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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1625 September Term, 2008

MELODY ELSTE v. ISG SPARROWS POINT, LLC, ET AL.

Eyler, Deborah S., Meredith, Kehoe, JJ.

Opinion by Eyler, Deborah S., J.

Filed: October 29, 2009

This appeal arises from an order of the Workers' Compensation Commission ("Commission") awarding Melody J. Elste, the appellant, temporary total disability benefits for an injury suffered in the course of her employment with ISG Sparrows Point, LLC ("Sparrows Point"). Sparrows Point and its insurer, American Zurich Insurance Company, collectively, the appellees, petitioned for judicial review in the Circuit Court for Baltimore City on the issues of accidental injury and notice. A jury found that Elste's injury was caused by a workplace accident but that she did not give Sparrows Point timely notice of her injury. On that ground, Elste's claim was barred, and judgment was entered for the appellees. On appeal, Elste presents a single question for review, which we paraphrase: Did the trial court err in denying her motions for judgment and motion for judgment notwithstanding the verdict ("JNOV") when the employer presented no evidence that it suffered any actual prejudice as a result of a nine-day delay in receiving notice of the injury? For the reasons that follow, we answer this question in the affirmative, and therefore shall reverse the judgment of the circuit court and remand with instructions to affirm the order of the Commission.

FACTS AND PROCEEDINGS
On July 27, 2006, Elste, an employee of Sparrows Point for about 25 years, completed her normally scheduled 12-hour shift as a pit crane operator, and started working a four-hour overtime shift with the "safety team." As part of her overtime duties, she was distributing water and Gatorade to steel workers. She and a co-worker, Sharon Pritchard, rode in a company truck up a ramp to reach the "L Furnace," where they were to distribute the drinks.

Pritchard was driving and Elste was in the passenger's seat. When Elste got out of the truck and reached into the back of the vehicle to grab a bag of Gatorade drinks, her foot slipped on the gravel surface of the road, causing her to twist her right knee. Pritchard was still in the truck when Elste slipped, and did not see the accident. According to Elste, James Barrett, her supervisor, was walking up the ramp and in plain view when the accident occurred. Elste claimed she told Barrett about the injury at that time. When asked about the accident before the Commission, however, Barrett did not recall seeing it or being told about it. Following the accident, Elste was "limping a little bit." Nevertheless, she told Pritchard her knee "was just a little sore" and that she was fine and did not need to go to the dispensary for treatment. Elste subsequently experienced some swelling in her knee. She was able to complete a 16-hour shift the next day, however, and she worked her full scheduled 48-hour work-week the next week. (As a crane operator, Elste was seated for most of her shift.) On Monday, August 7, 2006, Elste went on a one-week vacation to a "camping cabin" in St. Mary's County. During the vacation, her knee became increasingly swollen. On Monday, August 14, the day after returning from her vacation, Elste called Kenneth Lippman, M.D., an orthopedic surgeon, to schedule an appointment. She saw Dr. Lippman early in the afternoon on Tuesday, August 15. He diagnosed her as having a "medial meniscal tear" and "effusion." Immediately after her appointment with Dr. Lippman, Elste went to the Sparrows Point dispensary and filled out an Accident Intake Form.
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About a month later, on September 14, 2006, Elste underwent surgery to repair her right knee. An arthroscopic examination performed before the surgery revealed a "chondral fracturing" of the patella and trochlea in addition to the previously diagnosed injuries. On October 18, 2006, Elste filed a claim for benefits with the Workers' Compensation Commission for the injury to her right knee. The Commission held a hearing on March 6, 2007, and issued a written decision on March 22, 2007. The Commission listed the issues before it as: 1. 2. Notice. Did the employee sustain an accidental personal injury arising out of and in the course of employment? Is the disability of the employee the result of an accidental personal injury arising out and in the course of employment? Temporary total disability benefits.

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The Commission found in favor of Elste on all issues: notice was timely given; Elste sustained an accidental injury to her right knee that arose out of and happened in the course of her employment; her disability resulted from that injury; and she was temporarily totally disabled. Consequently, the Commission ordered the appellees to pay all causally related medical expenses and temporary total disability benefits of $669 per week beginning September 14, 2006, and continuing for the duration of the disability.1

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The Commission also awarded a lump sum counsel fee of $1,672.50.
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The appellees sought judicial review in the Circuit Court for Baltimore City. A jury trial was held on June 12, 2008. The issues for decision were whether the injury to Elste's right knee arose out of and happened in the course of her employment and whether she gave Sparrows Point timely notice of her injury. Elste moved for judgment at the close of the appellees' case and at the close of all evidence. The court denied both motions and submitted the case to the jury for decision. The jury returned a mixed verdict. As noted, it found in favor of Elste on the issue of accidental injury but concluded that she did not give timely notice to Sparrows Point. Judgment was entered in favor of the appellees based on the notice finding. Elste moved for JNOV or, alternatively, for a new trial. The court denied the motion, and this appeal followed. Additional facts are provided below as pertinent to our discussion.

DISCUSSION
A. The notice requirement for workplace injuries is codified in Md. Code (2008 Repl. Vol., 2009 Supp.), section 9-704 of the Labor and Employment Article ("LE"), which provides in pertinent part: (b) Notice required.--If a covered employee[2] is injured or dies due to an accidental personal injury, oral or written notice shall be given to the employer:

A "covered employee" is "an individual . . . in the service of an employer under an express or implied contract of apprenticeship or hire." LE

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