned) JJ.

Opinion by Barbera, J.

Filed:

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 country. September 11, 2001 terrorist attack upon our

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. 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? 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?"

II.

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 twentynine 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 recommended

Dees Fluid and Power was purchased by Applied Industrial Technologies in December 1995.

1

-2-

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 Approximately five months after

his condition was much improved.

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. Dr. Murray. Claimant again was treated by

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 At the hearing,

held an evidentiary hearing on both claims.

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."

-3-

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 "I'm

Commission implicitly denied the amendment request, stating: not that worried about the date of the accident. concerned about the merits and the substance of the case. know that the date is a big issue."

I'm more I don't

Five days later, the Commission issued its orders denying both claims. The orders are identically worded save for the 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.

-4-

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, that Claimant on both challenged occasions the he

Commission's

decision,

contending

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 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.

-5-

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." about the dates. The court further stated: "I'm not worrying

[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. 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 sixAnd, in other

-6-

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. 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. 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? First accident: Second accident: yes____ yes____ no____ no____ The

A. B.

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.

2 Earlier that morning, terrorists had hijacked four United States commercial jet airliners. Two of the airliners were flown into the World Trade Center Towers in New York City, killing thousands of people in the crashes and subsequent collapse of the twin towers. The third airliner was flown into the Pentagon in Arlington, Virginia, killing everyone aboard the airliner and others in the building. The fourth airliner crashed into a field in western Pennsylvania when passengers attempted to wrest control of the airliner from the hijackers. Everyone aboard died. It is believed that the hijackers had intended to crash this airliner into a government building in Washington, D.C.

-7-

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 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 Md. Code (1991,

of the Commission may appeal to the circuit court.

1999 Repl. Vol., 2002 Cum. Supp.),

Download Applied v. Ludemann.pdf

Maryland Law