Reversing the Supreme Court of Maryland? Yes, It Can Be Done! A Recap of Ken Berman’s Efforts To Change the Law For His Client Is Published in the Spring 2024 Trial Reporter
Ken Berman fought for his client all the way to the Supreme Court of Maryland, and when the highest court of Maryland still denied his client benefits, Ken then went to Annapolis and lobbied to get the law changed so that his client would get benefits, and he was successful in doing so.
Ken pursued a Workers’ Compensation claim on behalf of a retired fire fighter, Patrick Spevak, in Montgomery County, Maryland to get Mr. Spevak benefits for his work related hearing loss. Mr. Spevak years earlier had sustained an orthopedic injury in the line of duty and was given a disability retirement for this physical injury. When Ken sought to bring a subsequent claim to get benefits for Mr. Spevak’s work related hearing loss that had not been diagnosed until after the disability retirement was awarded, the Workers’ Compensation Commission denied Mr. Spevak’s rights for this subsequent claim. The Commission’s denial was on the basis that Mr. Spevak had already been given a disability retirement by the County, so any future workers’ compensation benefits would be offset by the disability retirement as they felt these benefits were, “similar,” as defined by Maryland Code § 9-610 of the Labor & Employment Article, and thus should be offset. Ken believed that since the disability retirement was for a different condition, an orthopedic injury, and not for Mr. Spevak’s work related hearing loss, that the benefits were not “similar.” At every level Mr. Spevak was denied benefits; the Commission, the Montgomery County Circuit Court, the Appellate Court of Maryland, and then the Supreme Court of Maryland.
The issue before the Supreme Court of Maryland was whether or not the Appellate Court of Maryland’s decision in Mr. Spevak’s case, that the term “similar” in the statute means “same employment,” which would offset Mr. Spevak’s claim for benefits, contradict the Supreme Court of Maryland’s holding in Reger v. Washington Cty. Bd. of Education, 455 Md. 68 (2017) and similar cases, which held that the term “similar” in the statute means that the benefits arose from the “same injury” as opposed to the “same employment. When Ken argued before the Supreme Court of Maryland, he stated that the law has been clear for over 40 years that the word “similar” meant for “the same injury,” but the Court said that’s not what the legislature meant and found against Mr. Spevak. See this article in the daily record about the case, there was also a dissent that took Ken’s position.
After the Supreme Court of Maryland found against Mr. Spevak, Ken believed that this decision was incorrect and an injustice for his client and other injured workers. So instead of giving up, he went to the legislature the following legislative session in support of a bill to clarify what the legislature meant by the word similar. He testified before both the house and the senate, and the legislature passed a bill, which went into law in October 2023, that clarified that the word “similar” had the same meaning that Mr. Berman was advocating for; “the same injury.” This law clarifies as Ken believed that Mr. Spevak and many other Maryland Fire Fighters and injured municipal workers who have suffered career ending injuries, would not be denied benefits for other subsequent work related diseases that did not manifest until after the workers were retired. https://mgaleg.maryland.gov/mgawebsite/Legislation/Details/SB0377?ys=2023RS
The appellate Courts sometimes joke, that a certain type of relief can only be granted in the legislature, and that’s what Ken did. When the courts said in this case that the legislature meant the opposite of what Ken thought they meant, Ken went straight to Annapolis to ask them, and the legislature gave him the answer he was looking for.
You can read Ken’s Article which goes into greater detail in the Spring 2024 Trial Reporter, The Journal of the Maryland Association for Justice: https://www.mdforjustice.com/?pg=trialreporter
