Law Updates

Maryland Court of Special Appeals Declines to Interpret “Definite Proof” as a Higher Standard of Proof for a Hernia Related Workers Compensation Action

(July 14, 2022) Benito Felice, Summer Associate.

In February 2022, the Maryland Court of Special Appeals reviewed the term “definite proof” and the “immediacy” element in § 9-504 of the Labor and Employment Article and, whether the evidence presented to the Maryland Workers’ Compensation Commission (the “Commission”) met that standard. In this case, UPS, et. al. v. Strothers, 235 Md. App. 708, the court affirmed that application of the preponderance of the evidence standard by the Commission was appropriate, as “definite proof” applied to the quality of evidence provided, affirmed that the evidence presented by Appellee satisfied this standard, and that the operation Appellee underwent was “immediate” for the purposes of § 9-504.

Appellee David Strothers (“Strothers”) was employed with the United Parcel Service (“UPS”). On September 19, 2019, he alleged an injury (hernia) while using a power jack. During Strothers’s hospital visit, he reported a history of hernias and accompanying surgeries to treat them. He was diagnosed with another hernia (a right-side paraumbilical hernia) and was recommended to follow up with his primary care physician and/or general surgeon within seven (7) days but surgery for the hernia was neither performed nor recommended. A CT scan revealed a 3.3 cm paraumbilical hernia, which appeared slightly increased in size when compared to a prior 2016 study. Strothers was initially scheduled for surgery on September 30, 2019, but the procedure was postponed. He eventually underwent surgery on November 14, 2019, fifty-nine (59) days after his diagnosis. Throughout this time, UPS contested the accidental injury and the causal relationship of the hernia. The Commission held a hearing on the matter and Strothers presented a medical expert who stated that the hernia was “more likely than not caused by the injury.” The Commission found for Strothers, in that the claim was compensable, and the Circuit Court for Howard County reviewed the matter, on the record, arriving at the same conclusion.

On appeal, UPS argued that the Commission erred in applying the preponderance of the evidence standard to Strothers’s claim, and in finding the surgery “immediate”. § 9-504 states, in pertinent part:

“[A]n employer shall provide compensation…for a hernia caused by an accidental personal injury or by strain arising out of and in the course of employment if…  [the] employee provides definite proof that…(1) the hernia did not exist before the accidental personal injury or strain occurred; or (2) 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…”

UPS argued the term “definite proof” requires application of the clear and convincing standard because hernia-related injuries require a heightened assurance with respect to causation (i.e., that the hernia was, in fact, caused by the injury) and the legislature made this known by using the distinct term “definite proof”. UPS pointed out that if the legislature intended for “definite proof” to mean the preponderance of the evidence standard, then the legislature would have used that well-known language in the statute. Strothers argued, in opposition, that the preponderance of the evidence standard was what the legislature intended and that the commission correctly construed the statute.

The Maryland Court of Special Appeals noted that the term “definite proof” is unique to hernia related injuries under the Workers’ Compensation Act, however, no explanation of the term is provided in the statute. While the uniqueness of the terminology “definite proof” was thoroughly addressed during oral arguments by UPS, the Court was not convinced. The Court held that if the legislature wanted a heightened standard of proof for hernia compensation, they would have done so expressly and, moreover, that the term “definite proof” refers to the quality of the evidence and does not constitute a standard of proof as UPS contended.

In arriving at this conclusion, the court heavily relied on the legislative history of § 9-504 and how it has been applied by Maryland courts. To that end, Maryland courts have generally not construed “definite proof” to necessitate a stricter standard of proof. The Court of Special Appeals explained that “definite proof” was mentioned in Bethlehem Steel Co. v. Ziegenfuss, 187 Md. 283, when the Court of Appeals determined that unsupported testimony of non-medical experts on medical matters does not meet the requirement of definite proof. In relying on this opinion, the Court of Special Appeals expressed that “absent from the [Maryland Court of Appeals] holding was any language indicating that definite proof was a standard of proof or a term that referenced the clear and convincing standard.” Additionally, the court noted that in Greer v. Montgomery County, Maryland, 246 Md. App. 245, Clifford Sobin’s treatise on Maryland Workers’ Compensation Law was referenced to shed light on hernia-related claims. This treatise described a stricter requirement for hernia related cases but did not characterize “definite proof” as a higher standard of proof. Finally, the Court pointed to sister jurisdictions, like the Fifth Circuit Court of Appeals, to compare similar statutes and the courts’ accompanying interpretation of those hernia-related statutes; ultimately arriving at the same conclusion.

Once the court established that the standard was preponderance of evidence, they held that the evidence presented by Strothers did, in fact, satisfy the standard and the Commissions’ decision was proper under the statute.

Next, the court held that Strothers did satisfy the “immediacy” requirement under § 9-504 because Strothers immediately sought medical attention after his alleged work injury. The court was persuaded that because Strothers had trouble finding a surgeon, difficulty with insurance coverage, and conflicts with the surgeon’s availability, the surgery could not have been performed “immediately”. The court applied the use of immediate to the need for an operation, and not to the operation itself. Moreover, the court opined that the medical records supported that the surgery was needed “urgently.” The court refused to substitute the word “immediate” with “emergency” and, thus, held that the surgery being performed fifty-nine (59) days later did not diminish its urgent or immediate nature.

This case has been granted certiorari by the Maryland Court of Appeals, UPS, et. al. v. Strothers, __ Md. __, No. 9, Sept. Term, 2022, and oral arguments are scheduled for September 2022. Semmes, Bowen & Semmes will represent UPS in the upcoming proceedings.

Please direct any questions to Erinn Grzech at