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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Employment Law
Satisfied Customers: 89636
Experience:  20+ Years of Employment Law Experience
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I have a workers compensation case on appeal in Maryland currently.

Customer Question

I have a workers compensation case on appeal in Maryland currently. I have in my possession an audio recording of a witness who was once at the time of my injury a co-employee and a witness to the injury. He now is the new owner, since the old owner died and I would like to either deposition him or if I have to ask the Workers Compensation Commission consider the evidence because on the recording it can be heard me asking him if he remembered the day I hurt my back on the job and him replying yes. The employer/insurer said it never happened after convincing me not to file a claim until the limitations statute had run out.
Under Md. Code Ann., Lab. & Emp. § 9-736(b), the Workers’ Compensation Commission retains jurisdiction to hear new issues while other issues in the same claim are pending on appeal, so long as no evidence was taken or decision made on the new issues in the hearing from which the appeal was taken.
Md. Code Ann., Lab. & Emp. § 9-742 does not deprive the Commission of jurisdiction while a previous award is on appeal, and the agency retains jurisdiction if the new claim is properly authorized under LE § 9-736(b).
Now, with that done being said, I would like to present to the commission either the recording itself, a deposition of the witness, or perhaps the witness himself and quite possibly all of the above. My question is how to do it. Do I file a new claim or ask for action on a previously filed motion? If the later, then do I have to file a motion and if so do I use the original claim number? If a deposition, how do I go about doing that? I know I have to subpoena him to appear most likely at the spot the company that will handle the deposition but what I am confused about is do I have to send him a subpoena from a current claim which was denied and use that claim number, file a new claim or what? I don’t know how to start the process. Please don’t tell me to get an attorney. I have tried for such a long time to do that; noone wants the case because it was filed late. I’m trying to get the statute of limitations tolled based on fraud amongst other things which may or may not include:

9-709(d)(1)(ii) Estoppel- a failure to file a claim in accordance with this section caused by facts and circumstances amounting to an estoppel.
The employer, insurer, attorney advised me I wasn’t eligible for workers compensation?

9-709(d)(1)(i) Fraud- a failure to file a claim in accordance with this section caused by fraud.
The employer, insurer, attorney advised me I wasn’t eligible for workers compensation?

9-712(b) Advising that claim denied prohibited - the employer, insurer, attorney perform a prohibited act when the employer or insurer advised the covered employee that the claim has been denied.
The employer, insurer, attorney advised me I wasn’t eligible for workers compensation?

9-708(b)(1)(2) Claim limitation period tolled - claim limitation period in § 9-709(b)(3) of this subtitle does begin to run until the employer files a report with the Commission? They never filed a report.

9-707(a) Report by employer to Commission - did the employer violate the rule for not reporting the accidental personal injury and the disability to the Commission within 10 days after receiving oral of the disability?
The manager actually caused and witnessed the accident, then told me to get to work, I wasn’t covered under work comp, refused to call me an ambulance, would not give me a claim form when I asked him for a form twice and eventually fired me for complaining about the pain in my back.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Fran-mod replied 1 year ago.
I'm Fran, and I’m a moderator for this topic.

We have been working with the professionals to try to help you with your question. Sometimes it may take a bit of time to find the right fit. I was checking to see if you had already found your answer or if you still needing assistance from one of the professionals.

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Customer: replied 1 year ago.
Please keep it open for now.
Expert:  Fran-mod replied 1 year ago.
Thank you Michael,

We will seek a legal professional for your question.
Expert:  Wendy-Mod replied 1 year ago.
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We are still working with our Legal professionals to find you the best possible match. I wanted to touch base to see if you still needed a professional’s assistance.

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Customer: replied 1 year ago.
Keep it open.
Expert:  Wendy-Mod replied 1 year ago.
Thank you again for your patience, we will continue to look for a professional to assist you. Please let me know if I can be of any further assistance while you wait.

Best,
Wendy
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

If your claim was denied and you are on appeal, you are going to first get the appeal heard and the dismissal of your case vacated, since you cannot just file a new case as it would be dismissed based on "res judicata" or already decided.

In your appeal brief you can include information regarding having a recorded statement from the individual admitting to the accident occurring together with the evidence that the statute is tolled because no workers compensation claim has ever been filed, since the law states whether or not the employer believes he injury to be legitimate they must file the report of alleged injury.

Once you get the appeal heard, if they vacate the dismissal of your claim, THEN you would issue a subpoena for deposition of the new owner and you would ask him questions in the deposition about the injury and if he denies the injury, then you would use the audio tape to impeach his testimony and prove he is not credible. You can use the tape in the deposition to impeach his testimony or you can hold off until you go to trial to present the tape after he lies in his testimony to impeach his credibility.



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Customer: replied 1 year ago.

Ok but how to I subpoena him for a deposition? Where do I get the subpoena from, workers comp or the circuit court? Do I have to file a new claim or use the claim number I already have?

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

You do not file any new claim. It would be under the case number XXXXX are appealing already. Where are you appealing your case to, the Circuit Court? If so and the Circuit court is going to hear the case, then you would obtain the subpoena from the clerk at the circuit court. If they are sending it back to the workers compensation court, then you get the deposition subpoena from their clerk.
Customer: replied 1 year ago.

Actually it was dismissed by the circuit court for being filed a day late while the petition sat in the post office. It has already been to both state appeal courts and the court of special appeals agreed to strike a recording of the witness. I am currently thinking about an appeal to the US Supreme Court and I assume I have 90 days from the Court of Appeals denial of my writ of certiorari to get that deposition.

I had already had 3 wintnesses show up for the work comp hearing but the comissioner wouldn't allow any testimony, only took it under profer what they would say. A couple of years ago before I had a hearing in cumberland MD the comissioner's secretary told me that the comissioner said if I had a recording to bring it with me and something to play it in, but I moved the hearing to baltimore so the witnesses wouldn't have to drive 3 hours.

So, I have never had any witness ever testify and the emplorer/insurer is trying to say the injury never happened. This is the second time around with the very same case. I filed back in like 2002 but that was dismissed, too because my witness was actually in the Iraq war. I know I filed late, the injury ocurred in 1993 but I was told by my boss I wasn't covered under work comp. I believed him because I was caryying my toolbox across the shop floor before my first day of work, when the other mechanic dropped his end, bringing my lower back slamming to the ground as the 400 lb tool box, torn ligaments, cartiledge, muscle and damaged nerves the doctor said.

The judge at circuit court back in like 2003 or so, did say "I believe something occurred on that day in question but without any colaberating testimony, I will have to rule in favor of the emplorer/insurer."

Then I lost again on appeal.

Then I found out my witness, a mechanic there was the new owner and I already recorded him back in 2000, before 911 and the war. I was and am still hoping to defeat "res judicata", because of fraud.

Expert:  Law Educator, Esq. replied 1 year ago.
You cannot appeal to the US Supreme Court if this is a state workers compensation case, it has to go to the State Court of Appeals and then to the State Supreme Court. The US Supreme Court would not get involved, you have to exhaust your state court remedies.

If you just found out your witnesses existed, then you have fraud to argue, then you have to go back to the initial court which is workers compensation and move to vacate their dismissal based on fraud and if they deny you then you go back to the circuit court and then appeals court if denied and you have to provide proof that you recently discovered this evidence and it was not available at the time that the court decision was entered. I am afraid this is your only recourse as filing any new case would get dismissed.
Law Educator, Esq., Attorney
Category: Employment Law
Satisfied Customers: 89636
Experience: 20+ Years of Employment Law Experience
Law Educator, Esq. and 5 other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
I did get denied a writ in the MD Court of Appeals. I didn't know there was a Supreme Court in MD. Thanks though about the info on where and how to start again. So, to move means file a motion, I assume in the work comp commission. Great, now I know. Thanks!!
Expert:  Law Educator, Esq. replied 1 year ago.
The MD Court of Appeals is the MD Supreme Court, but I was not aware you were turned down by them as well, since you mentioned only the Circuit Court. You need to file back at the beginning though, workers compensation, and file to vacate their prior ruling based on recently discovered fraud and then work your way back through the higher courts if denied.
Customer: replied 1 year ago.
Thanks again, did you get the tip? I got the infamous, this page cannot be displayed error after sending a tip.
Expert:  Law Educator, Esq. replied 1 year ago.
No, I did not get the tip, don't know what happened. Thank you.
Customer: replied 1 year ago.
I don't know what happened either. I am an expert on here as well on cars. I see the bonus in my question expenses. Give it a few minutes, I guess. If it don't show up, it was $8.75. Contact JA and show them this post and ask them where it's at. If you still don't get it let me know.
Expert:  Law Educator, Esq. replied 1 year ago.
I will do. Thank you again.

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