Justin Stine v. Montgomery County, Maryland, No. 578, September Term 2017. Opinion
       by Nazarian, J.

WORKERS’ COMPENSATION – AMOUNT AND PERIOD OF COMPENSATION
– COMPUTATION OF AVERAGE WEEKLY WAGE – EVIDENCE – EXPERT
TESTIMONY
The circuit court did not err in excluding testimony from workers’ compensation claimant’s
vocational expert. Expert testimony about wage increases the claimant might expect at
some point in the future, after earning a bachelor’s degree in nursing and passing the
requisite licensing examinations, was not relevant to the computation of the claimant’s
average weekly wage under MD. CODE ANN., LABOR & EMPL. § 9-602(g), which applied
to claimant because of his status as volunteer emergency medical technician for a fire
department. The circuit court was not required to apply section 9-602(a)(3), which allows
for consideration of wages a claimant may expect to earn in the future given his age and
experience.

WORKERS’ COMPENSATION – AMOUNT AND PERIOD OF COMPENSATION
– COMPUTATION OF AVERAGE WEEKLY WAGE
The circuit court erred in holding that COMAR 14.09.03.06 compelled the Commission to
calculate the average weekly wage based on average wages earned during a fourteen-week
period. As this Court recently clarified in Richard Beavers Constr. v. Wagstaff, that
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.” 236 Md. App. 1, 24–25 (2018) (quoting Gross v. Sessinghause & Ostergaard, Inc.,
331 Md. 37, 50 (1993)).

WORKERS’ COMPENSATION – AMOUNT AND PERIOD OF COMPENSATION
– COMPUTATION OF AVERAGE WEEKLY WAGE – PROCEEDINGS TO
SECURE COMPENSATION – REVIEW BY COURT – RIGHT TO TRIAL
DE NOVO – RIGHT TO JURY TRIAL
The circuit court erred in entering an order affirming the decision of the Workers’
Compensation Commission that set the claimant’s average weekly wage. The circuit court
instead should have proceeded with a jury trial, which the claimant had requested pursuant
to MD. CODE ANN., LABOR & EMPL. § 9-745(d). Judicial review in workers’ compensation
cases can follow one of two “modalities”: an unadorned administrative appeal or an
essential trial de novo. Where the claimant opted for an essential trial de novo and had
requested a jury, the exclusion of his expert’s testimony did not terminate his right to have
a jury decide the factual question of his average weekly wage under MD. CODE ANN.,
LABOR & EMPL. § 9-602(g).
Circuit Court for Montgomery County
Case No. 423763

                                                   REPORTED

                                      IN THE COURT OF SPECIAL APPEALS

                                                 OF MARYLAND

                                                      No. 578

                                              September Term, 2017


                                                  JUSTIN STINE

                                                         v.

                                      MONTGOMERY COUNTY, MARYLAND


                                        Meredith,
                                        Nazarian,
                                        Salmon, James P.
                                           (Senior Judge, Specially Assigned),

                                                        JJ.


                                              Opinion by Nazarian, J.


                                        Filed: June 1, 2018
       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.




1
 Mr. Stine was paid temporary total disability for the approximately two months he was
unable to work.
                                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.2 Although 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.3 The County argued that LE § 9-602(a) does not


2
  Mr. Stine’s hourly wage was listed on the 2015 summer paystubs as $11.83. He testified
during the hearing that at the time of the injury, he was earning $12.83 per hour and that at
the time of the hearing, he was earning $13.83 per hour.
3
  This all matters, counsel argued in this Court, because although Mr. Stine was only out
of work for two months, and although he had been authorized to return to work by the time
the hearing occurred, the determination of his average weekly wage at this stage in the
proceedings will establish his wage for any future workers’ compensation benefits
grounded in the same injury.

                                                 2
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-


                                                 3
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.4 Before delving into the specifics of the parties’ arguments,


4
    Mr. Stine stated the Questions Presented in his brief as follows:
                1.     Whether the trial court erred in granting the County’s
                Motion in Limine to Exclude Mr. Stine’s Vocational Expert’s
                Testimony, specifically that due to his age and experience Mr.
                Stine’s wages were “expected to increase” in accordance with
                Lab. & Employ. Art. 9-602(a)(3), which states: “[i]f the
                covered employee establishes that, because of the age and
                experience of the covered employee at the time of the
                accidental personal injury…the wages of the covered employee
                could be expected to increase under normal circumstances, the
                expected increase may be taken into account when computing
                the average weekly wage.”
                2.     Whether the trial court erred in ruling that the
                Commission and the Court were restricted, pursuant to
                COMAR 14.09.03.06, to utilizing only a fourteen (14) week
                period in calculating Mr. Stine’s Average Weekly Wage,
                given; [sic] i) that COMAR .06 deals only with the initial wage
                statement that an Employer must file with the Commission, not
                with how the fact finder determines the average weekly wage;

                                                   4
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


              ii) Sec. 9-602(a)(3)’s clear language allowing for consideration
              beyond the fourteen (14) weeks; iii) the changes in the
              language in COMAR since the appellate courts have addressed
              this issue; iv) the Court of Appeal’s [sic] decision in Gross v.
              Sessinghause & Ostergaard, Inc., and; [sic] v) the social
              purpose of the Workers’ Compensation Act for people
              seriously injured, such as Mr. Stine.
The County rephrased the Questions Presented in its brief:
              Did the trial court err in precluding Appellant’s expert
              testimony?
              Did the trial court err in finding that COMAR 14.09.03.09
              mandates a 14-week period for calculating average weekly
              wage and in not considering an average weekly wage
              calculation based on a 52-week period?


                                                  5
              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 (2009) (quoting

Bd. of Educ. for Montgomery Cty. v. Spradlin, 161 Md. App. 155, 166 (2005)). The first is

an “unadorned administrative appeal,” Spradlin, 161 Md. App. at 167, 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 Anderson, 439 Md. 381, 392 (2014); see also

Spradlin, 161 Md. App. at 173.

       Instead, Mr. Stine followed the second “modality,” an “administrative appeal plus”

authorized by LE § 9-745(d). Spradlin, 161 Md. App. at 171. 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; see also id. at 171–72. 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

(1997); see also Baltimore Cty. v. Kelly, 391 Md. 64, 74–75 (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,




                                                   6
as here, we review the decision of the circuit court. McLaughlin v. Gill Simpson Elec., 206

Md. App. 242, 252–53 (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 (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 (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

(citing Reger v. Washington Cty. Bd. of Educ., 455 Md. 68, 96 (2017)). “If the statutory

language is sufficiently clear, the interpreter normally will have no need to look beyond

the statute itself.” Id. We construe the Workers’ Compensation Act “to carry out its general

purpose.” Id. (quoting LE § 9-102(a)), i.e., “to protect workers and their families from

hardships inflicted by work-related injuries by providing workers with compensation for

loss of earning capacity resulting from accidental injury arising out of and in the course of

employment.” Id. at 14–15 (cleaned up). “[W]here the meaning of the Act is unclear, the

interpreter should resolve any uncertainty in favor of the claimant,” although the statute’s



                                                  7
plain meaning should not be ignored, nor should ambiguity be created where none exists

“simply to allow an injured worker to prevail.” Id. at 15 (cleaned up).

       Section 9-602 of the Labor and Employment Article is divided into several

subsections. The first, subsection (a), addresses computation of average weekly wage

“[e]xcept as otherwise provided” in the remainder of LE § 9-602. The other subsections,

from (b) to (l), address computation of the average weekly wage of different types of

claimants, from handicapped students to prisoners to jurors. LE § 9-602(d), (h), and (k).

Mr. Stine is a volunteer EMT. The County argues that LE § 9-602(a) does not apply at all

because § 9-602 has a subsection that specifically applies to volunteer EMT’s, namely

subsection (g). Mr. Stine does not dispute that LE § 9-602(g) applies, but argues that his

average weekly wage nevertheless should be calculated under LE § 9-602(a)(3), which, he

asserts, would allow for a finding of a higher average weekly wage.

       We begin with (a), the general computation subsection, and work our way through

it:

              (a) (1) Except as otherwise provided in this section, the
                  average weekly wage of a covered employee shall be
                  computed by determining the average of the weekly wages
                  of the covered employee:
                 (i) when the covered employee is working full time; and
                 (ii) at the time of:
                     1. the accidental personal injury . . . .
               (3) If a covered employee establishes that, because of the age
              and experience of the covered employee at the time of the
              accidental personal injury or last injurious exposure to the
              hazards of the occupational disease, the wages of the covered
              employee could be expected to increase under normal
              circumstances, the expected increase may be taken into


                                                   8
              account when computing the average weekly wage of the
              covered employee under paragraph (1) of this subsection.

LE § 9-602(a) (emphasis added). Because Mr. Stine was an EMT, though, he is “otherwise

provided,” so we skip (a) and move down to subsection (g), which provides in relevant

part:

              (g) [F]or the purpose of computing the average weekly wage
              of an individual who is a covered employee under § 9-234 of
              this title, the wages of the covered employee shall be: (i) for a
              covered employee who received a salary or wages from other
              employment at the time of the accidental personal injury . . .
              the salary or wages from the other employment . . . .

(emphasis added). As noted above, the parties do not dispute that Mr. Stine is “an

individual who is a covered employee under LE § 9-234” by virtue of his status as a

volunteer EMT.5

        Subsection (g), along with every other subsection in LE § 9-602, does not contain

any language referring back to the computation method or principles outlined in (a).

Moreover, all of the other subsections of § 9-602, including (g), contain the phrase “the

wages of the covered employee shall be,” and all of them, save one, contain the language

“for the purpose of computing the average weekly wage.”6 The presence of those phrases



5
  LE § 9-234 addresses when a member of a volunteer advanced life support unit,
ambulance company, fire department, rescue company, or fire police unit is a “covered
employee.”
6
  The one subsection that does not contain the “for the purpose of computing” language—
LE § 9-602(l)—does not change the analysis. In substance, subsection (l) is like the others
in that it contains detailed instructions for determining the average weekly wage in a
particular circumstance, namely, cases in which the employee has two or more jobs and is
seriously injured while working at the job that does not provide the primary source of
income.


                                                 9
reinforces that the average weekly wage calculation for employees covered by other

subsections does not point the Commission back to subsection (a).

       It follows, then, that the circuit court did not err in excluding testimony from

Mr. Stine’s vocational expert. Mr. Stine offered the expert to testify about the increases in

salary he might have expected over time, testimony that might have been relevant to the

subsection (a)(3) analysis (increases he might expect given his age and experience), but

wasn’t relevant to the subsection (g) question (wages he lost from his other employment).

In so holding, we do not intend to foreclose the possibility that it may be appropriate in

some instances for the Commission, in its discretion, to follow the general principles of

subsection (a) in calculating the respective amounts under the other subsections of LE § 9-

602, even if, as a matter of strict statutory interpretation, it is not required to apply them.

For example, it is doubtful that in computing average weekly wage under subsection (g),

the Commission would stray from subsection (a)’s requirement that it is the wage at the

time of the injury that should be used, or that tips should be included computing in the

wages for volunteer EMTs or firefighters who happen to earn a living on the side as

restaurant servers. See LE § 9-602(a)(2)(i). On these facts, though, the circuit court

followed the correct statutory path and did not abuse its discretion in excluding Mr. Stine’s

proffered expert testimony.

       B.     The Circuit Court Erred In Granting The County’s Motion To Strike
              The Jury.

       Second, Mr. Stine argues that the circuit court erred in not allowing his case to

proceed to a jury trial for a fresh determination of his average weekly wage. The circuit



                                                 10
court granted the County’s motion to strike the jury because, as the court read it, COMAR

14.09.03.06 required the average weekly wage to be computed from the average of the

covered employee’s wages during the fourteen-week period preceding his injury. In the

alternative, the circuit court determined that even if COMAR 14.09.03.06 did not impose

such a requirement, there was no issue of fact for the jury to decide because the

Commission had the discretion not to use the average of Mr. Stine’s wages over a fifty-

two-week period.

         The circuit court erred in two respects. First, we disagree that COMAR 14.09.03.06

compelled the Commission to calculate the average weekly wage from a fourteen-week

sample. As we recently clarified in Wagstaff (which was decided after the circuit court’s

decision), that 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.” 236 Md. App. at 24–25 (quoting Gross v. Sessinghause &

Ostergaard, Inc., 331 Md. 37, 50 (1993)). And indeed, the regulation contains nothing

requiring the fourteen-week time period in all cases. The only reference to a fourteen-week

period appears in COMAR 14.09.03.06(B), which requires the employer or its insurer to

file a wage statement as part of the initial proceedings before the Commission. 7 That



7
    COMAR 14.09.03.06 provides in relevant part:
               A. Preliminary Determination. For the purpose of making an
               initial award of compensation before a hearing in the matter,
               the Commission shall determine the claimant’s average weekly
               wage from gross wages, including overtime, reported by the
               claimant on the employee’s claim form.


                                                11
statement must include the “average wage earned by the claimant during the 14 weeks

before the accident,” COMAR 14.09.03.06(B), and it appears that in practice, the

Commission generally makes its initial determination of average weekly wage based on

the average wages earned during that timeframe. See 1 CLIFFORD B. SOBIN, MARYLAND

WORKERS’ COMPENSATION § 11:2 at 279 (2017); THEODORE B. CORNBLATT, WORKERS’



            B. Filing of Wage Statement. As soon as practicable, the
            employer/insurer shall file a wage statement containing the
            following information:
            (1) The average wage earned by the claimant during the 14
            weeks before the accident, excluding the time between the end
            of the last pay period and the date of injury, provided that
            periods of involuntary layoff or involuntary authorized
            absences are not included in the 14 weeks;
            (2) Those weeks the claimant actually worked during the 14
            weeks before the accident;
            (3) Vacation wages paid; and
            (4) Those items set forth in Labor and Employment Article, §9-
            602(a)(2), Annotated Code of Maryland.
            C. Determination at First Hearing.
            (1) Calculation of the average weekly wage shall be
            adjudicated and determined at the first hearing before the
            Commission.
            (2) All parties shall be prepared to produce evidence from
            which the Commission can determine an accurate average
            weekly wage at the first hearing.
            (3) If the Commission determines that an inaccurate average
            weekly wage resulted in the overpayment or underpayment of
            benefits, the Commission may order:
            (a) A credit against future permanent disability benefits;
            (b) The payment of additional compensation; or
            (c) Any other relief the Commission determines is appropriate
            under the circumstances. . . .


                                              12
COMPENSATION MANUAL at Chapter 1, section VII.B., 18th ed. (The Maryland State Bar

Assoc., Inc., 2017). But the regulation does not restrict the determination of average weekly

wage to that time period, and allows the Commission to consider other evidence in setting

the average weekly wage at a hearing, if one is held. COMAR 14.09.03.06(C);

see Wagstaff, 236 Md. App. at 24–25.

       Second, the circuit court erred in granting the County’s motion to strike the jury and

then entering an order affirming the Commission’s decision without going forward with

the trial. Again, judicial review in workers’ compensation cases is unusual because the

parties have two options: an unadorned administrative appeal or an essential trial de novo.

S.B. Thomas, 114 Md. App. at 366–67 (recognizing the right to an “essential trial de novo”

before the circuit court, which gives the challenger “the opportunity for a de novo factual

determination”). In his petition for judicial review, Mr. Stine opted for an essential trial de

novo, and the exclusion of his expert’s testimony under LE § 9-602(a)(3) did not terminate

his right to have a jury decide the factual question of his average weekly wage under LE

§ 9-602(g). The circuit court phrased its ruling as if it were deciding a summary judgment

motion or a motion for judgment:

              So, under any theory, whether it’s a trial or a summary
              judgment my ruling would be the same that is the Commission
              acted properly, legally, not arbitrarily, not capriciously, and
              there was no abuse of discretion, even if they had that
              discretion, but it was a well-argued case, and it’s an interesting
              area of the law.

But there was no motion for summary judgment or motion for judgment before the circuit

court at the time of this ruling. Mr. Stine had filed his petition for judicial review, then a



                                                 13
request for a jury trial, which transformed the procedural posture of the case to an essential

trial de novo, which means that the Commission’s decision was not subject to review by

the circuit court. For that reason, we reverse the circuit court’s grant of the County’s motion

to strike and remand to the circuit court for additional proceedings consistent with this

opinion.

                                           JUDGMENT OF THE CIRCUIT COURT
                                           FOR     MONTGOMERY        COUNTY
                                           AFFIRMED IN PART, REVERSED IN
                                           PART     AND    REMANDED      FOR
                                           PROCEEDINGS CONSISTENT WITH
                                           THIS OPINION. COSTS TO BE DIVIDED
                                           EQUALLY.




                                                 14
