United Parcel Service v. Strothers , 482 Md. 198 ( 2022 )

United Parcel Service, et al. v. David Strothers, No. 9, September Term, 2022. Opinion
by Eaves, J.
LABOR AND EMPLOYMENT — WORKERS’ COMPENSATION
The Court of Appeals held that the phrase “definite proof,” as used in § 9-504(a)(1) of the
Labor and Employment Article, refers to the quality of evidence required by a workers’
compensation claimant’s burden of production for an accidental hernia and does not elevate
the claimant’s burden of persuasion to clear and convincing evidence.
LABOR AND EMPLOYMENT — WORKERS’ COMPENSATION
The Court of Appeals held that Respondent’s submitted medical opinion satisfied his
burden to produce definite proof that his hernia was new and that the Workers’
Compensation Commission did not misconstrue the law in finding that Respondent met
both his burdens of production and persuasion.
Circuit Court for Howard County
Case No. C-13-CV-20-000370
Argued: September 13, 2022
IN THE COURT OF APPEALS
OF MARYLAND
No. 9
September Term, 2022
UNITED PARCEL SERVICE, ET AL.
v.
DAVID STROTHERS
Watts,
Hotten,
Booth,
Biran,
Gould,
Eaves,
Raker, Irma S.
(Senior Judge, Specially Assigned)
JJ.
Opinion by Eaves, J.
Filed: December 1, 2022
Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State
Government Article) this document is authentic.
2022-12-01 16:10-05:00
Gregory Hilton, Clerk
In a case of first impression, we are tasked with determining the proper application
of the phrase “definite proof” in § 9-504(a) of the Workers’ Compensation Act (the “Act”),
Md. Code Ann. (1991, 2016 Repl. Vol., 2021 Supp.),1 in the Labor and Employment
(“L&E”) Article. Specifically, does that phrase reference the quality of evidence a
workers’ compensation claimant is required to submit, or does it signify the claimant’s
burden of proof and elevate that burden from a preponderance of the evidence to clear and
convincing evidence?
Respondent, David Strothers, an employee of United Parcel Service (“UPS”),
developed in September 2019 and in the course of his employment a hernia. He filed a
claim with the Maryland Workers’ Compensation Commission (the “Commission”),
seeking compensation for that injury. The Commission granted his request, finding that
(1) Respondent sustained an accidental injury during employment; (2) Respondent’s
current hernia was the result of the aforementioned accidental injury; and (3) Respondent,
as a result of the hernia, was totally disabled from September 20, 2019, to January 21, 2020,
inclusive. Petitioners (UPS and its insurer, Liberty Mutual Insurance) sought judicial
review in the Circuit Court for Howard County, which affirmed the Commission.
Petitioners appealed to the Court of Special Appeals, which affirmed in a reported opinion.
United Parcel Serv. v. Strothers, 253 Md. App. 708 (2022).
1
Since oral arguments in this case, the 2022 supplement to the L&E Article has
been published, but § 9-504(a) remains unchanged.
We granted certiorari, 478 Md. 511 (2022), for the following three questions, which
we slightly have rephrased2:
1. Did the Court of Special Appeals err when it held that “definite proof” under L&E
§ 9-504(a)(1) applies to the quality of evidence presented and not the standard of
proof a claimant must meet?
2. Did the Court of Special Appeals err when it found that Respondent met his burden
of persuasion when producing medical evidence to a preponderance of the evidence
standard, the standard applicable to all other claims submitted before the
Commission?
3. Did the Court of Special Appeals err when it held that the phrase “immediate
operation is needed,” under L&E § 9-504(a)(1)(ii), applies to the recommendation
and need for surgery and not the timing of the surgery?
2
The questions originally presented to the Court read as follows:
1. Did the Court of Special Appeals err when, in a case of first impression, it held,
contrary to the plain language and legislative history of Md. Code Ann., Lab. &
Empl. § 9-504, that “definite proof” applies to the quality of evidence presented,
and not the standard of evidence presented; when the same quality of evidence
is required in all claims presented before the Workers’ Compensation
Commission?
2. Did the Court of Special Appeals err when it found that the Respondent/Appellee
met his burden of production when producing medical evidence to a
preponderance of the evidence standard, a standard by which all other claims
submitted before the Workers’ Compensation Commission must meet; despite
the fact evidence existed that the Respondent’s hernia existed before the alleged
accidental injury?
3. Did the Court of Special Appeals err when, in a case of first impression, it held,
contrary to the plain language and legislative history of Md. Code Ann., Lab. &
Empl. § 9-504, that “immediate operation is needed” applies to the
recommendation and need for surgery and not the timing of the surgery, finding
59 days to be “immediate”?
2
Because we answer the first two questions in the negative, we decline to address the third.3
See Bryant v. State, 374 Md. 585, 600 (2003) (noting that the Court may decline to address
all questions raised in a petition for certiorari if answering fewer questions can resolve the
entire appeal). Our reasons follow.
I. BACKGROUND
A. Statement of Facts
Respondent’s history of work-related hernias begins in May 2016 when, as an
employee of UPS, he injured himself during employment while attempting to dislodge a
jam on a sorter chute.4 In his September 2016 report, Dr. Joshua B. Macht noted that
Respondent suffered a left inguinal hernia and umbilical hernia. According to the report,
there were “anatomical changes with scarring and insertion of foreign material to complete
the repair[,]” which resulted in pain with loss of function and endurance. Dr. Macht
believed that Respondent’s hernia causally was related to the May 2016 work injury.
Respondent subsequently filed a claim for workers’ compensation, and the Commission
granted the claim, finding that his hernia qualified as a permanent partial disability.
On September 17, 2019, Respondent sustained another work-related injury while
manually relocating a load of pallets from one trailer to another,5 and he advised his
3
We more thoroughly address below our reasons for declining to answer this
question. See infra n.11.
4
Respondent also suffered an unrelated hernia some 20 years prior. Whether that
was work related or not is not borne out by the record.
5
At the Commission hearing, Respondent testified that the pallet jack he was using
jammed, requiring him to manually move the pallets.
3
supervisor of the injury. He then presented to Howard County General Hospital (“HCGH”)
with right-side abdominal pain and nausea. Respondent underwent a computerized
tomography (“CT”) scan of his abdomen, which revealed a 3.3-centimeter paraumbilical
hernia seen containing fat that appeared slightly increased in size when compared to
imaging of the May 2016 hernia. It was recommended that Respondent follow up with his
primary care physician or a general surgeon within one week. The following day,
Respondent filed with the Commission a First Report of Injury or Illness, describing his
injury.
HCGH originally scheduled Respondent to undergo surgical repair on September
30 with Dr. James Harris, the surgeon who repaired Respondent’s May 2016 hernia. Dr.
Alan B. Kravitz eventually performed surgery, however, on November 14, 2019.6 On
January 15, 2020, Dr. Robert W. Macht evaluated Respondent and prepared a written
report. He noted that Respondent “had no recurrence of [the May 2016] umbilical hernia
at the time of his evaluation in this office, in September of 2016.” Dr. Macht opined, to a
reasonable degree of medical certainty, that Respondent “developed a new onset of an
umbilical hernia at the time of [Respondent’s] accident, on September 17, 2019.”
B. Procedural History
The Commission held a hearing on February 12, 2020. The parties’ agreement
began and ended with the fact that Respondent’s September 2019 hernia is unrelated to his
6
At the hearing before the Commission, counsel for Respondent stated that surgery
was delayed because Petitioners were required to authorize Respondent’s surgery and
refused. Respondent, therefore, sought out Dr. Kravitz and scheduled the surgery for
November 14, 2019.
4
May 2016 hernia. Respondent argued that his September 2019 hernia was an entirely new
hernia. Petitioners, on the other hand, asserted that there was “absolutely no causal
relationship from any medical provider” showing that this hernia was related to
Respondent’s September 2019 work injury and that the current hernia was aggravated by
a preexisting lateral hernia Respondent sustained “some 20 years prior.” Their argument
went something like this: Because (1) the 20-year-old hernia was indicated as lateral, (2)
the May 2016 hernia was a left inguinal and umbilical hernia, and (3) the September 2019
hernia was on the right side but ultimately was labeled just as an umbilical hernia (with no
side indicated), then (4) it was more likely that the most recent hernia was an aggravation
of the 20-year-old hernia. 7 Respondent testified at the hearing, however, that the 20-year-
7
We note that Petitioners appear to have shifted course regarding their theory of
causation for Respondent’s current hernia. In this Court, they seem to adopt the view that
Respondent’s current hernia is an aggravation of the May 2016 hernia. Such a shift is
evidenced by their multiple in-brief references to the HCGH records suggesting that his
current hernia was enlarged when compared to the imaging for the May 2016 hernia. To
be sure, at the Commission hearing, they specifically noted that “regarding the 2016
[hernia], no doctor does causally relate it[.]” Petitioners conceded that Respondent had
“Dr. Macht saying [the September 2019 hernia] wasn’t a recurrence,” but that they instead
took issue with the fact that Dr. Macht did not mention “the [20-year-old] umbilical surgery
that [Respondent] had had before.” In the circuit court, Petitioners advanced the same
argument—that Dr. Macht’s opinion did not “address the surgery [Respondent] had twenty
years prior.” Petitioners did, however, state in the circuit court that they “introduce[d]
evidence by the diagnosing physician at the time of the alleged hernia that the finding of
the umbilical [hernia] was in fact . . . the same hernia [Respondent] had . . . experienced in
2016.” This, of course, refers to the HCGH records, but Petitioners conceded that no
medical expert linked the 2016 and 2019 hernias and persistently advanced their position
that Dr. Macht’s opinion failed to consider the 20-year-old hernia.
We will not credit Petitioners’ new argument. As we often have stated, “[q]uestions,
including Constitutional issues that could have been but were not presented to the
administrative agency may not ordinarily be raised for the first time in an action for judicial
review.” Allmond v. Dep’t of Health & Mental Hygiene, 448 Md. 592, 606 (2016)
(emphasis in original) (quoting Bd. of Physician Quality Assurance v. Levitsky, 353 Md.
5
old hernia was in his right-groin area. When asked on what medical evidence Petitioners
planned to rely, they confirmed that they had none and were relying on the fact that
Respondent had not met his burden to show by definite proof that his (1) September 2019
hernia was new and (2) surgery was “immediate,” as contemplated by L&E § 9-
504(a)(1)(ii).
In its March 9, 2020, Award of Compensation, the Commission found that (1)
Respondent sustained an accidental injury during employment; (2) Respondent’s current
hernia was the result of the aforementioned accidental injury; and (3) Respondent, as a
result of the hernia, was totally disabled from September 20, 2019, to January 21, 2020,
188, 208 (1999)). In Allmond, we noted that Maryland Rule 8-131(a) gives this Court
“discretion to address unpreserved issues[,]” id., but that we normally “do not exercise this
discretion, because it is best to allow a ‘proper record [to] be made with respect to the
challenge’ and ‘the other parties and the trial judge [to be] given an opportunity to consider
and respond to the challenge[,]’” id. (alterations in original) (quoting Chaney v. State, 397
Md. 460, 468 (2007)). We exercised our discretion to address an unpreserved argument in
Allmond, noting that “[d]eciding the facial constitutionality of [a statute] against a
substantive due process challenge[ ]” was a “rare instance” in which said discretion was
warranted “because none of the considerations recited above weigh[ed] against addressing
the constitutional issue in th[at] case.” Id. at 606, 607. There, we noted the uniqueness of
the statute being challenged, the lack of a record needed for a facial challenge, and the fact
that Petitioner, despite not bringing his facial challenge to the administrative agency, did
raise it in the circuit court. Id. at 607.
Those rare circumstances are absent from this case. There are no constitutional
concerns. Petitioners merely are attempting to switch their litigation position regarding
causation of Respondent’s September 2019 hernia. That is something that easily and
clearly could have been argued to the Commission and the circuit court, but Petitioners
couched their argument on Dr. Macht’s failure to discuss Respondent’s 20-year-old
surgery. Even if we did consider this argument, Dr. Macht in no uncertain terms stated
that Respondent’s September 2019 hernia was unrelated to the May 2016 incident and was
indeed a new hernia. Thus, we likewise would hold that, had this argument been preserved,
Dr. Macht’s opinion still would have constituted definite proof, which would have satisfied
Respondent’s burden of persuasion by a preponderance of the evidence.
6
inclusive. Petitioners filed a request for rehearing. In response, Respondent submitted to
the Commission a letter with an attached medical opinion from Dr. Kravitz, which stated
that Respondent’s hernia was “more likely than not caused by September 2019 injury.”
The Commission denied the request for rehearing.
Petitioners sought judicial review8 in the Circuit Court for Howard County, which
held a hearing on August 27, 2020. The circuit court squarely framed the issue: “[W]hether
or not the Commission was correct in its assessment of the hernia as a new hernia”; “if it
is a new hernia then UPS foots the bill. If it is an old hernia that’s been aggravated then it
needs to have an immediate operation before they foot the bill.” Petitioners argued that
Respondent did not meet his burden under L&E § 9-504(a)(1) to prove his claim by definite
proof, alleging that the phrase indicates evidence free of all ambiguity, uncertainty, or
obscurity. The circuit court sustained the Commission’s ruling, finding that the phrase
“definite proof” did not create a higher burden of proof for hernia claims and that the
Commission’s determination that Respondent suffered a new hernia was not error.
In a reported opinion, the Court of Special Appeals affirmed the circuit court,
holding that definite proof refers to the quality of evidence needed to succeed in a hernia
claim, Respondent’s expert medical opinion qualified as definite proof under the statute,
Respondent satisfied the Commission by a preponderance of the evidence that his
September 2019 hernia was new, and that his hernia surgery was “immediate.” Strothers,
253 Md. App. at 722–25.
8
Such review is authorized under L&E § 9-737.
7
II. STANDARD OF REVIEW
The Commission’s decision is presumed to be prima facie correct, and Petitioners
bear the burden of proving otherwise. See L&E § 9-745(b). Maryland courts may review
a decision of the Commission for only three types of error: whether the Commission (1)
justly considered all of the facts about the accidental personal injury, occupational disease,
or compensable hernia; (2) exceeded the powers granted to it under [the Act]; or (3)
misconstrued the law and facts applicable. Id. § 9-745(c). Petitioners’ appeal concerns
only the third ground. In conducting our review, we analyze the Commission’s decision
and look through the decisions of both the circuit court and Court of Special Appeals. See
Montgomery Cty. v. Cochran, 471 Md. 186, 208 (2020).
If we review an agency’s decision for an alleged error of law, such as here where
Petitioners allege an incorrect interpretation of a statute, then we do so under the de novo
standard. See id. (noting that the statutory presumption of correctness “does not extend to
questions of law, which this Court reviews independently” (quoting Elec. Gen. Corp. v.
LaBonte, 454 Md. 113, 131 (2017))).
III. ANALYSIS
A. The Parties’ Contentions
Petitioners’ challenge is twofold. They first argue that “definite proof” under L&E
§ 9-504(a)(1) references Respondent’s burden of proof in establishing his claim. In their
view, the phrase imposes upon Respondent a burden of clear and convincing evidence, as
opposed to merely a preponderance of the evidence. They then assert that, under the clear-
and-convincing standard, the Commission erred when it found that Respondent met that
8
burden. Respondent counters that definite proof refers to the quality of evidence needed
for a hernia claim and that the phrase does nothing to alter the burden of proof for all
workers’ compensation claims: a preponderance of the evidence. When analyzed under
this lens, Respondent argues that we cannot say that the Commission misconstrued the law.
To make clear the parties’ positions, we think it best to distinguish between various
legal concepts. A party’s burden of proof is its “duty to prove a disputed assertion or
charge[,]” and that term “includes both the burden of persuasion and the burden of
production.” Burden of proof, Black’s Law Dictionary (11th ed. 2019) (emphases in
original). When Respondent argues that definite proof relates to the quality of evidence
needed, he believes that it refers to the quality of the evidence he must put forth to satisfy
his “duty to introduce enough evidence on an issue to have the issue decided by the fact-
finder, rather than decided against [him] in a peremptory ruling such as a summary
judgment or a directed verdict.” Burden of production, id. When Petitioners argue that
definite proof heightens Respondent’s burden of proof to the clear-and-convincing
standard, they argue that the phrase elevates Respondent’s overall “duty to convince the
fact-finder to view the facts in a way that favors [Respondent].” Burden of persuasion, id.
Thus, we will refer to the Parties’ respective positions using the phrases “burden of
production” and “burden of persuasion.”
We believe that Respondent’s interpretation carries the day. Under L&E § 9-
504(a)(1), the phrase “definite proof” refers to the quality of evidence under a claimant’s
burden of production, rather than creating a heightened clear-and-convincing burden of
persuasion. When a claimant files a workers’ compensation claim for a hernia, he or she
9
first bears the burden of producing definite proof that the hernia is a new hernia; or, if the
hernia was preexisting, that it became so aggravated, incarcerated, or strangulated as a
result of the accidental personal injury or strain that an immediate operation was needed.
If the claimant fails to meet that burden of production, then the Commission must deny the
claim outright. If, on the other hand, the claimant does submit definite proof, satisfying
his or her burden of production, then the employer and/or insurer has the option to submit
evidence to rebut the claimant’s definite proof. At the end of the day, however, the
claimant always bears the burden of persuading the Commission by a preponderance of the
evidence. Our reasoning follows.
B. Interpreting the Act
When we engage in statutory interpretation, we must “ascertain and effectuate the
real and actual intent of the Legislature[,]” Westfield Ins. v. Gilliam, 477 Md. 346, 370
(2022) (quoting Gardner v. State, 420 Md. 1, 8 (2011)), and we naturally start with the
“text of the statute and the statutory scheme of which it is part[,]” id. (citing Nationstar
Mortg. LLC v. Kemp, 476 Md. 149, 169 (2021)). “One of the first tenets of statutory
construction is to accord language its ordinary meaning.” Cochran, 471 Md. at 221 (citing
LaBonte, 454 Md. at 131). In Montgomery County v. Deibler, we stated that, “[w]hen the
meaning of [the Act’s] plain language is ‘clear and unambiguous,’ our interpretative task
is at an end.” 423 Md. 54, 60 (2011) (quoting Wal Mart Stores, Inc. v. Holmes, 416 Md.
346, 359 (2010)).
Only when we determine that the Act’s “plain language is ambiguous or unclear,
[do] we seek to discern the intent of the legislature from surrounding circumstances, such
10
as legislative history, prior case law, and the purpose upon which the statutory framework
was based.” Id. (quoting Brietenbach v. N.B. Handy Co., 366 Md. 467, 473 (2001)). But
in interpreting the Act, we realize that “additional principles of interpretation enter the
equation[,]” namely consideration that the Act is a “remedial statute.” Id. at 61. As such,
we construe it “as liberally in favor of the injured employees as its provisions will permit
in order to effectuate its benevolent purposes.” Id. (quoting Design Kitchen & Baths v.
Lagos, 388 Md. 718, 724 (2005)). Despite those benevolent purposes, we must exercise
judicial restraint and avoid “stifl[ing] the plain meaning of the Act . . . so that the injured
worker may prevail.” Id. (quoting Brietenbach, 366 Md. at 473).
We acknowledge that, in typical cases of statutory interpretation involving an
executive agency, we give a degree of deference to the agency’s—here, the
Commission’s—expertise and interpretation of statutes that it administers, and this
especially is true when we are confronted with a truly ambiguous statute. See Cochran,
471 Md. at 208. As our analysis bears out, however, § 9-504(a) is not ambiguous.
Furthermore, while the Commission is the only entity tasked with administering § 9-504(a),
it is not a party to this suit, advocating for any specific interpretation of definite proof. Nor
has the Commission advanced below any specific interpretation of definite proof. Thus,
administrative deference is a non-issue in this case.
1. Plain language
Under the Act, “[e]xcept as otherwise provided, each employer of a covered
employee shall provide compensation in accordance with this title to . . . the covered
11
employee for an accidental personal injury sustained by the covered employee[,]”9 L&E §
9-501(a)(1), and such compensation is provided “regardless of fault as to a cause of the
accidental personal injury[,]” id. § 9-501(b). Hernias are, however, treated differently than
all other accidental personal injuries. Section 9-504(a)—the sole provision at issue in this
case—states in its entirety:
Except as otherwise provided, an employer shall provide compensation in
accordance with this title to a covered employee for a hernia caused by an
accidental personal injury or by a strain arising out of and in the course of
employment if:
(1) the covered employee provides definite proof that satisfies the
Commission that:
(i) the hernia did not exist before the accidental personal injury or strain
occurred; or
(ii) as a result of the accidental personal injury or strain, a preexisting
hernia has become so aggravated, incarcerated, or strangulated that an
immediate operation is needed; and
(2) notwithstanding any other provision of this title about notice, the
accidental personal injury or strain was reported to the employer within 45
days after its occurrence.
(Emphasis added). The phrase “definite proof” is not defined in the Labor and
Employment Article and, to complicate matters further, is found nowhere else in the entire
9
A covered employee is “an individual listed in Subtitle 2 of this title for whom a
person, a governmental unit, or a quasi-public corporation is required by law to provide
coverage under this title.” L&E § 9-101(f). Section 9-202(a) states that an individual is
“presumed to be a covered employee while in the service of an employer under an express
or implied contract of apprenticeship or hire.” The title applies to, among others, each
“corporation that has at least 1 covered employee.” Id. § 9-201.
As pertinent to this case, L&E § 9-101(b) defines “accidental personal injury” as
“an accidental injury that arises out of and in the course of employment[.]”
12
Maryland Annotated Code—not once. We, thus, recognize that we are confronted with a
unique term of art.
We have not had the occasion to interpret the phrase and, therefore, begin with the
plain meaning of “definite proof” in L&E § 9-504(a). At the time of enactment, the words
“definite” and “proof” meant “[h]aving distinct or certain limits[,]” “[c]lear and
unmistakable in meaning; precise in detail; explicit; unequivocal[,]” “[s]erving to define or
restrict; limiting; determining[,]” Definite, Webster’s New International Dictionary of the
English Language (2d. 1934) [hereinafter Webster’s 1934], and “[t]hat degree of cogency,
arising from evidence, which convinces the mind of any truth or fact and produces belief,”
Proof, id. The General Assembly has not enacted any other modifying or descriptive
language to that phrase. Thus, we have no reason to ascribe to those words anything other
than their ordinary meaning at the time the phrase was codified. Nevertheless, there is no
indication—in L&E § 9-504(a) alone—that conveys whether that phrase is applied to a
claimant’s burden of production or burden of persuasion.
Petitioners latch onto the definition of “definite” provided by the Court of Special
Appeals in its opinion below. Strothers, 253 Md. App. at 717 (providing a 2021 definition
of “definite”). Petitioners’ faith is, however, misplaced. The requirement for definite proof
in hernia claims has existed since 1931, and that phrase has remained unchanged to this
day. We acknowledge that, even in 1934, “definite” could mean unequivocal, but the
definition cited above overwhelmingly supports the conclusion that—circa 1934—
something that is “definite” is “precise in detail[]”; it is meant to “restrict[]” or “limit[]”
the noun it modifies. Definite, Webster’s 1934. In this case, “definite” serves to restrict or
13
limit the type of proof needed to show that the September 2019 hernia was indeed a new
hernia. Thus, as we see it, definite proof references the evidence’s quality at the burden-
of-production stage.
Adopting Petitioners’ argument and applying their preferred definition of “definite”
(“free of all ambiguity, uncertainty or obscurity, unquestionable, decided”), see Strothers,
253 Md. App. at 717, would result in an oddity by going above and beyond the clear-and-
convincing burden of persuasion for which Petitioners now advocate. To require a
claimant to submit evidence that is concrete and beyond any legitimate dispute, i.e., an
opinion made with absolute medical certainty, is a task just shy of an impossibility and a
standard we require in no other setting.
We nevertheless agree with Petitioners’ overarching contention—that the
requirement of definite proof for hernia claims must mean that those claims somehow differ
from every other claim for an accidental injury. See Wheeling v. Selene Fin. LP, 473 Md.
356, 384 (2021) (“We will not interpret a statute in a manner so as to render a ‘word, clause,
sentence, or phrase . . . surplusage, superfluous, meaningless, or nugatory[.]’” (alterations
in original) (quoting Breslin v. Powell, 421 Md. 266, 287 (2011))). Where we disagree
with Petitioners, and where they further press us, is their assertion that every workers’
compensation claim requires expert medical testimony to establish a causal connection
between a sustained work injury and a present disability. They argue that definite proof
logically cannot speak to the quality of the evidence, because the quality of medical
evidence needed in both hernia and non-hernia claims is the same—evidence to a
reasonable degree of medical certainty. Petitioners’ argument falls short, as we illustrate.
14
We have stated that an expert medical opinion is required “only ‘when the subject
of the inference [in front of the factfinder] is so particularly related to some science or
profession that it is beyond the ken of the average layman’ and is not required ‘on matters
of which the [factfinder(s)] would be aware by virtue of common knowledge[.]’” Bean v.
Dep’t of Health & Mental Hygiene, 406 Md. 419, 432 (2008) (quoting CIGNA Prop. &
Cas. Cos. v. Zeitler, 126 Md. App. 444, 463 (1999)). Whether the issue of causation “is
deemed a ‘complicated medical question’ requiring expert medical testimony cannot be
reduced to a ‘hard and fast rule controlling all cases.’” Kelly v. Balt. Cty., 161 Md. App.
128, 146 (2005) (quoting Am. Airlines Corp. v. Stokes, 120 Md. App. 350, 356 (1998)),
aff’d, 391 Md. 64 (2006). There is no general requirement in the Act that claimants always
submit an expert medical opinion to prevail on their claim, and we can find no support in
our case law countenancing Petitioners’ broad assertion to the contrary. Their argument,
therefore, has no basis in law and must fail. Petitioners further overlook the simple fact
that not all medical opinions are of equal probative value.10 There are various indicia of
reliability that a factfinder can assess to determine the quality of the opinion put forth by
the claimant, see infra Part III.D, and such an assessment must be done on a case-by-case
basis.
10
Because Respondent put forth expert medical evidence in this case, we offer no
opinion as to whether the phrase “definite proof” always requires a hernia claimant to
submit an expert medical opinion. We simply hold that the phrase references the quality
of evidence that the claimant must submit as part of his or her burden of production.
15
2. Statutory Purpose
Because the Act “provides remedies not available at common law, the statute is
remedial.” Andrews & Lawrence Prof. Servs., LLC v. Mills, 467 Md. 126, 162 (2020)
(quoting Lockett v. Blue Ocean Bristol, LLC, 446 Md. 397, 424 (2016)). We have said
many times that the “purpose of the Act is to protect workers and their families from
hardships inflicted by accidental work-related injuries and occupational diseases.” Matter
of Collins, 468 Md. 672, 686 (2020) (citing Gang v. Montgomery Cty., 464 Md. 270, 278
(2019)). And the General Assembly requires that the Act “be construed to carry out its
general purpose.” L&E § 9-102(a). Thus, we especially are sensitive to the General
Assembly’s intent.
There currently are more than one million hernia repairs performed each year. See
161 Am. Jur. Trials 443 § 1 (2019, Sept. 2022 update). Because anything that causes an
increase in abdominal pressure can cause a hernia, see id. § 3 (noting obesity, lifting heavy
objects, diarrhea or constipation, persistent coughing or sneezing, poor nutrition, smoking,
and overexertion as risk factors for developing a hernia), the General Assembly had good
reason to require more, i.e., definite proof, of claimants seeking work-related compensation
for hernias. See Bethlehem Steel Co. v. Ziegenfuss, 187 Md. 283, 288 (1946) (noting that
the purpose of originally distinguishing hernia claims from other accidental injures was “to
gain greater assurance that hernias compensated for have in fact resulted from accidental
strains”).
Respondent’s proposed construction strikes a harmonious balance between both the
statute’s remedial purpose and the General Assembly’s desire to require more from hernia
16
claimants (based on its concern with compensating hernias that truly arise out of a
claimant’s employment). To adopt Petitioners’ proposed construction, that the phrase
“definite proof” elevates a hernia claimant’s burden of persuasion from a preponderance
of the evidence to clear and convincing evidence, would undermine the Act’s remedial
purpose.
We further note, however, that the General Assembly distinguished in 1931 hernia
claims from all other accidental injury claims, and the requirement for definite proof has
existed for as long as the distinction itself. See 1931 Md. Laws, ch. 363; see also
Ziegenfuss, 187 Md. at 286. Since the Labor and Employment Article’s recodification,
there have been three amendments to what is now § 9-504(a). See 2020 Md. Laws, ch.
582; 1992 Md. Laws, ch. 22; 1991 Md. Laws, ch. 21. At no point has the General Assembly
altered the statute’s language to indicate that definite proof somehow always meant that a
claimant had a burden of clear and convincing evidence. Assuming Petitioners are correct,
the Commission would have been applying for about 90 years without challenge the
incorrect burden of persuasion for hernia claimants. We find such an incongruence
unlikely.
For the reasons discussed above, based on the Act’s plain language and remedial
purpose, we agree with the Court of Special Appeals’ interpretation that the phrase
“definite proof” applies to the quality of evidence required by Respondent under his burden
of production.
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C. The “Clear and Convincing” Standard and the General Assembly’s Use of That
Standard Elsewhere
Our State recognizes “only three standards of proof: ‘[t]he lowest standard requires
proof by a “preponderance” of the evidence; the highest standard demands proof “beyond
a reasonable doubt;” an intermediate standard calls for proof that is “clear and
convincing.”’” Urban Site Venture II Ltd. v. Levering Assocs., 340 Md. 223, 228 (1995)
(alteration in original) (quoting Wills v. State, 329 Md. 370, 374 (1993)). Thus, the clear-
and-convincing standard is the most demanding burden of persuasion in a civil case. We
provide the following definition of clear and convincing to juries: “To be clear and
convincing, evidence should be ‘clear’ in the sense that it is certain, plain to the
understanding, and unambiguous and ‘convincing’ in the sense that it is so reasonable and
persuasive as to cause you to believe it.” MPJI-CV 1:15.
The General Assembly is knowledgeable in the different burdens of persuasion
employed throughout the judicial system and has, when it so desired, placed upon
individuals the burden of clear and convincing evidence. Our Annotated Code is replete
with examples of the General Assembly’s ability to impose a higher burden of persuasion
when that is its desired goal. See, e.g., Md. Code Ann., Crim. Proc. § 12-312(a) (imposing
the clear and convincing standard for forfeiture of ownership interest in property); Md.
Code Ann., Elec. Law § 12-204(d) (the same for certain contested election matters); Md.
Code Ann., Est. & Trusts § 13-712(b) (the same for a court to determine whether an
incapacitated individual would desire to cease life support); Md. Code Ann., Fam. Law §
5-323(b) (the same for a finding of parental unfitness for a nonconsensual grant of
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guardianship); Md. Code Ann., Health—Gen. § 10-632(e)(2) (the same for involuntary
admission to a mental health facility).
Common among these examples of when the General Assembly requires the clear-
and-convincing burden of persuasion is that they revolve around serious matters that can
have drastic, life-altering consequences: deprivation of property, election outcomes,
potentially ending life, disrupting a family, and involuntary hospitalization. We seriously
doubt that the General Assembly intended to impose the same, exacting standard for such
heavy determinations for workers seeking to be compensated for an on-the-job hernia. See
2 McCormick on Evid., § 340 (8th ed. July 2022 update) (noting the various types of cases
requiring the clear-and-convincing standard and not including workers’ compensation
claims). This doubt is amplified when one considers the remedial purpose of the statute,
as discussed above. See supra Part III.B.2. Thus, that the General Assembly chose not to
require in direct and clear terms the clear-and-convincing burden of persuasion—when it
knows well how to do so—counsels against a finding that definite proof references
anything more than the quality of evidence that a claimant must offer as part of his or her
burden of production. Indeed, it would be an anomaly if the General Assembly wanted
workers, the remedial Act’s intended beneficiaries, “to shoulder one of the highest burdens
extant in the law: proof by clear and convincing evidence.” United States v. Kaluna, 192
F.3d 1188, 1204 (9th Cir. 1999) (Thomas, J., dissenting).
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D. Definite Proof in this Case
Having held that definite proof describes the quality of the evidence that a claimant
must produce to satisfy his or her burden of production, we now address whether
Respondent met that burden. The record supports that he did.
Respondent submitted a January 2020 medical opinion by Dr. Robert Macht. The
opinion details Respondent’s medical history (his past hernia injuries and surgery). Dr.
Macht indicated that he examined Respondent and discussed the September 2019 accident
at issue. He specifically stated that Respondent “had no recurrence of his [May 2016]
umbilical hernia” at the time of reevaluation in Dr. Macht’s office in September 2016,
indicating that Dr. Macht was familiar with Respondent and Respondent’s medical history.
Based upon his review of Respondent’s medical records, it was Dr. Macht’s opinion, to a
reasonable degree of medical certainty, that Respondent “developed a new onset of an
umbilical hernia” in September 2019.
We fail to see how this thorough medical opinion does not satisfy the requirement
for definite proof. It speaks in terms of a reasonable degree of medical certainty and is of
sufficient quality for the Commission to determine that Respondent’s hernia “did not exist
before the accidental personal injury or strain.” L&E § 9-504(a). That is all that was
required of Respondent to satisfy his burden of production.11 Petitioners chose not to put
11
While the Court of Special Appeals likewise held that Respondent submitted
definite proof that constituted a preponderance of the evidence, Strothers, 253 Md. App. at
723, it continued its analysis of the third issue: the meaning of “immediate” in L&E § 9-
504(a)(1)(ii). This was, however, unnecessary. True enough, the phrase “definite proof”
applies to all of L&E § 9-504(a)(1)—both (i) and (ii). Nevertheless, section (a)(1) is
written in the disjunctive, so Respondent needed to prove that he satisfied the criteria in
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into the record any of their own expert medical evidence; instead, they relied on what they
believed were shortcomings in Dr. Macht’s opinion. See supra n.7. Given that
Respondent’s evidence essentially was uncontroverted,12 we cannot say that the
Commission misconstrued the law when it found that Respondent met both his burdens of
production and persuasion.
IV. CONCLUSION
To reiterate, we hold that “definite proof,” as that phrase is used in L&E § 9-
504(a)(1), applies to the quality of evidence that a claimant must submit as part of his or
her burden of production under a workers’ compensation claim for an accidental hernia. If
the claimant fails to produce definite proof, then the Commission must deny the claim. If
the claimant produces definite proof, then an employer and/or insurer may put forth any of
its own evidence to counter the claimant’s. Throughout the entire proceeding, the claimant
always bears the burden of persuading the Commission that the entirety of the evidence
weighs in his or her favor by a preponderance. We, therefore, disagree with Petitioners
either § 9-504(a)(1)(i) or (ii)—not both. See Plank v. Cherneski, 469 Md. 548, 620 (2020)
(“Maryland courts generally interpret ‘or’ in the disjunctive sense when they construe
statutes.” (citing SVF Riva Annapolis LLC v. Gilroy, 459 Md. 632, 642 (2018))).
Respondent satisfied the criteria in section (a)(1)(i). Because we think it prudent to decide
this case—like any other—as narrowly as possible while still fully resolving the case
presented, there is no need to continue the analysis. We, thus, need not decide today what
constitutes “immediate” under L&E § 9-504(a)(1)(ii).
12
As previously noted, the HCGH medical records indicated, at best, that
Respondent’s September 2019 hernia “appeared slightly increased in size when compared”
to the May 2016 imaging. (Emphasis added). That is a far cry from a medical expert
opining to a reasonable degree of medical certainty that the September 2019 hernia in fact
is an aggravation of the May 2016 hernia.
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that definite proof imposes upon a claimant a burden of persuasion at the level of clear and
convincing.
In this case, Dr. Macht’s January 2020 medical opinion satisfied the standard of
definite proof. Because Petitioners chose not to submit any of their own medical evidence,
the Commission did not misconstrue the law when it found that Respondent met both his
burdens of production and persuasion. Thus, we affirm the judgment below.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED.
COSTS TO BE PAID BY
PETITIONERS.
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