In re: City of Hagerstown
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Opinion
In the Matter of City of Hagerstown, et al., No. 2114, Sept. Term 2023. Opinion by Arthur, J.
WORKERS’ COMPENSATION—DE NOVO JUDICIAL REVIEW
At a de novo trial for judicial review of a decision by the Workers’ Compensation Commission, the jury reviews the “decision” of the Commission, rather than the opinion or findings of the Commission. A “decision” of the Commission is an operative order with the effect of granting or denying some benefit under the Act. If the jury concludes that the decision was correct, the jury should uphold the decision even if the jury disagrees with factual findings made by the Commission. Questions of fact submitted to the jury should, to the extent practicable, be confined to ultimate issues, such as whether the employee suffered an accidental injury arising out of and in the course of employment and whether the employee suffered a disability as a result of the accidental injury.
In this case, an employer petitioned for judicial review of a decision awarding disability benefits. While the action was pending, the employee’s physician provided a diagnosis that was different from the condition mentioned in the Commission’s opinion. At trial, the employer contended that the jury should be required to decide whether the employee had the specific medical condition mentioned in the Commission’s opinion. The employer also contended that it was entitled to judgment in its favor because there was no evidence that the employee suffered from the specific condition mentioned in the Commission’s opinion. The trial court correctly rejected these arguments. The trial court correctly determined that the proper question for the jury to decide was whether the employee had sustained an accidental injury arising out of and in the course of his employment, not whether the Commission had identified the correct medical diagnosis.
WORKERS’ COMPENSATION—OCCUPATIONAL DISEASE
In an action for judicial review of a decision of the Workers’ Compensation Commission which awards benefits based solely on an accidental injury, where the employee makes no claim based on an occupational disease, the trial court is not required to provide jury instructions about the requirements for proving an occupational disease.
DISCOVERY—SANCTIONS FOR DISCOVERY VIOLATION
At a de novo trial for review of a workers’ compensation award, the trial court did not abuse its discretion by permitting the employee to introduce certain photographs that he had previously obtained from the employer. The record established that the employer was aware of the existence of the photographs, as well as the content of the photographs. The record further indicated that the employer had adequate notice that the employee possessed the photographs. Although the employee failed to mention the photographs in his written discovery responses, any resulting prejudice to the employer was minimal. Circuit Court for Washington County Case No. C-21-CV-23-000062
REPORTED
IN THE APPELLATE COURT
OF MARYLAND
No. 2114
September Term, 2023 ______________________________________
IN THE MATTER OF CITY OF HAGERSTOWN, ET AL.
______________________________________
Arthur, Tang, Harrell, Glenn T. (Senior Judge, Specially Assigned),
JJ. ______________________________________
Opinion by Arthur, J. ______________________________________
Filed: May 30, 2025
Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2025.05.30 15:07:03 -04'00' Gregory Hilton, Clerk This appeal concerns a decision by the Workers’ Compensation Commission
awarding temporary total disability benefits. The employee claimed that he developed
respiratory problems after he encountered mold while performing building repairs. The
Commission determined that the employee sustained an accidental injury arising out of
and in the course of his employment and ordered the employer to pay temporary total
disability benefits. Throughout the opinion explaining its decision, the Commission
described the employee’s respiratory condition as an “airways disease” and, at one point,
as “pulmonary airways disease.”
The employer petitioned for judicial review in the Circuit Court for Washington
County. While the judicial review action was pending, the employee underwent a lung
biopsy to investigate his condition. Based on the results of the biopsy, his treating
physician provided a new diagnosis: hypersensitivity pneumonitis. The physician
continued to conclude that the disease resulted from exposure to mold.
At a de novo jury trial, all medical experts agreed that the primary diagnosis for
the employee’s condition is hypersensitivity pneumonitis, which, they explained, is
distinct from a diagnosis of “pulmonary airways disease.” The employer argued that it
was entitled to judgment in its favor because there was no evidence that the employee
suffered from the “pulmonary airways disease” mentioned in the Commission’s decision.
The court rejected the employer’s argument. The court concluded that the issue for the
jury to decide was whether the employee sustained a compensable injury, not whether the
Commission had identified the correct medical diagnosis.
Based on the evidence presented at trial, the jury found that the employee sustained an accidental injury arising out of and in the course of the employment and that
he was temporarily and totally disabled as a result of his injury. The employer has
appealed, contending that it is entitled to judgment in its favor or a new trial. Because we
reject the employer’s contentions, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2018, Paul Johnson began working for the City of Hagerstown as a
building maintenance specialist. For many years before his employment with the City,
Mr. Johnson had an extensive history of breathing or respiratory complaints, including
sinus congestion and seasonal allergies. According to Mr. Johnson, these complaints
were minor complaints, which generally did not prevent him from performing his job
duties.
Around the fall of 2021, Mr. Johnson’s supervisors assigned him to perform
renovations at an office building known as “The Barn” in Hagerstown. The project
required Mr. Johnson to repair and replace water-damaged walls on the basement level of
the building. After removing desks and printers from some offices, Mr. Johnson
observed visible mold on the walls.
In late 2021 or early 2022, Mr. Johnson encountered a large area of black mold
while repairing walls in a room known as the map room. According to Mr. Johnson, the
room had a “really nasty” odor, resembling the smell of a “dead body[.]” After his
exposure to the odor, Mr. Johnson experienced fatigue, dizziness, coughing, wheezing,
and difficulty breathing. When Mr. Johnson sought treatment for his respiratory
symptoms, his physicians advised him not to return to work. Mr. Johnson stopped
2 working in early February 2022 and did not return. Mr. Johnson was 52 years old at that
time.
Around the same time that Mr. Johnson stopped working, a contractor inspected
the Barn building at the request of the City. The contractor took photographs of areas of
suspected mold in the basement level. Sampling tests confirmed the presence of mold,
including mold on the walls of the map room.
On March 23, 2022, Mr. Johnson filed a claim with the Workers’ Compensation
Commission. Mr. Johnson claimed that he sustained an accidental injury on January 27,
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In the Matter of City of Hagerstown, et al., No. 2114, Sept. Term 2023. Opinion by Arthur, J.
WORKERS’ COMPENSATION—DE NOVO JUDICIAL REVIEW
At a de novo trial for judicial review of a decision by the Workers’ Compensation Commission, the jury reviews the “decision” of the Commission, rather than the opinion or findings of the Commission. A “decision” of the Commission is an operative order with the effect of granting or denying some benefit under the Act. If the jury concludes that the decision was correct, the jury should uphold the decision even if the jury disagrees with factual findings made by the Commission. Questions of fact submitted to the jury should, to the extent practicable, be confined to ultimate issues, such as whether the employee suffered an accidental injury arising out of and in the course of employment and whether the employee suffered a disability as a result of the accidental injury.
In this case, an employer petitioned for judicial review of a decision awarding disability benefits. While the action was pending, the employee’s physician provided a diagnosis that was different from the condition mentioned in the Commission’s opinion. At trial, the employer contended that the jury should be required to decide whether the employee had the specific medical condition mentioned in the Commission’s opinion. The employer also contended that it was entitled to judgment in its favor because there was no evidence that the employee suffered from the specific condition mentioned in the Commission’s opinion. The trial court correctly rejected these arguments. The trial court correctly determined that the proper question for the jury to decide was whether the employee had sustained an accidental injury arising out of and in the course of his employment, not whether the Commission had identified the correct medical diagnosis.
WORKERS’ COMPENSATION—OCCUPATIONAL DISEASE
In an action for judicial review of a decision of the Workers’ Compensation Commission which awards benefits based solely on an accidental injury, where the employee makes no claim based on an occupational disease, the trial court is not required to provide jury instructions about the requirements for proving an occupational disease.
DISCOVERY—SANCTIONS FOR DISCOVERY VIOLATION
At a de novo trial for review of a workers’ compensation award, the trial court did not abuse its discretion by permitting the employee to introduce certain photographs that he had previously obtained from the employer. The record established that the employer was aware of the existence of the photographs, as well as the content of the photographs. The record further indicated that the employer had adequate notice that the employee possessed the photographs. Although the employee failed to mention the photographs in his written discovery responses, any resulting prejudice to the employer was minimal. Circuit Court for Washington County Case No. C-21-CV-23-000062
REPORTED
IN THE APPELLATE COURT
OF MARYLAND
No. 2114
September Term, 2023 ______________________________________
IN THE MATTER OF CITY OF HAGERSTOWN, ET AL.
______________________________________
Arthur, Tang, Harrell, Glenn T. (Senior Judge, Specially Assigned),
JJ. ______________________________________
Opinion by Arthur, J. ______________________________________
Filed: May 30, 2025
Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2025.05.30 15:07:03 -04'00' Gregory Hilton, Clerk This appeal concerns a decision by the Workers’ Compensation Commission
awarding temporary total disability benefits. The employee claimed that he developed
respiratory problems after he encountered mold while performing building repairs. The
Commission determined that the employee sustained an accidental injury arising out of
and in the course of his employment and ordered the employer to pay temporary total
disability benefits. Throughout the opinion explaining its decision, the Commission
described the employee’s respiratory condition as an “airways disease” and, at one point,
as “pulmonary airways disease.”
The employer petitioned for judicial review in the Circuit Court for Washington
County. While the judicial review action was pending, the employee underwent a lung
biopsy to investigate his condition. Based on the results of the biopsy, his treating
physician provided a new diagnosis: hypersensitivity pneumonitis. The physician
continued to conclude that the disease resulted from exposure to mold.
At a de novo jury trial, all medical experts agreed that the primary diagnosis for
the employee’s condition is hypersensitivity pneumonitis, which, they explained, is
distinct from a diagnosis of “pulmonary airways disease.” The employer argued that it
was entitled to judgment in its favor because there was no evidence that the employee
suffered from the “pulmonary airways disease” mentioned in the Commission’s decision.
The court rejected the employer’s argument. The court concluded that the issue for the
jury to decide was whether the employee sustained a compensable injury, not whether the
Commission had identified the correct medical diagnosis.
Based on the evidence presented at trial, the jury found that the employee sustained an accidental injury arising out of and in the course of the employment and that
he was temporarily and totally disabled as a result of his injury. The employer has
appealed, contending that it is entitled to judgment in its favor or a new trial. Because we
reject the employer’s contentions, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2018, Paul Johnson began working for the City of Hagerstown as a
building maintenance specialist. For many years before his employment with the City,
Mr. Johnson had an extensive history of breathing or respiratory complaints, including
sinus congestion and seasonal allergies. According to Mr. Johnson, these complaints
were minor complaints, which generally did not prevent him from performing his job
duties.
Around the fall of 2021, Mr. Johnson’s supervisors assigned him to perform
renovations at an office building known as “The Barn” in Hagerstown. The project
required Mr. Johnson to repair and replace water-damaged walls on the basement level of
the building. After removing desks and printers from some offices, Mr. Johnson
observed visible mold on the walls.
In late 2021 or early 2022, Mr. Johnson encountered a large area of black mold
while repairing walls in a room known as the map room. According to Mr. Johnson, the
room had a “really nasty” odor, resembling the smell of a “dead body[.]” After his
exposure to the odor, Mr. Johnson experienced fatigue, dizziness, coughing, wheezing,
and difficulty breathing. When Mr. Johnson sought treatment for his respiratory
symptoms, his physicians advised him not to return to work. Mr. Johnson stopped
2 working in early February 2022 and did not return. Mr. Johnson was 52 years old at that
time.
Around the same time that Mr. Johnson stopped working, a contractor inspected
the Barn building at the request of the City. The contractor took photographs of areas of
suspected mold in the basement level. Sampling tests confirmed the presence of mold,
including mold on the walls of the map room.
On March 23, 2022, Mr. Johnson filed a claim with the Workers’ Compensation
Commission. Mr. Johnson claimed that he sustained an accidental injury on January 27,
2022.1 Mr. Johnson described the injury as “asthma” and “respiratory issues.” Mr.
Johnson wrote that he “develope[d] breathing problems” after he encountered “large
colonies of different types of mold” while performing his job duties.
In response to the claim, the City of Hagerstown, as a self-insured employer,
raised two issues with the Commission. The City contested whether Mr. Johnson
sustained an accidental injury or occupational disease arising out of and in the course of
his employment. The City further contested whether Mr. Johnson’s disability resulted
from an accidental injury or occupational disease arising out of and in the course of his
employment.
Beginning in May 2022, Mr. Johnson began receiving treatment from Stella Hines,
M.D., an occupational and environmental pulmonologist. After the initial examination,
The date of January 27, 2022, appears to be an approximation of Mr. Johnson’s 1
last mold exposure. Under the Workers’ Compensation Act, an injury need not occur “suddenly, [or] at an identifiable point in time, to be considered accidental.” Luby Chevrolet, Inc. v. Gerst, 112 Md. App. 177, 190 (1996).
3 Dr. Hines concluded that the most likely explanations for Mr. Johnson’s symptoms were
work-related asthma and reactive airways disease.
In advance of a Commission hearing, Mr. Johnson underwent an examination with
John Parkerson, M.D., a specialist in occupational medicine. Dr. Parkerson noted that
Mr. Johnson “d[id] not have a firm diagnosis” at that time. Dr. Parkerson concluded that
mold exposure had exacerbated Mr. Johnson’s preexisting respiratory problems and that
his respiratory condition was “partially related” to the mold exposure.
At a hearing on October 4, 2022, the Commission considered evidence, including
reports from Dr. Hines and Dr. Parkerson. Afterwards, the Commission issued a decision
awarding temporary total disability benefits to Mr. Johnson.
Throughout the opinion explaining its decision, the Commission described Mr.
Johnson’s condition as an “airways disease.” The Commission concluded that this
condition did not fit the definition of an occupational disease. The Commission
determined that Mr. Johnson sustained an accidental injury arising out of and in the
course of employment on January 27, 2022. The Commission also determined that Mr.
Johnson was temporarily totally disabled since the day following his injury and ordered
the City to pay temporary total disability benefits continuously since that date. The
Commission further ordered the City to authorize continued treatment with Dr. Hines.
The City moved for rehearing, asking the Commission to reconsider its
determination that Mr. Johnson sustained an accidental injury. The Commission granted
the request for rehearing. After a hearing on January 19, 2023, the Commission issued a
new award of compensation, superseding the prior award. The Commission again
4 ordered the City to pay temporary total disability benefits accruing continuously since the
day after the claimed injury.
The opinion explaining the Commission’s new decision was substantially similar
to the opinion explaining the earlier decision. Throughout the opinion, the Commission
described Mr. Johnson’s respiratory condition as an “airways disease” caused by his
exposure to mold. The Commission found that Mr. Johnson did not sustain an
occupational disease within the meaning of the Workers’ Compensation Act. The
Commission reasoned that “[t]he nature of [Mr. Johnson’s] employment – meaning his
occupation – does not generally expose workers in that occupation to the hazards of the
airways disease which developed.” The Commission stated that “[Mr. Johnson’s]
airways disease was caused by a particular condition which developed at a particular job
site (mold growth at ‘The Barn’).”
The Commission “f[ound] that [Mr. Johnson] did sustain an accidental injury
arising out of and in the course of employment on or about January 27, 2022.” The
Commission “also f[ound] that [Mr. Johnson’s] pulmonary airways disease was caused,
in part, by exposure to mold which arose out of and in the course of [his] employment
with [the City].” The Commission stated: “The exposure to mold led to an exacerbation
or triggering of an underlying and pre-existing airways disease.” The Commission
added: “The exposure which produced the injury occurred over a period of time (ending
on approximately January 27, 2022) but still constitutes an accidental personal injury.”
The Commission ordered the City to pay temporary total disability benefits accruing
continuously since January 28, 2022. Finally, the Commission ordered the City to
5 authorize continued treatment with Dr. Hines.
The City petitioned for judicial review in the Circuit Court for Washington
County, challenging the award of temporary total disability benefits. The City requested
a jury trial on the issues raised in its petition. Along with his response to the petition, Mr.
Johnson also requested a jury trial on all issues.
Throughout 2022 and early 2023, Dr. Hines remained uncertain as to the exact
diagnosis for Mr. Johnson’s condition, despite pulmonary function tests, a lymph node
biopsy, imaging studies, and blood work. Dr. Hines considered a diagnosis of
hypersensitivity pneumonitis, but she concluded that the diagnosis was relatively unlikely
based on the imaging results. Generally, Dr. Hines continued to conclude that work-
related asthma was the most likely explanation for Mr. Johnson’s continuing symptoms.
In March 2023, Mr. Johnson underwent a surgical lung biopsy, an invasive
procedure in which a surgeon removed tissue from his lungs. Based on the results of that
biopsy, Dr. Hines concluded that the primary diagnosis for Mr. Johnson’s condition was
hypersensitivity pneumonitis.
In October 2023, the circuit court conducted a de novo jury trial concerning the
City’s petition for judicial review of the Commission’s decision awarding temporary total
disability benefits.
At trial, the City presented evidence concerning Mr. Johnson’s medical history
prior to the claimed injury. In his testimony, Mr. Johnson admitted that he formerly
smoked cigarettes. Mr. Johnson estimated that he smoked between half a pack to two
packs of cigarettes per day for about 25 years, from 1989 to 2014. Since the late 1990s
6 and continuing through the time of his employment with the City, Mr. Johnson had an
extensive history of breathing or respiratory complaints, including seasonal allergies,
sinus congestion, chest congestion, shortness of breath, coughing, and wheezing. Mr.
Johnson also had surgery to repair a deviated nasal septum in 2016.
The City presented testimony from Hung Cheung, M.D., who testified as an expert
in the field of occupational and environmental medicine. Dr. Cheung had reviewed Mr.
Johnson’s medical records, including the series of reports by Dr. Hines. Dr. Cheung
agreed with Dr. Hines that there is a “fairly high probability” that Mr. Johnson has
Dr. Cheung nevertheless opined that Mr. Johnson’s respiratory symptoms were not
caused by the alleged mold exposure at the Barn building. As the basis for that
conclusion, Dr. Cheung relied on Mr. Johnson’s history of respiratory problems predating
the alleged mold exposure. Dr. Cheung also relied on the results of environmental mold
sampling conducted in February 2022 which, according to Dr. Cheung, did not indicate
“mold amplification” in the areas tested. Dr. Cheung further opined that Mr. Johnson
was capable of working in a “modified capacity,” performing work with a “medium
physical demand level[.]”
In his testimony, Dr. Cheung stated that hypersensitivity pneumonitis typically
results from “initial overwhelming exposures to organic matters[.]” Dr. Cheung
described hypersensitivity pneumonitis as a condition characterized by “inflammation in
the . . . interstitium or the connective tissue within . . . the lungs[,]” which “may,
depending on the amount of inflammation or subsequent scarring, cause oxygen to not
7 flow into the body.”
During direct examination, the City asked Dr. Cheung to explain the difference
between hypersensitivity pneumonitis and “pulmonary airways disease[,]” the condition
mentioned in the Commission’s decision. Dr. Cheung stated: “airways disease is really
conditions related to the airways which results in conditions or diagnosis such as asthma,
emphysema, bronchitis, and things as such.” Dr. Cheung stated that people with an
airways disease “have a difficulty in moving air[,]” but, for people with
“[hypersensitivity pneumonitis] or interstitial lung disease, the problem is not moving
air.” Dr. Cheung continued: “The air may come in, and you may have all of the oxygen
that you can, but the oxygen is having difficulty crossing the connective tissue into the
bloodstream[.]” Dr. Cheung opined, based on the results of Mr. Johnson’s lung biopsy,
that he “does not have airways disease.” Dr. Cheung concluded that “the biopsy really
indicates a diagnosis more consistent with hypersensitivity pneumonitis which is an
interstitial lung disease, not airways disease.”
The City presented testimony from Dr. John Parkerson, who testified as an expert
in the field of occupational and environmental medicine. Dr. Parkerson explained that,
when he initially evaluated Mr. Johnson in September 2022, Mr. Johnson did not have
any “firm diagnosis” for his condition. Since that time, Dr. Parkerson had reviewed
updated medical records, including reports made by Dr. Hines and Dr. Cheung after the
lung biopsy. Dr. Parkerson agreed with the diagnosis of hypersensitivity pneumonitis.
Dr. Parkerson opined that Mr. Johnson’s condition was not caused by mold
exposure at the Barn building. As the basis for that conclusion, Dr. Parkerson relied on
8 Mr. Johnson’s preexisting respiratory complaints, tests measuring his reactivity to molds,
and environmental sampling of the mold at his workplace. Dr. Parkerson further opined
that Mr. Johnson’s respiratory condition would not preclude him from working “full-time
. . . in some capacity,” performing either “sedentary” or “medium duty” work.
In his testimony, Dr. Parkerson explained that hypersensitivity pneumonitis and
“pulmonary airways disease” are “distinct” conditions. Dr. Parkerson stated that “the
symptoms may overlap, but medically the tests show different results and the treatment is
different.” Dr. Parkerson explained: “Pulmonary airways disease is what people think of
as asthma, COPD, emphysema. And [hypersensitivity pneumonitis] is what falls in the
realm of what we call restrictive diseases, not obstructive diseases.” Dr. Parkerson
opined that Mr. Johnson’s medical records “do not support” a diagnosis of pulmonary
airways disease.
At the close of the City’s case, counsel for Mr. Johnson moved to remand the
proceedings to the Workers’ Compensation Commission. Counsel argued that the court
should direct the Commission to consider the new medical evidence generated after the
Commission hearing in January 2023. He argued that the Commission should decide, in
the first instance, whether Mr. Johnson has hypersensitivity pneumonitis as a result of his
mold exposure.
The City opposed the motion for remand. The City argued that, under the
circumstances, the only way for Mr. Johnson to pursue his claim for temporary total
disability benefits was to “dismiss [his] claim completely and refile a brand-new
claim[.]” The City further asserted that, at the time of trial, Mr. Johnson still had “a
9 couple of months” left under the relevant statute of limitations in which to “file a new
claim for [hypersensitivity pneumonitis].”2 The court reserved its ruling on the motion
for remand until the close of all evidence.
In his case in chief, Mr. Johnson presented testimony from Dr. Stella Hines, who
testified as an expert “in the field of pulmonary and occupational exposure cases.” Dr.
Hines explained that she eventually arrived at the diagnosis of hypersensitivity
pneumonitis after the surgical lung biopsy in March 2023. Dr. Hines described
hypersensitivity pneumonitis as “a chronic lung condition that can result from being
around and breathing in different . . . antigens[,]” which may “cause inflammation in the
lungs.” Dr. Hines explained that “molds are . . . one of the commonly known causes of
hypersensitivity pneumonitis.” Dr. Hines testified that chronic hypersensitivity
pneumonitis can lead to an interstitial lung disease, in which inflammation can make it
“more difficult” for the lungs to “inflate and deflate” or “make it harder for [patients] to
exchange oxygen into their lungs from what they’re taking in from the air.” Dr. Hines
mentioned that “patients can also develop wheezing,” usually as the result of “some
narrowing of the really small airways that result in some air trapping as a result of the
inflammation.”
Dr. Hines concluded that there was no indication in Mr. Johnson’s medical history
2 Generally, the Commission does not require employees to provide a specific medical diagnosis when filing or amending a claim. Rather, the claim must include information about the “date of the accident or occupational disease[,]” the “member of the body that was injured[,]” and a “description of how the accidental injury or occupational disease occurred[.]” Code of Maryland Regulations (COMAR) 14.09.02.02(A)(2).
10 that the “degree of symptoms” for which he sought treatment in 2022 had existed “prior
to that time.” Dr. Hines opined, to a reasonable degree of medical certainty, that Mr.
Johnson developed hypersensitivity pneumonitis as a result of his exposure to mold at his
work environment. As the basis for that conclusion, Dr. Hines relied on the timing of his
symptoms, the presence of mold in inspections of his work environment, and the absence
of another source that might have produced his condition.
Dr. Hines opined that Mr. Johnson’s respiratory symptoms, including fatigue and
coughing spasms, limit his ability to perform heavy or prolonged physical labor and make
it unsafe for him to work in a “safety-sensitive” job. Dr. Hines testified that Mr. Johnson
had not yet reached maximum medical improvement, as there was still a chance that his
condition might improve over time with treatment. Dr. Hines nevertheless opined that it
was likely that Mr. Johnson would continue to have “a chronic lung deficit” resulting
from his disease.
During cross-examination, Dr. Hines acknowledged that she remained uncertain as
to Mr. Johnson’s exact diagnosis from the time of the initial examination in May 2022
through the time of the lung biopsy in March 2023. Dr. Hines stated that, throughout that
time, she believed that work-related asthma was the most likely diagnosis. Dr. Hines
agreed that the diagnosis of hypersensitivity pneumonitis is “distinct” and “different”
from the diagnosis of work-related asthma. Dr. Hines also agreed that hypersensitivity
pneumonitis is “distinct from . . . something called pulmonary airways disease.” Dr.
Hines mentioned, however, that a person “can have airways disease as a part of
hypersensitivity pneumonitis.”
11 During redirect examination, counsel for Mr. Johnson asked Dr. Hines whether
hypersensitivity pneumonitis is a “subcategory” of an “overall broad diagnosis” of
“restrictive airways disease.” Dr. Hines responded: “Yes. I mean, I think I’d say it more
so people have restrictive airways disease as a manifestation of their hypersensitivity
pneumonitis.” Counsel further asked: “So, . . . hypersensitivity is a restrictive airway
disease case, but just because you have restrictive airways disease, doesn’t mean you
have [hypersensitivity pneumonitis], correct?” Dr. Hines answered: “Correct.” Finally,
counsel asked Dr. Hines for her opinion “as to whether or not the restrictive airways
disease [was] a derivative or exacerbated by his exposure to irritants at work during the
time frame that were talking about[.]” Dr. Hines answered: “I think it’s related.”
At the close of all evidence, the City moved for judgment in its favor. The City
argued that the jury should be required to decide the “very specific” question of whether
Mr. Johnson had “an accidental injury of pulmonary airways disease[.]” The City argued
that none of the evidence supported a finding that Mr. Johnson had “pulmonary airways
disease[,]” because all medical experts agreed that he has “a completely different
condition called . . . hypersensitivity pneumonitis.” The City asserted that the medical
experts, including Dr. Hines, agreed that the diagnosis of hypersensitivity pneumonitis
was “distinct” from the diagnosis of pulmonary airways disease.
The court expressed skepticism about the City’s interpretation of the
Commission’s findings. The court noted that, in the opinion explaining its decision, the
Commission mentioned an “airways disease” five times but used the term “pulmonary
airways disease” only once. The court observed that the commissioner, who was “a
12 layman interpreting the evidence in front of him[,]” may have used the term “airways
disease” as “a generalized term” for Mr. Johnson’s respiratory condition, without making
a finding about one particular medical diagnosis to the exclusion of others.
In response to the City’s motion, counsel for Mr. Johnson renewed his motion to
remand the proceedings to the Commission to allow the Commission to consider the new
medical evidence. In the alternative, counsel argued that the court should deny the City’s
motion for judgment because Dr. Hines had testified that hypersensitivity pneumonitis is
“a subcategory of restrictive airways disease.”
The court denied Mr. Johnson’s motion to remand the case to the Commission.
The court concluded that section 9-745(d) of the Labor and Employment Article, the
statute that authorizes a party to submit to a jury any question of fact involved in a
decision of the Commission, does not authorize the court to remand the case to the
Commission.
The court denied the City’s motion for judgment. The court reasoned that, in the
judicial review action, the jury’s role was to review the “decision” of the Commission,
not necessarily the factual findings supporting that decision. The court reasoned: “The
decision is not a decision that the claimant suffered necessarily from pulmonary airways
disease or an airways disease[.]” The court reasoned that the decisions under review in a
de novo trial are decisions on issues such as “[d]id the employee sustain an accidental
personal injury arising out of and in the course of employment” or “is the disability of the
employee the result of an accidental personal injury arising out of and in the course of
employment[.]”
13 During discussions about the verdict sheet, the City asked the court to submit the
question of whether Mr. Johnson sustained an “accidental injury of pulmonary airways
disease[.]” The City argued that it would be “prejudicial error” for the court not to
submit “that specific question” to the jury. Consistent with its ruling on the motion for
judgment, the court denied the City’s request. The court ruled that the proper question
for the jury to decide was whether Mr. Johnson sustained an accidental personal injury
arising out of and in the course of employment on January 27, 2022.3
The jury delivered a verdict in favor of Mr. Johnson on two questions listed on the
verdict sheet. The first question was: “Did the claimant sustain an accidental injury,
personal injury [sic] arising out of and in the course of employment on January 27th,
2022?” The jury answered yes to this question.
The second question was: “Was the claimant temporarily totally disabled from
January 28th, 2022 to the present? Or was that temporary total disability, if any, for a
different period of time between January 28th, 2022 and the present? Or was the
claimant not temporarily disabled?” In response, the jury found that Mr. Johnson “was
temporarily totally disabled from January 28th, 2022 to the present.”
Ten days after the jury rendered its verdict, the City filed a motion for judgment
notwithstanding the verdict or, in the alternative, for a new trial. In support of its motion,
3 Despite the circuit court’s rulings about the proper question for the jury, the City devoted most of its closing argument to arguing that the actual question for the jury to decide was whether Mr. Johnson had pulmonary airways disease. Without objection, counsel for the City repeatedly told the jurors that they should decide whether Mr. Johnson had pulmonary airways disease and asserted that, if their answer to that question was no, they should find no compensable injury.
14 the City argued that the evidence at trial was insufficient to support a finding that Mr.
Johnson had pulmonary airways disease. The City also argued that the verdict sheet was
erroneous because it did not ask whether Mr. Johnson had pulmonary airways disease.
On December 15, 2023, the circuit court denied the City’s post-judgment motion.
One week later, the City filed a notice of appeal. Subsequently, the circuit court entered
judgment incorporating the jury verdict and affirming the decision of the Commission.4
DISCUSSION
In this appeal, the City of Hagerstown5 asks this Court to reverse the judgment
affirming the decision of the Workers’ Compensation Commission and to remand the
case to the circuit court for a new trial. The City’s appellate brief presents the following
questions:
1. Did the trial court err by allowing the jury to decide a complicated medical question without evidence legally sufficient to support the decision of the Commission?
2. Did the trial court err in [s]ubmitting the Verdict Sheet to the Jury that withheld a fundamental portion of the decision of the Commission which has the effect of granting or denying benefits, specifically if the disability of the employee was the result of an accidental personal injury arising out of and in the course of employment?
3. Did the trial court err in disallowing a proposed Jury Instruction by the Appellants addressing causal relationship of the Claimant’s injuries and the
4 The circuit court did not enter the document embodying its judgment until October 17, 2024. Under Md. Rule 8-602(f), the City’s notice of appeal is “treated as filed on the same day as, but after,” the entry of judgment. 5 There are two appellants in this case: the City of Hagerstown, as an employer, and the City of Hagerstown, as a self-insurer. This opinion refers to those parties collectively as “the City.”
15 effect of pre-existing medical conditions?
4. Did the trial court err in allowing photographic evidence to be presented to the jury after Claimant failed to disclose their intention to introduce such photographs during discovery?
As discussed below, we conclude that the City has failed to show any error or
abuse of discretion in the circuit court’s rulings. Accordingly, the judgment will be
affirmed.
I. Sufficiency of the Evidence
In this appeal, the City contends that the circuit court erred when it allowed the
jury to decide whether Mr. Johnson was temporarily and totally disabled as the result of
an accidental injury arising out of and in the course of his employment. The City
contends that the court should have granted the City’s motion for judgment or its motion
for judgment notwithstanding the verdict on that question.
Motions for judgment under Md. Rule 2-519 and motions for judgment
notwithstanding the verdict under Md. Rule 2-532 test the sufficiency of the evidence at
trial. See Elste v. ISG Sparrows Point, LLC, 188 Md. App. 634, 647-48 (2009). The
moving party is entitled to judgment in its favor “‘when the evidence at the close of the
case, taken in the light most favorable to the nonmoving party, does not legally support
the nonmoving party’s claim or defense.’” Id. at 648 (quoting Giant Food, Inc. v.
Booker, 152 Md. App. 166, 177 (2003)). When assessing the sufficiency of the evidence,
the court must resolve all conflicts in the evidence in favor of the nonmoving party and
assume the truth of all evidence and all reasonable inferences tending to support the
position of the nonmoving party. Exxon Mobil Corp. v. Albright, 433 Md. 303, 349
16 (2013). Ordinarily, “‘where there is any evidence from which a rational conclusion may
be drawn, . . . the trial court must leave to the jury all considerations as to the weight and
value of such evidence.’” Baltimore County v. Kelly, 391 Md. 64, 80 (2006) (emphasis in
original) (quoting Jewel Tea Co. v. Blamble, 227 Md. 1, 4 (1961)). On appeal, this Court
reviews the denial of a motion for judgment or motion for judgment notwithstanding the
verdict to determine whether the decision was legally correct. See Scapa Dryer Fabrics,
Inc. v. Saville, 418 Md. 496, 503 (2011).
In the present case, it is beyond dispute that the evidence was sufficient for the
jury to conclude that Mr. Johnson was temporarily and totally disabled as the result of an
accidental injury arising out of and in the course of his employment. Two sources of
evidence independently supported that conclusion: (1) the decision of the Workers’
Compensation Commission dated January 30, 2023, based on the determination that Mr.
Johnson was temporarily and totally disabled as a result of an accidental injury; and (2)
the expert testimony of Dr. Hines, who opined that Mr. Johnson had a disabling
respiratory condition as a result of his work environment.
The Maryland Workers’ Compensation Act provides that a party “aggrieved by a
decision of the Commission . . . may appeal from the decision of the Commission” by
filing a petition for judicial review in the circuit court. Md. Code (1991, 2016 Repl. Vol.,
2020 Supp.), § 9-737 of the Labor & Employment Article (“Lab. & Empl.”). In the
judicial review proceeding, “(1) the decision of the Commission is presumed to be prima
facie correct; and (2) the party challenging the decision has the burden of proof.” Lab. &
Empl. § 9-745(b). On motion of any party to the action, “the court shall submit to a jury
17 any question of fact involved in the case.” Lab. & Empl. § 9-745(d).
Courts frequently describe this type of judicial review proceeding, in which a jury
decides factual questions involved in the Commission’s decision, as “an ‘essentially’ de
novo trial.” Baltimore County v. Kelly, 391 Md. at 74 (quoting Richardson v. Home Mut.
Life Ins. Co., 235 Md. 252, 255 (1964)). This type of trial is not “[a] true trial de novo,
. . . [which] would put all parties back at ‘square one,’ . . . as if the adjudication appealed
from had never occurred.” Bd. of Educ. for Montgomery County v. Spradlin, 161 Md.
App. 155, 189 (2005). At trial, the Commission’s decision “may be offered as
substantive evidence before the de novo fact finder” and “may be the subject of a jury
instruction[.]” Id. The decision may serve as “proof of the very proposition . . . decided
by the Commission.” Id. at 192.
In its brief, the City asserts that, as the claimant, Mr. Johnson had the burden of
proving that his alleged work injury caused his alleged disability. The City further argues
that, to satisfy that purported burden, Mr. Johnson needed to produce expert medical
testimony about the causal connection between his disability and his injury. The City is
mistaken. The City fails to recognize that the burden of proof rests with the party
challenging the Commission’s presumptively correct decision.
In proceedings before the Workers’ Compensation Commission, the claimant
bears the burden to show that the claimant is entitled to benefits. See S.B. Thomas, Inc. v.
Thompson, 114 Md. App. 357, 363 (1997). Thus, in the underlying proceedings
“[b]efore the Commission,” Mr. Johnson had “the burden of showing that the disability
claimed [wa]s causally related to the accidental injury.” Pro-Football, Inc. v. Tupa, 197
18 Md. App. 463, 486 (2011), aff’d, 428 Md. 198 (2012). In this case, the Commission
previously determined that Mr. Johnson had satisfied that burden. The City subsequently
petitioned for judicial review, and both parties moved for a jury trial. “At the circuit
court trial, the Commission’s decision [wa]s presumed correct” and, therefore, the City
had “the burden of proving by a preponderance of the evidence” that the decision was
incorrect. Id.
When an employer or insurer seeks judicial review after the claimant prevails in
the proceedings in the Commission, “‘the allocation of burdens switches.’” Bd. of Educ.
for Montgomery County v. Spradlin, 161 Md. App. at 196 (quoting Gen. Motors Corp. v.
Bark, 79 Md. App. 68, 80 (1989)); accord Baltimore County v. Kelly, 391 Md. at 75-76.
“In such a case, the decision of the Commission is, ipso facto, the claimant’s prima facie
case and the claimant runs no risk of suffering a directed verdict from the insufficiency of
[the claimant’s] evidence before the circuit court.” Gen. Motors Corp. v. Bark, 79 Md.
App. at 80; accord Calvo v. Montgomery County, 459 Md. 315, 325 (2018) (stating that
“[a] successful claimant has no burden of production in judicial review—the
Commission’s decision may serve as the claimant’s prima facie case”). At the de novo
trial, the previously successful claimant is “not required to prove anything[.]” S.B.
Thomas, Inc. v. Thompson, 114 Md. App. at 369. The claimant may “offer[] nothing”
and “simply rel[y]” on an argument that the employer or insurer failed “to rebut the
presumption of correctness of the Commission’s earlier ruling.” Id.
As a logical consequence of this reallocation of burdens, a claimant who
previously prevailed in the Commission “cannot suffer a summary judgment (or, perhaps,
19 a directed verdict at the end of the plaintiff’s case) against it on the ground that it failed to
produce a prima facie case.” Bd. of Educ. for Montgomery County v. Spradlin, 161 Md.
App. at 197. “The party that prevailed before the Commission” has “no burden of either
production or persuasion.” Id. at 198. “That prevailing party, by definition, cannot have
failed to satisfy a burden of production because that party had no burden of production.”
Id. Even if that party did have some burden of production, “the substantive evidence of
the presumptively correct decision of the Commission would . . . satisfy that burden.” Id.
“[A]t the circuit court level, any insufficiency in the evidence will work against”
the party challenging the Commission’s decision “and not against the party enjoying the
presumption that the Commission’s decision was correct.” Bd. of Educ. for Montgomery
County v. Spradlin, 161 Md. App. at 200 (citing Weston-Dodson Co. v. Carl, 156 Md.
535, 540 (1929)). In the present case, therefore, Mr. Johnson might have been entitled to
judgment in his favor if the City had failed to produce sufficient evidence to overcome
the presumption of correctness of the Commission’s decision. For instance, Mr. Johnson
might have been entitled to judgment in his favor if the City had failed to produce expert
opinion testimony to the effect that his disability was not causally related to his work-
related injury (or to the effect that he was not totally disabled as a result of his work-
related injury). See S.B. Thomas, Inc. v. Thompson, 114 Md. App. at 367-68. The City,
however, could not be entitled to judgment on the ground that Mr. Johnson had failed to
meet any burden of production, where he had no such burden.6
6 This Court has recognized only a few narrow circumstances in which a trial court might properly grant a motion for judgment against the party who previously prevailed
20 Yet even without the presumption of correctness of the Commission’s decision,
the evidence presented at trial was sufficient for the jury to find that Mr. Johnson was
temporarily and totally disabled as a result of an accidental injury arising out of and in the
course of his employment. At trial, Mr. Johnson testified that he experienced debilitating
respiratory symptoms shortly after his exposure to mold while working in rooms on the
basement level of the Barn office building around January 27, 2022. Environmental
sampling confirmed the presence of mold inside those same rooms. Dr. Hines, an
occupational and environmental pulmonologist, treated Mr. Johnson from March 2022
through the time of her testimony. Dr. Hines opined, to a reasonable degree of medical
certainty, that Mr. Johnson developed hypersensitivity pneumonitis as a result of his
exposure to mold in his work environment. Dr. Hines also opined that Mr. Johnson’s
respiratory symptoms substantially limit his ability to perform physical labor. Although
the City presented testimony from experts who disputed whether the exposure to mold
caused Mr. Johnson’s condition, and further disputed whether he was totally incapable of
working in a limited capacity, the jury was not required to credit those expert opinions
over the opinion of Dr. Hines.
before the Commission at the close of all of the evidence. See Bd. of Educ. for Montgomery County v. Spradlin, 161 Md. App. at 203 n.9 (recognizing that a development in the course of trial might cause an initially uncomplicated question of causation “to escalate into a medically complicated question” and that “an incremental burden of producing an expert medical witness might accrue and might attach to either party or both”); Smith v. Howard County, 177 Md. App. 327, 339 (2007) (holding that circuit court was permitted to grant judgment against the party that prevailed before the Commission, where the Commission made its decision without any evidence and therefore the decision was not entitled to the presumption of correctness).
21 In this appeal, the City makes no argument that the evidence was insufficient to
support a finding that Mr. Johnson was temporarily and totally disabled as a result of an
accidental injury arising out of and in the course of his employment. Rather, the City
attempts to restrict the sufficiency analysis to a much narrower factual issue.
In its brief, the City asserts that the Commission, “by decision dated January 30,
2023, . . . found that [Mr. Johnson] did sustain an accidental injury arising out of and in
the course of employment on January 27, 2022, and that [Mr. Johnson’s] disability,
specifically pulmonary airways disease, was caused by, in part, exposure to mold which
arose out of and in the course of employment.” (Emphasis in original.) The City argues
that “the issue of causal relationship between [Mr. Johnson’s] alleged accidental injury
and his alleged disability of pulmonary airways disease” is a complicated medical
question and, therefore, that Mr. Johnson needed to present expert medical opinion
testimony on that issue. (Emphasis in original.) The City asserts that, at trial, Dr. Hines
testified that “her opinion as to [Mr. Johnson’s] disability/diagnosis of pulmonary
airways disease had changed” to hypersensitivity pneumonitis two months after the
Commission issued its decision. The City further asserts that Dr. Hines testified that
“hypersensitivity pneumonitis is a distinct diagnosis from pulmonary airways disease,
which was determined to be the disability of [Mr. Johnson] at the Commission[.]”
(Emphasis in original.) Based on those assertions, the City argues that Mr. Johnson
“failed to present sufficient evidence to support the January 30, 2023 Commission
decision[.]”
The City’s argument is flawed in many respects. Despite the City’s repeated
22 assertions, the Commission did not determine that Mr. Johnson’s “disability” is
“pulmonary airways disease.” Throughout its opinion, the Commission described Mr.
Johnson’s condition as an “airways disease” and, at one point, described it as “pulmonary
airways disease.” The Commission further found that his disease was caused in part by
exposure to mold in his work environment and determined that he was entitled to
temporary total disability benefits. Correctly understood, the opinion expressed the
conclusion that Mr. Johnson experienced a period of temporary total disability as a result
of the disease. The Commission did not assign any particular label or labels to a
“disability,” nor was the Commission required to do so.7
The more fundamental flaw in the City’s argument, however, is that the City fails
to appreciate the difference between the Commission’s decision and the factual findings
underlying that decision. When a party petitions for judicial review of “the decision of
the Commission” under section 9-737 of the Labor & Employment Article, “the decision
of the Commission” is presumptively correct and “the party challenging the decision” has
the burden of proof. Lab. & Empl. § 9-745(b). As used in the Act, the term “‘decision of
the Commission[]’ . . . is a term of art that has a very precise and limited meaning.” Bd.
of Educ. for Montgomery County v. Spradlin, 161 Md. App. at 221. This term “does not
7 It may be correct to say that the Commission described the injury as an “airways disease” (or “pulmonary airways disease”). Generally, the term “‘[a]ccidental personal injury’” includes “a disease or infection that naturally results from an accidental injury that arises out of and in the course of employment[.]” Lab. & Empl. § 9-101(b)(3). It is incorrect, however, to equate the accidental injury with the disability resulting from that injury. For example, if Mr. Johnson became disabled because of complications from the treatment of his respiratory condition, the resulting disability would be compensable. See Suburban Hosp., Inc. v. Kirson, 362 Md. 140, 157-59 (2000).
23 embrace every subordinate, intermediate, or subsumed thought process that may have
entered into the decisional equation.” Id.
Maryland courts have “distinguished intermediate findings from the Commission’s
actual decision.” Bd. of Educ. for Montgomery County v. Spradlin, 161 Md. App. at 222.
“A decision of the Commission which an aggrieved party is entitled to have reviewed by
a court must be an operative order which has the effect of granting or denying some
benefit” under the Act. Flying “A” Serv. Station v. Jordan, 17 Md. App. 477, 480-81
(1973). “Most often, such a decision is reached by giving effect to multiple findings, but
it is the ultimate decision or order, not each individual finding, which is the basis for
judicial review.” Id. at 481. An “appeal” authorized by the Act “is not from the findings
or opinion of the [C]ommission but from its ‘decision.’” Liggett & Meyers Tobacco Co.
v. Goslin, 163 Md. 74, 78 (1932). “‘If, upon an appeal from [the Commission’s]
decision, it should appear that [the decision] was right and proper, [the decision] should
be affirmed, even though it also appear[s] that the findings of the [C]ommission were
erroneous.’” Bd. of Educ. for Montgomery County v. Spradlin, 161 Md. App. at 222
(quoting Liggett & Meyers Tobacco Co. v. Goslin, 163 Md. at 78).
“At the de novo trial, the propriety of the Commission’s original fact-finding is a
matter of no consequence.” Bd. of Educ. for Montgomery County v. Spradlin, 161 Md.
App. at 173. “At trial, the parties may rely on the same or different evidence than was
presented to the Commission.” Applied Indus. Techs. v. Ludemann, 148 Md. App. 272,
282 (2002) (citing Gen. Motors Corp. v. Bark, 79 Md. App. at 81); see also Stine v.
Montgomery County, 237 Md. App. 374, 382 (2018) (explaining that, at a de novo jury
24 trial, parties “may introduce new evidence in the circuit court so long as it relates to ‘a
factual issue that was actually decided by the Commission[]’”) (quoting Bd. of Educ. for
Montgomery County v. Spradlin, 161 Md. App. at 177); Kelly Catering, Inc. v. Holman,
96 Md. App. 256, 274 (1993) (approving jury instruction stating that a party “may rely on
the same, less[,] or more evidence than was presented to the Commission”). The jury “is
not so bound by the Commission’s fact findings as is normally the case in administrative
appeals, but is free to weigh the evidence (and the inferences from it) and reach entirely
opposite conclusions.” Egypt Farms, Inc. v. Lepley, 49 Md. App. 171, 176 (1981).
In the present case, the Commission awarded temporary total disability benefits by
a decision dated January 30, 2023. The opinion explaining that decision stated: “The
Commission . . . finds that [Mr. Johnson] did sustain an accidental injury arising out of
and in the course of employment on or about January 27, 2022.” The opinion continued:
“The Commission also finds that [Mr. Johnson’s] pulmonary airways disease was caused,
in part, by exposure to mold which arose out of and in the course of [his] employment
with [the City].”
The statement that Mr. Johnson developed “pulmonary airways disease” (or
simply an “airways disease,” as stated elsewhere in the opinion) was not a decision by the
Commission. Any finding as to the exact medical diagnosis or diagnoses for Mr.
Johnson’s condition was an intermediate factual finding supporting the decision. Any
number of different diagnoses might support a conclusion that Mr. Johnson became
temporarily and totally disabled as a result of an accidental injury arising out of and in the
course of his employment. Even if the jury rejected the Commission’s factual findings,
25 as it was free to do, the jury would be required to uphold the Commission’s ultimate
decision as long as the jury concluded that the decision was correct. See Bd. of Educ. for
Montgomery County v. Spradlin, 161 Md. App. at 222 (quoting Liggett & Meyers
Tobacco Co. v. Goslin, 163 Md. at 78).
In his appellate brief, Mr. Johnson further argues that there was sufficient evidence
for the jury to find that he suffered from a “pulmonary airways disease.” According to
Mr. Johnson, Dr. Hines testified that “hypersensitivity pneumonitis is a pulmonary
airways disease[.]” The City disputes this characterization of the testimony. The City
argues that, although Dr. Hines may have agreed “that hypersensitivity pneumonitis is a
subcategory of restrictive airways disease,” her testimony failed to establish that
“restrictive airways disease is the same as pulmonary airways disease.”
As explained above, the circuit court correctly concluded that it was immaterial
whether there was sufficient evidence to find that Mr. Johnson had “pulmonary airways
disease.” As this case illustrates, requiring juries to uphold a decision only if they agree
with supporting factual findings, such as whether the employee has a particular medical
condition stated in the Commission’s opinion, would produce unnecessary confusion.
Often, an injured employee may have more than one potential medical diagnosis or more
than one correct diagnosis. The employee’s diagnosis or diagnoses may change over
time with new information. Terminology used to describe one diagnosis may overlap
with the terminology used for another. At a de novo trial, lay jurors are not required to
decide whether they agree with a medical diagnosis described by the Commission, based
on updated or additional evidence that may be substantially different from even the best
26 evidence available many months earlier. The proper focus for review is the correctness
of the Commission’s decision, not the findings supporting that decision.
In this case, the jury received sufficient evidence to conclude that the City had
failed to prove by a preponderance of the evidence that the Commission’s decision
awarding temporary total disability benefits to Mr. Johnson was incorrect. The circuit
court was correct when it denied the City’s motion for judgment at the close of all
evidence and the City’s motion for judgment notwithstanding the verdict.
II. Verdict Sheet
The second issue raised in this appeal is closely related to the first issue. The City
contends that the circuit court erred when it submitted a verdict sheet asking whether Mr.
Johnson sustained an accidental personal injury arising out of and in the course of
employment on January 27th, 2022.
Under Md. Rule 2-522(b)(2)(A), the trial court “may require a jury to return a
verdict in the form of written findings upon specific issues.” “For that purpose, the court
may use any method of submitting the issues and requiring written findings as it deems
appropriate, including the submission of written questions susceptible of brief answers or
of written forms of the several special findings that might properly be made under the
pleadings and evidence.” Id. Generally, “a court’s use of a particular format will not be
reversed absent an abuse of discretion.” Applied Indus. Techs. v. Ludemann, 148 Md.
App. 272, 287 (2002) (citing Owens-Corning Fiberglas Corp. v. Garrett, 343 Md. 500,
525 (1996)).
The City observes that, when the Commission “f[ound] that [Mr. Johnson] did
27 sustain an accidental injury arising out of and in the course of employment on or about
January 27, 2022[,]” the Commission “also f[ound] that [Mr. Johnson’s] pulmonary
airways disease was caused, in part, by exposure to mold which arose out of and in the
courts of [his] employment with the [City].” The City asserts that all medical experts at
trial agreed that his diagnosis “changed from pulmonary airways disease to
hypersensitivity pneumonitis” after the Commission made its decision. The City
contends that the circuit court erred by failing to submit what the City calls the
“dispositive issue” of whether Mr. Johnson’s “disability, specifically pulmonary
airways disease, arose out of and in course of employment[.]” (Emphasis in original.)
The City’s argument concerning the verdict sheet suffers from the same fatal
defects as its arguments concerning the motion for judgment. The City’s argument relies
on the erroneous premise that the jury’s role was to review the Commission’s
intermediate factual findings, rather than the Commission’s decision.
In a de novo jury trial in review of a decision by the Commission, the jury “makes
specific findings of fact on specific issues that are carefully framed and submitted to it.”
Bd. of Educ. for Montgomery County v. Spradlin, 161 Md. App. 155, 190 (2005). At the
de novo trial, the court is not “bound to submit as an issue every subordinate fact.”
Schiller v. Baltimore & O.R. Co., 137 Md. 235, 244 (1920). Doing so “would only cause
confusion.” Id. “The facts submitted as issues should, as far as practicable, be confined
to the ultimate issues involved in the finding of the Commission from which the appeal is
taken, such as disability, dependency, whether the injury arose out of and in the course of
employment, and the like, according to the ultimate fact or facts to be determined.” Id.
28 In sum, the issues submitted to the jury “should be ‘ultimate issues’ and not issues with
respect to ‘every subordinate fact.’” Bd. of Educ. for Montgomery County v. Spradlin,
161 Md. App. at 191 (quoting Schiller v. Baltimore & O.R. Co., 137 Md. at 244). For
example, a trial court might submit questions such as “(1) whether the claimant suffered
an accidental injury arising out of and in the course of employment on [a particular date];
(2) whether the claimant’s disability is causally connected to the accidental injury; and
(3) for what period of time, if any, the claimant is entitled to . . . disability benefits.”
Pro-Football, Inc. v. Tupa, 197 Md. App. 463, 478 (2011), aff’d, 428 Md. 198 (2012).
Here, the Commission’s finding that Mr. Johnson developed “pulmonary airways
disease” (or simply an “airways disease”) was not a finding as to any ultimate issue. That
finding was an intermediate factual finding that supported the Commission’s conclusions
on the ultimate issues. At the de novo trial, the jury’s role was not to decide whether it
agreed with any or all of the intermediate factual findings stated in the Commission’s
opinion. Rather, the jury’s role was to decide the “‘ultimate issues . . . , such as
disability[] . . . [and] whether the injury arose out of and in the course of employment[.]’”
Bd. of Educ. for Montgomery County v. Spradlin, 161 Md. App. at 191 (emphasis in
original) (quoting Schiller v. Baltimore & O.R. Co., 137 Md. at 244).
At trial, the court properly selected a verdict sheet that, to the extent practicable,
was confined to the ultimate issues. The first question on the verdict sheet asked whether
Mr. Johnson “sustain[ed] an accidental . . . personal injury arising out of and in the course
of employment on January 27th, 2022[.]” The second question asked whether Mr.
Johnson was “temporarily totally disabled from January 28th, 2022 to the present” or for
29 “a different period of time[.]” The court was correct when it declined to submit questions
concerning the intermediate factual issues of the exact medical diagnosis for the
condition that produced the period of temporary total disability.
As part of its argument, the City appears to fault the circuit court for denying Mr.
Johnson’s motion to remand the case to the Commission to allow the Commission to
consider the new evidence generated after the Commission’s hearings. The City writes
that, “[a]gainst the will of the parties,” the court submitted the issues to the jury “rather
than remand the case” to the Commission. The record shows that the City waived any
right to complain about the denial of the motion for remand. At trial, the City vigorously
opposed Mr. Johnson’s motion for remand at the end of the City’s case in chief and his
renewed motion for remand at the close of the evidence. In both instances, the City
argued that it would be inappropriate for the court to remand the proceedings to the
Commission. The City cannot be heard to complain on appeal that the court denied the
motion for remand at the City’s express urging. See Md. Rule 2-517(c).8
III. Jury Instructions
As the next issue in this appeal, the City contends that the circuit court erred when
it declined to give proposed jury instructions concerning “the law of occupational
diseases.”
A trial court must give a requested instruction if three requirements are satisfied:
8 Because the issue is not properly raised for appellate review by either party, we express no opinion on whether the circuit court was correct in concluding that it lacked authority to remand the matter to the Workers’ Compensation Commission.
30 “(1) the instruction is a correct statement of law; (2) the instruction is applicable to the
facts of the case; and (3) the content of the instruction was not fairly covered elsewhere in
instructions actually given.” White v. Kennedy Krieger Inst., Inc., 221 Md. App. 601,
622-23 (2015) (citation and quotation marks omitted). The court has no obligation “to
instruct the jury on issues not generated by the evidence.” Spengler v. Sears, Roebuck &
Co., 163 Md. App. 220, 249 (2005). The trial court may decline to give a requested
instruction if the instruction is “superfluous,” “confusing,” or “inapplicable to the case at
hand.” S. Mgmt. Corp. v. Mariner, 144 Md. App. 188, 199 (2002) (quotation marks
omitted). This Court reviews a trial court’s refusal to give a requested jury instruction
under the “‘highly deferential abuse of discretion standard.’” Six Flags America, L.P. v.
Gonzalez-Perdomo, 248 Md. App. 569, 588 (2020) (quoting Woolridge v. Abrishami, 233
Md. App. 278, 305 (2017)).
In his initial claim with the Workers’ Compensation Commission, Mr. Johnson
asserted that he sustained an accidental injury on January 17, 2022, which he described as
“asthma” and “respiratory issues.” Mr. Johnson checked a box on the claim form to
indicate that he was not making any claim based on an occupational disease. In response,
the City raised two issues: whether Mr. Johnson sustained an accidental injury or
occupational disease arising out of and in the course of his employment; and whether Mr.
Johnson’s disability resulted from an accidental injury or occupational disease arising out
of and in the course of his employment.
After the hearing on October 4, 2022, the Commission determined that Mr.
Johnson’s condition did not meet the definition of an occupational disease and further
31 found that Mr. Johnson did sustain an accidental injury arising out of and in the course of
his employment. After the rehearing on January 19, 2023, the Commission again
determined that Mr. Johnson did not sustain an occupational disease and that he did
sustain an accidental injury arising out of and in the course of his employment.
The City petitioned for judicial review, challenging the Commission’s
determination that Mr. Johnson sustained an accidental injury. Mr. Johnson did not file
any petition or cross-petition to challenge the Commission’s determination that he did not
sustain an occupational disease.
At trial, the City submitted two proposed jury instructions concerning
occupational diseases. First, the City requested an instruction based on Maryland Civil
Pattern Jury Instruction (MPJI-Cv) 30:9, which concerns the definition of an occupational
disease. The pattern instruction states:
An Employee sustains an occupational disease when the Employee becomes actually incapacitated, either temporarily, partially, or totally, because of a disease contracted as the result of and in the course of employment. The incapacity must be one which prevents the Employee from performing the work in the last occupation in which the Employee was injuriously exposed to the hazards of the disease.
An occupational disease may be found in either of two ways: (1) the disease was due to the nature of the employment in which the hazard of the disease actually exist, or (2) the symptoms of the disease are consistent with those known to result from exposure to a physical, biological, or chemical agent attributable to the type of employment.
To be compensable, the alleged occupational disease must be due to the nature of the employment in general rather than merely the specific job in which the Employee was working.
The City further requested an instruction based on MPJI-Cv 30:11, which
32 concerns occupational diseases caused by the aggravation of a pre-existing condition.
This pattern instruction states:
An Employee who has a pre-existing medical condition which is aggravated by [a] workplace hazard[s] is entitled compensation if the resulting condition is due in part to the occupation.
In addition to the language quoted from the pattern instruction, the City requested
the following sentence, based on language from Blake v. Bethlehem Steel Co., 225 Md.
196, 200-01 (1961): “The mere aggravation of a disease not occupational in character is
insufficient to establish an occupational disease.”
Mr. Johnson opposed the City’s request for jury instructions concerning
occupational diseases. Counsel for Mr. Johnson argued that these instructions were
irrelevant and potentially confusing because the case did not involve any claim based on
an occupational disease.
The court declined to give the proposed instructions concerning occupational
diseases. The court concluded that, even if the proposed instructions were correct
statements of law concerning occupational diseases, those statements of law were
inapplicable to the claims for accidental injury. Consistent with its ruling, the court did
not submit any questions concerning occupational diseases to the jury.
In this appeal, the City contends that the circuit court erred by declining to deliver
the proposed jury instruction based on MPJI-Cv 30:11 and Blake v. Bethlehem Steel Co.
The City argues that the court’s ruling impaired the City’s right to present a “defense[] to
compensability[.]” The City asserts that, under Maryland law, “the mere aggravation of
a disease not occupational in character is insufficient to establish compensability.”
33 (Emphasis in original.) The City argues that its proposed jury instruction “regarding
aggravation of non-occupational diseases was a correct statement of law” and “would
[have] help[ed] clarify” an “issue” for the jury.
Contrary to the City’s argument, Blake v. Bethlehem Steel Co. does not state that
“the mere aggravation of a disease not occupational in character is insufficient to
establish compensability.” The correct quotation is: “‘The mere aggravation of a disease
not occupational in character is insufficient to establish an occupational disease.’” Blake
v. Bethlehem Steel Co., 225 Md. at 200-01 (emphasis added) (quoting Smith v. Sports
Room Supper Club, 181 N.Y.S.2d 130, 132 (N.Y. App. Div. 1958)). By its terms, this
proposition is limited to the issue of what constitutes an occupational disease. This
proposition does not establish any “defense[] to compensability” outside of an
occupational disease claim.
Blake v. Bethlehem Steel Co. concerns the definition of an “occupational disease”
under the Workers’ Compensation Act. In that case, the employee had worked as a pipe
fitter’s helper at a steel mill. Blake v. Bethlehem Steel Co., 225 Md. at 198. The
employee presented evidence that his working conditions in and around furnaces
aggravated his preexisting condition of chronic bronchitis. Id. at 197-98. The evidence
failed to establish that “chronic bronchitis and its sequelae were . . . characteristic of the
industry” in which the employee worked. Id. at 200. The Court concluded that, even
though the employee had presented evidence that his “working conditions aggravated the
nonoccupational bronchial condition,” the employee had failed to show that his condition
could “properly be attributed, in whole or in part, to an occupational disease.” Id. The
34 Court rejected the argument that “an ordinary disease may become occupational where it
is aggravated by the occupational environment.” Id. In support of its conclusion, the
Court favorably quoted an opinion in which an intermediate appellate court had stated:
“‘The mere aggravation of a disease not occupational in character is insufficient to
establish an occupational disease.’” Id. at 200-01 (quoting Smith v. Sports Room Supper
Club, 181 N.Y.S.2d at 132).9
The Maryland Workers’ Compensation Act “provides for the compensation of
accidental injuries arising out of and in the course of employment and occupational
diseases that are contracted as the result of and in the course of employment.” Luby
Chevrolet, Inc. v. Gerst, 112 Md. App. 177, 183 (1996). In many respects, the Act “treats
accidental injuries differently from occupational diseases.” Waters v. Pleasant Manor
Nursing Home, 361 Md. 82, 99 (2000). Because there are “fundamental difference[s] in
determining benefits for occupational diseases versus accidental injuries[,] . . .
occupational disease benefits should be analyzed differently than accidental injury
benefits.” Id. at 98.
Under the Act, “[a]n occupational disease is compensable only if the risks of the
9 Blake v. Bethlehem Steel Co. does not stand for the proposition that an occupational disease can never result from the aggravation of a preexisting condition. “‘[U]nder the Blake analysis the focus is not whether the pre-existing condition is occupational in character but whether the resulting condition is due, in part at least, to the occupation.” Black & Decker Corp. v. Humbert, 189 Md. App. 171, 183 (2009) (emphasis omitted) (quoting Allied-Signal, Inc. v. Bobbitt, 96 Md. App. 157, 167 (1993), rev’d on other grounds, 334 Md. 347 (1994)). To be compensable as an occupational disease, “‘it is the risk factors, not the disease, that must inhere in the nature of the employment.’” Baltimore County v. Quinlan, 466 Md. 1, 22 (2019) (quoting with approval Black & Decker Corp. v. Humbert, 189 Md. App. at 187).
35 disease are inherent to the nature of the employment.” Luby Chevrolet, Inc. v. Gerst, 112
Md. App. at 190. The Act requires compensation for an occupational disease “only if . . .
the occupational disease . . . is due to the nature of an employment in which hazards of
the occupational disease exist” or “has manifestations that are consistent with those
known to result from exposure to a biological, chemical, or physical agent that is
attributable to the type of employment in which the covered employee was employed[.]”
Lab. & Empl. § 9-502(d)(1). Accordingly, “[i]n order to maintain a claim for
occupational disease, a claimant must show, in addition to a causal link to the
employment, that the hazards of the disease are inherent to the nature of the employment,
i.e., nonaccidental.” Luby Chevrolet, Inc. v. Gerst, 112 Md. App. at 183. By contrast, to
maintain a claim for an accidental injury, an employee has no obligation to prove that the
injury resulted from “‘a risk inherent to the nature of employment.’” Waters v. Pleasant
Manor Nursing Home, 361 Md. at 99 (quoting Luby Chevrolet, Inc. v. Gerst, 112 Md.
App. at 191).
In the present case, Mr. Johnson raised no claim based on an alleged occupational
disease, either in the Commission or in the circuit court. His claim for compensation was
limited to a claim for an accidental injury. The Commission determined that Mr. Johnson
did not sustain an occupational disease and awarded benefits solely based on an
accidental injury. The trial court correctly determined that proposed jury instructions
about the requirements for proving an occupational disease were inapplicable. Moreover,
as counsel for Mr. Johnson aptly observed, the proposed instructions about occupational
diseases could have created confusion among the jurors by injecting a new issue into the
36 case. Worse yet, the City’s proposed instructions might have misled the jury into
believing that Mr. Johnson’s injury was not compensable as an accidental injury if it
resulted from the aggravation of a pre-existing condition.10 The circuit court did not err
or abuse its discretion in refusing to give instructions about proof of an occupational
disease.
The City further argues that, by failing to deliver the requested instructions, the
trial court “removed the burden to prove proximate cause from [Mr. Johnson.]”11 This
argument is without merit. In accordance with MPJI-Cv 30:3, the court instructed the
jury that “[a]n accidental injury is one that arises out of [and] in the course of
employment, and which is not intended by the employer.” In accordance with MPJI-Cv
30:12, the court instructed the jury that, “[i]n order to be compensable there must be
proof that the injury could have been caused by the accident and nothing else after the
accident occurred to cause the injury.” The court gave appropriate instructions
concerning the issue of causation of an accidental injury. The court was not required to
give any instructions about causation of an occupational disease, where no occupational
10 See Employees’ Ret. Sys. of City of Baltimore v. Dorsey, 430 Md. 100, 117-18 (2013) (explaining that “a preexisting condition that is worsened by an accidental injury does not automatically disqualify an employee from receiving workers’ compensation benefits, provided there is some causal relationship between the compensable accident and the injury sustained”). 11 Strictly speaking, Mr. Johnson had no burden to prove causation at trial. Because the Commission had determined that Mr. Johnson was entitled to temporary total disability benefits, Mr. Johnson no longer had any burden of proof. See Calvo v. Montgomery County, 459 Md. 315, 325 (2018). The City, as the party challenging the Commission’s decision, had the burden to prove that the decision was incorrect. See Baltimore County v. Kelly, 391 Md. 64, 75-76 (2006).
37 disease was found or claimed.
IV. Admission of Photographs
As the final issue in this appeal, the City contends that the circuit court erred when
it allowed Mr. Johnson to introduce photographs purporting to show mold in rooms in the
Barn office building where he had worked. The City argues that the court should have
precluded Mr. Johnson from introducing the photographs as a sanction for an alleged
discovery failure.
In February 2022, shortly after Mr. Johnson notified his supervisors about the
mold that he encountered while working in the Barn office building, the City hired a
contractor to inspect the basement level of the building. As part of the inspection, the
contractor collected samples and took photographs of the areas of suspected mold.
During his testimony at trial, Mr. Johnson sought to introduce photographs
showing mold in rooms on the basement level of the Barn building. Mr. Johnson testified
that the photos fairly and accurately represented the condition of the building when he
was working there in 2021 and 2022.
The City objected to the admission of the photographs, asserting that those
photographs were “not disclosed in discovery.” The City asserted that it had previously
sent a discovery request asking Mr. Johnson to produce documents or photographs that he
intended to introduce at trial and that Mr. Johnson had represented that he did not have
any such photographs in his possession.
In response, counsel for Mr. Johnson asserted that a contractor hired by the City
had taken the photographs and that the City had previously disclosed the photographs.
38 Counsel for Mr. Johnson also asserted that the photographs had been introduced
previously at a hearing before the Commission.
The court asked the City to explain how it might have sustained any prejudice
from “the failure to respond to discovery” if the City “already knew . . . what these
pictures looked like[.]” In response, the City stated that, if Mr. Johnson had disclosed
that he intended to use the photographs at trial, then the City “might have had somebody
from [the contractor] come in here to talk about the photographs[.]” The City stated that
it “[p]otentially” might have called the contractor to testify about where and when the
photographs were taken.
The court denied the objection to the admission of the photographs. The court
explained: “The photographs themselves are not a surprise. The intention to introduce
them may be a surprise[.]” As a “remedy” for the purported “discovery violation,” the
court ruled that it would not admit the photographs into evidence until after the City had
the opportunity to cross-examine Mr. Johnson about “the origin” of the photographs.
During cross-examination, Mr. Johnson admitted that he did not know who took the
photographs, but he reiterated that the photographs accurately depicted the condition of
the building when he worked there.
After cross-examination, the City renewed its request to exclude the photographs
from evidence based on the “failure to disclose [the photographs] in discovery.” The
City agreed with the court’s observation that the “existence” of the photographs “was not
a surprise[,]” and that the only new information was Mr. Johnson’s intention to use the
photos at trial. The court overruled the City’s objection. The court said that it
39 “recognize[d] [that] there was a discovery violation[,]” but concluded that “the prejudice
[was] very limited” under the circumstances.
In this appeal, the City contends that the circuit court erred by permitting Mr.
Johnson to introduce photographs purporting to show mold at his work environment. The
City asserts that it “reasonably relied” on discovery responses indicating that Mr. Johnson
did not intend to offer photographs at trial. In his response to a request for production of
“[a]ll photographs . . . relating to the happening of the injury,” Mr. Johnson wrote: “None
in our possession.” In his response to a request for production of “[a]ll other documents
which [he] propose[d] to introduce into evidence or rely upon at the hearing or trial[,]”
Mr. Johnson referred to an attachment which did not include the photographs in question.
The City acknowledges that it was “aware of the existence of the photographs” but
complains that it had “no notice that [Mr. Johnson] intended to introduce the photos into
evidence” at trial.
Maryland’s discovery rules provide that a trial court, “if it finds a failure of
discovery, may enter such orders in regard to the failure as are just, including . . . [a]n
order . . . prohibiting [the failing party] from introducing designated matters in
evidence[.]” Md. Rule 2-433(a)(2). “[T]he appropriate sanction for a discovery . . .
violation is largely discretionary with the trial court[.]” Admiral Mortg., Inc. v. Cooper,
357 Md. 533, 545 (2000). Because “addressing a discovery violation and imposing a
sanction for such a violation are matters wholly within the trial court’s discretion, . . .
appellate review is limited to determining whether an abuse of that discretion occurred.”
Dackman v. Robinson, 464 Md. 189, 236 (2019). Under this standard, an appellate court
40 will not “second-guess the [trial] court’s ruling” unless the trial court “exercised its
discretion in a manner that was ‘manifestly unreasonable, or [ ] on untenable grounds, or
for untenable reasons.’” Id. at 235 (quoting Levitas v. Christian, 454 Md. 233, 243
(2017)).
When determining whether to impose a discovery sanction, the trial court should
consider: “‘(1) the reasons why the disclosure was not made; (2) the existence and
amount of any prejudice to the opposing party; (3) the feasibility of curing any prejudice;
and (4) any other relevant circumstances.’” Dackman v. Robinson, 464 Md. at 231-32
(quoting Beka Indus., Inc. v. Worcester Cnty. Bd. of Educ., 419 Md. 194, 232 (2011)).
“‘[E]xclusion of evidence for a discovery violation is not a favored sanction and is one of
the most drastic measures that can be imposed.’” Butler v. S & S P’ship, 435 Md. 635,
662 (2013) (quoting Thomas v. State, 397 Md. 557, 572 (2007)). Discovery sanctions are
not intended to “operate as a windfall, but instead are intended to relieve the surprise or
prejudice a party suffers when [the party’s] opponent fails to abide by the discovery
rules.” Watson v. Timberlake, 251 Md. App. 420, 437 (2021). Ordinarily, “‘in
fashioning a sanction, the court should impose the least severe sanction that is consistent
with the purpose of the discovery rules[.]’” Id. (quoting Thomas v. State, 397 Md. at
571). The basic purpose of the discovery rules is “to require a party litigant, in response
to a discovery request, to disclose fully all of the facts requested by adversaries and,
thereby, eliminate, as far as possible, the necessity of any party to litigation going to trial
in a confused or muddled state of mind concerning the facts that gave rise to the
litigation[.]” Food Lion v. McNeill, 393 Md. 715, 717-18 (2006).
41 In the present case, the City has failed to show that the trial court abused its
discretion. Without the need for any disclosure from Mr. Johnson, the City knew of the
existence of the photographs as well as the content of those photographs. By all
indications, the City was the source of the photographs. The City had hired the
contractor to perform a mold inspection in February 2022. The City obtained the mold
inspection report, which included the photographs in question. The City’s expert
witnesses, Dr. Parkerson and Dr. Cheung, both considered the results of the inspection as
part of the basis for their expert medical opinions. Moreover, it appears that Mr. Johnson
previously offered the report as an exhibit at the Commission hearing on January 19,
2023. Accordingly, it appears that the City not only had notice that Mr. Johnson
possessed the document that included the photographs, but also had notice that he had
previously relied on that document in support of his claim for compensation.
Arguably, Mr. Johnson should have informed the City, in his written discovery
response, that he was in possession of the photographs that he had previously obtained
from the City and presented to the Commission. But even if his failure to mention that
information amounts to a discovery violation, any prejudice resulting from the failure
was minimal. The circuit court acted well within its discretion in concluding that the
potential prejudice to the City did not justify the exclusion of the photographs from
evidence. See Zachair, Ltd. v. Driggs, 135 Md. App. 403, 438 (2000) (concluding that
party sustained no prejudice from opposing party’s failure to reveal intention to call
attorney as an expert witness on the issue of attorney fees, where it was “clear that they
were aware” that the opposing party was seeking to recover its attorney fees and where
42 there was “no reason to believe that they did not have sufficient opportunity to prepare a
defense”); Bartholomee v. Casey, 103 Md. App. 34, 49 (1994) (concluding that trial court
did not abuse its discretion in allowing plaintiffs to introduce evidence concerning lead
paint on exterior of house, despite deficient interrogatory answers, where the defendant
had received notice of the presence of lead paint on the exterior of the house and “could
hardly claim to have been surprised by plaintiffs’ desire to place that evidence before the
jury”).
JUDGMENT OF THE CIRCUIT COURT FOR WASHINGTON COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANTS.
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