• Justin Stine v. Montgomery County, Maryland,
  • August 7, 2018 | Author: Toi M. Mason
  • Law Firm: Thomas, Thomas & Hafer LLP - Baltimore Office
  • Background

    Claimant sustained and accidental injury (foot) while working as a volunteer EMT for Montgomery County. At the time of the injury, Claimant was a student studying nursing and had approximately two years before he would earn his degree. He was also a part time EMT for a private ambulance company during the school year. Claimant filed a claim for lost wages. The Commission held Claimant’s average weekly wage (AWW) to be $64.64, the average wages he earned in the fourteen weeks preceding his injuries.

    Claimant appealed to the Circuit Court for Montgomery County and requested a jury trial. Meanwhile, Claimant retained a VOC expert to support his argument that under LE 9-602(a)(3) his AWW should be based on what he likely would earn after finishing his nursing school and working full-time as an EMT/nurse. The County argued that LE 9-602(a) does not apply and that LE 9-602(g) addresses the computation of AWW of volunteer EMT’s applies instead. On the day of the trial, the court granted the County’s motion in limine to exclude the testimony of the VOC expert and the court’s motion to strike the jury and remanded the case to the Commission.

    Analysis

    When computing the AWW of a volunteer EMT, the Circuit Court is not required to apply LE 9-602(a)(3) which allows for consideration of wages that a WC claimant may expect to earn in the future, given the claimant’s age and experience but they may rely on LE 9-602(g) which governs the AWW of a volunteer EMT. When calculating the AWW, the COMAR regulation does not purport to restrict the Commission in any manner from utilizing a different time period, than fourteen weeks if the Commission deems it appropriate to do so. (Wagstaff). Lastly, with regards to a jury trial, judicial review in workers compensation cases can follow one of two “modalities”, an unadorned administrative appeal or an essential trial de novo. Claimant did not lose his right to a jury trial merely because the court excluded his expert’s testimony. With regards to the VOC expert’s testimony, testimony concerning wages the volunteer EMT might expect to earn in the future after earning nursing degree was not relevant to calculating the AWW of a volunteer EMT which was already governed by 9-602(g).

    Holding

    The circuit court erred in entering an order affirming the decision of the WCC when claimant exercised his right to jury trial pursuant to LE 9-745(d). The circuit court did not err in affirming the circuit court’s exclusion of testimony from the VOC expert’s testimony. The court erred in holding that COMAR 14.09.03.06 compelled the Commission to calculate the AWW based on average wages earned during a fourteen-week period.

    Practice tip

    When handling a claim involving a volunteer EMT, remember LE 9-602(g) governs computation of AWW, not LE 9-602(a)(3).