Montgomery County, Maryland v. Peter Gang, No. 768, September Term, 2017.
Opinion by Shaw Geter, J.
WORKERS’ COMPENSATION ACT – WORKERS’ COMPENSATION
COMMISSION – READJUSTMENT – LIMITATION ON RETROACTIVE
ADJUSTMENT OF RATE OF COMPENSATION
The Workers’ Compensation Commission’s broad revisory power under Maryland Code,
Labor & Employment Article (“LE”), § 9-736(b) does not permit the Commission to
retroactively readjust the rate of compensation of an award already paid. The revisory
power is limited by statute to future awards where a statutory circumstance required
under LE 9-736(a) exists, such as aggravation, diminution or termination of disability.
Circuit Court for Montgomery County
Case No. 423509V
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 768
September Term, 2017
______________________________________
MONTGOMERY COUNTY, MARYLAND
v.
PETER GANG
______________________________________
*Eyler, Deborah S.,
Shaw Geter,
Raker, Irma, S.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Shaw Geter, J.
______________________________________
Filed: November 8, 2018
*Eyler, Deborah S., J., participated in the hearing
and conference of this case while an active
member of this Court; she participated in the
adoption of this opinion as a retired, specially
Pursuant to Maryland Uniform Electronic Legal
Materials Act assigned member of this Court.
(§§ 10-1601 et seq. of the State Government Article) this document " authentic.
2018-11-08 15:15-05:00
Suzanne C. Johnson, Acting Clerk
In 2012, the Maryland Workers’ Compensation Commission awarded Peter Gang
compensation for an injury he sustained while employed with Montgomery County. The
rate of pay, however, was incorrectly calculated, as it failed to recognize Mr. Gang’s status
as a “public safety officer,” which entitled him to higher compensation. Four years later
he filed a “Request for Document Correction,” whereupon the Commission issued an
amended award that retroactively increased his rate of pay. On judicial review, the Circuit
Court for Montgomery County affirmed the Commission’s decision. Montgomery County
timely appealed and presents us with the following question, which we have rephrased1:
Did the Commission err in retroactively modifying appellee’s award of
workers’ compensation?
For the reasons stated below, we shall reverse the judgment of the circuit court.
BACKGROUND
Appellee Peter Gang was a correctional officer employed by Montgomery County,
appellant. On September 17, 2011, Gang was accidentally injured at a facility and
thereafter filed a workers’ compensation claim. Following a hearing on April 26, 2012,
the Workers’ Compensation Commission issued a decision on May 2, 2012, which found
Gang suffered a permanent partial disability and awarded him compensation at the rate of
$157 a week, for 70 weeks.
1
Appellant originally presented the following question: Did the Commission and the trial
court err in finding the Commission could modify an award even though the period for
timely appeal or rehearing had expired and there was no allegation of a change in
circumstance of the injury?
The order, however, failed to recognize his status as a “public safety officer,” under
§ 9-628 of the Labor and Employment Article, which entitled him to a higher rate of pay.
Both parties agree the May 2, 2012 Order was error and that Gang initially received
compensation at the incorrect rate.2 Neither party filed a motion for rehearing3 or appeal
to the circuit court.4
Almost four years later, on March 22, 2016, a “Request for Document Correction”
was filed by Gang’s counsel regarding the 2012 case.5 The request alleged that Gang was
paid at an incorrect rate. The Commission, on March 25, 2016, issued an amended award,
retroactively modifying his compensation to $314 a week. Appellant objected to the
Commission’s actions because it had not been notified and filed a “Request for Rehearing”
on April 6, 2016. Appellee then filed a request, on April 13, asking that the Commission
“withdraw the Document Correction filed on 3/22/16, strike the Order issued on 3/25/16
2
Appellee concedes that, since then, the County has paid him the full amount of
compensation he was entitled to.
3
“Within 15 days after the date of a decision by the Commission, a party may file with
the Commission a written motion for a rehearing.” Md. Code Ann., Lab. & Empl. § 9-
726(a) (West 2018).
4
An employee “aggrieved by a decision of the Commission…may appeal from the
decision of the Commission provided the appeal is filed within 30 days…by filing a
petition for judicial review[.]” Md. Code Ann., Lab. & Empl. § 9-737 (West 2018).
5
Counsel for appellee first filed a Request for Document Correction with the incorrect
rate of pay for a public safety officer at the time of Gang’s injury. Six minutes later, counsel
filed a second Request for Document Correction with the correct figure.
2
and set this case in for hearing on the issue of the correct weekly permanent partial
disability rate in the 5/2/12 Order.”
The Commission denied the County’s “Request for Rehearing.” The County then
filed a second “Request for Rehearing” on April 21, 2016, and argued that in light of
appellee’s withdrawal of his initial Document Correction, the Commission should “rescind
the order dated 3/25/16 that implemented that document correction and the denial of the
rehearing request dated April 19, 2016.”
Following a hearing on June 27, 2016, the Commission issued an order that affirmed
the March 25, 2016 Order, finding it was a proper use of the Commission’s “continuing
jurisdiction” under Labor and Employment Section 9-736(b) of the Maryland Code.
Appellant filed a petition for an on the record judicial review in the Circuit Court
for Montgomery County, on July 26, 2016,6 and appellee filed a cross-appeal for a de novo
review on August 9. Appellee also filed a Motion to Dismiss the Petition for Judicial
Review on October 18, 2016, which was opposed by appellant and denied by the court at
a hearing on December 13, 2016. An on the record review of the Commission’s findings
was held on April 19, 2017, where counsel presented argument. The circuit court affirmed
the decision of the Commission, memorialized in an order entered May 25, 2017.
Appellant then brought this timely appeal.
6
The initial petition did not state whether it was an on the record or de novo appeal.
However, appellant filed an amended petition on October 31, 2016 confirming it was a
petition for an on the record review.
3
STANDARD OF REVIEW
With an “appeal on the record of the Commission…no new evidence is taken nor is
any fresh fact-finding engaged in. The determination of whether the decision of the
Commission was free from error will entail only an examination of the record of the
proceedings before the Commission.” Simmons v. Comfort Suites Hotel, 185 Md. App.
203, 224–25 (2009) (internal citation and quotation omitted). The reviewing court is
“limited to determining if there is substantial evidence in the record as a whole to support
the agency’s findings and conclusions, and to determine if the administrative decision is
premised upon an erroneous conclusion of law.” W.M. Schlosser Co. v. Uninsured
Employers’ Fund, 414 Md. 195, 204 (2010) (internal citation and quotation omitted). We
examine the agency’s decision “in the light most favorable to it” and “the agency’s decision
is prima facie correct and presumed valid.” Id. at 205 (internal citation and quotation
omitted). While an administrative agency’s interpretation of a statute should “ordinarily
be given considerable weight by reviewing courts,” id., “[m]istaken interpretation of law,
however honestly arrived at, are held not to be within the exercise of sound administrative
discretion.” Subsequent Injury Fund v. Baker, 40 Md. App. 339, 343 (1978) (internal
citation and quotation omitted).
ANALYSIS
When interpreting the language of a statute, the primary goal is to “ascertain and
effectuate the intent of the Legislature.” Walzer v. Osborne, 395 Md. 563, 571 (2006)
(internal citation and quotation omitted). We first look to the statute’s plain language,
4
“giving it its natural and ordinary meaning” and “[w]e neither add nor delete words to a
clear and unambiguous statute to give it a meaning not reflected by the words.” Id. at 571–
72 (internal citation and quotation omitted). If the statutory provisions are “clear and
unambiguous and express a plain meaning, we will give effect to the statute as it is written.”
Md. Div. of Labor and Indus. v. Triangle Gen. Contractors, Inc., 366 Md. 407, 420 (2001)
(internal citation and quotations omitted). In such circumstances, “no construction or
clarification is needed or permitted, it being the rule that a plainly worded statute must be
construed without forced or subtle interpretations designed to extend or limit the scope of
its operation.” Id. at 420–21 (citing Giant Food, Inc. v. Dept. of Labor, 356 Md. 180, 189
(1999) (internal quotations omitted)).
Section 9-736 of the Labor and Employment Article addresses the Workers’
Compensation Commission’s revisory power and states:
(a). – Readjustment of rate of compensation
If aggravation, diminution, or termination of disability takes place or is
discovered after the rate of compensation is set or compensation is
terminated, the Commission, on the application of any party in interest or on
its own motion, may:
(1) readjust for future application the rate of compensation; or
(2) if appropriate, terminate the payments.
(b). – Continuing powers and jurisdiction; modification
(1) The Commission has continuing powers and jurisdiction over each claim
under this title.
(2) Subject to paragraph (3) of this subsection, the Commission may modify
any finding or order as the Commission considers justified.
5
(3) Except as provided in subsection (c) of this section, the Commission may
not modify an award unless the modification is applied for within 5 years
after the latter of:
(i) the date of the accident;
(ii) the date of disablement; or
(iii) the last compensation payment.
Appellant argues the Commission’s retroactive award was in violation of its
authority, relying on the language of the statute and the Court of Appeal’s decision in Sealy
Furniture of Maryland v. Miller, 356 Md. 462 (1999). Appellee, on the other hand, argues
the modification was properly within the Commission’s broad revisory power and, in
support of his position, cites Subsequent Injury Fund v. Baker, 40 Md. App. 339 (1978)
and Waters v. Pleasant Manor Nursing Home, 127 Md. App. 587 (1999). He claims the
Commission “did not change a past rate of compensation,” but rather “merely corrected a
clerical mistake in the original Order.”
In Sealy Furniture of Maryland v. Miller, the Court of Appeals addressed the limits
of the Commission’s revisory power. There, the Commission ordered Employer to pay
permanent partial disability benefits and granted Employer’s request for a credit
reimbursing them for six months of mistaken payments to Employee, “the effect of which
was to excuse any further payments.”7 Sealy Furniture of Maryland, 356 Md. at 465.
7
The total amount of the credits granted outweighed the total amount of disability benefits
that the jury awarded Miller.
6
On review, the Court of Appeals concluded the Commission did not have the
authority to credit the overpayment against a new award. Id. at 467–68. “[A]lthough the
revisory power of the Commission under § 9-736 is broad, it is not unlimited.” Id. at 468.
Further, “(the) Commission may not disregard other legislative directives, Jung v.
Southland Corp., 351 Md. 165 [] (1998), or, indeed, the construction of the workers’
compensation law by this Court.” Id. The Court then stated that “if [overpayments are] to
be corrected by allowing a recovery, either directly or in the form of a credit against another
award, the Legislature will have to provide that correction.”8 Id. at 470 (emphasis added).
In Subsequent Injury Fund v. Baker, employee Baker was injured in the course of
his employment and, while in the hospital, discovered he had a form of bone cancer that
predated the injury. Baker, 40 Md. App. at 340. As a result of the pre-existing condition,
the Subsequent Injury Fund (SIF)9 was impleaded. At a hearing, the Commission found
8
In 2000, the Maryland General Assembly passed a statute authorizing the Commission
to order an offset or credit against an award for permanent partial disability for any
vocational rehabilitation or temporary total disability benefits previously paid to a covered
employee. 2000 Md. Laws 230.
9
SIF is a state agency created to provide additional compensation to Workers’
Compensation claimants that suffer from pre-existing injuries or disabilities that predate
their work-related injuries, as well as ease the burden of employers. “[I]f an employee,
already having a permanent impairment, suffers a subsequent occupational injury that
results in a permanent disability that is substantially greater, due to the combined effect of
the previous impairment and the subsequent injury, than it would have been from the
subsequent injury alone, the employer is liable only for the compensation payable for the
subsequent injury.” Schaffer v. Subsequent Injury Fund, 207 Md. App. 255, 256–57 (2012)
(quoting Carey v. Chessie Computer Servs., Inc., 369 Md. 741, 743–44 (2002)). “[T]he
employer pays for the second injury and the Fund pays for ‘the balance of the total award.’”
Id. (quoting Subsequent Injury Fund v. Teneyck, 317 Md. 626, 636 (1989).
7
Baker was “permanently and totally disabled” and awarded him $45,000 in benefits, with
the employer ordered to pay $6,667 and SIF ordered to pay the remainder. SIF did not
appeal the decision, although Baker’s employer-insurer did. Id.
On appeal, the circuit court, in light of a case decided after the Commission’s initial
decision,10 remanded. SIF filed additional issues and requested the Commission modify
its prior award against SIF based on Subsequent Injury Fund v. Thomas, 275 Md. 628
(1975).11 The Commission found Thomas applicable and, as such, reversed its judgment
against SIF.
Baker petitioned for judicial review in the circuit court and the court reinstated the
judgment against SIF, reasoning that “the Fund did not appeal the original order…that
order was res judicata and the Commission exceeded its authority on remand by reopening
the case.” Baker, 40 Md. App. at 341. This Court disagreed, holding it was within the
Commission’s broad reopening powers to reconsider its award against SIF in light of
Thomas, a recent development in the case law, and that the Commission may “within the
period for which compensation is allowed change or revoke any order on the ground of
mistake of law.” Id. at 347–48 (internal citation and quotation omitted).
10
Gillespie v. R & J Construction Co., 275 Md. 454 (1975) held that the Commission
cannot award a greater award for the loss of an eye than the highest medical rating found
by the Commission. In Baker’s case, the highest medical rating was 20% loss of use of the
arm, whereas the Commission awarded Baker 40% loss of use of the hand.
11
“In essence,” Thomas held “that the Fund is not liable for a disability caused by the
deterioration of a pre-existing impairment which arises after a subsequent compensable
injury and is neither aggravated nor accelerated by the subsequent compensable injury.”
Baker, 40 Md. App. at 341 (citing Thomas, 275 Md. at 634–35).
8
Similarly, the Waters Court affirmed the Commission’s use of continuing
jurisdiction under L.E. § 9-736 to consider a mistake of law. 127 Md. App. 587 (1999).
There, a law was enacted eliminating a $45,000 cap on compensation for permanent total
disability. Id. at 592. The petitioner was injured before the enactment, but found
permanently and totally disabled after the law passed. Id. The “salient issue,” thus, was
whether “the amount of [a] claimant’s permanent total disability compensation [is]
established by the law in effect when claimant was injured or when claimant became
permanently totally disabled.” Id. We held that the Commission properly exercised
jurisdiction under 9-736(b) in deciding such a question of law. Id. at 590–92.
In the case at bar, the Commission did not re-evaluate or modify an award based on
a legal mistake in light of case law, as in Baker, nor order an indefinite resumption of
payments based on a statutory revision, as in Waters. Furthermore both cases involved
future awards of compensation, not retroactive ones. As such, their holdings are not
applicable.
To be sure, the Worker’s Compensation Act is a “comprehensive scheme for
compensation to employees of applicable employers for accidental job related injuries.”
Continental Cas. Co. v. Mirabile, 52 Md. App. 387, 395 (1982). Section 9-736 is part of
that larger statutory scheme. In interpreting comprehensive statutory schemes, “the
legislative intention is not determined from (a) statute alone, rather it is to be discerned by
considering it in light of the statutory scheme.” Jung v. Southland Corp., 351 Md. 165,
177 (1998) (internal citation and quotation omitted). “Nor should (a) statute be read so as
9
to render another statute in that statutory scheme, or any portion of it, meaningless,
surplusage, superfluous, or nugatory.” Id.
It is undisputed that the Commission readjusted the rate of compensation of
appellant’s award, where no statutory circumstances, such as aggravation or diminution,
were averred or discovered and ordered additional compensation for a past award. No
language in § 9-736 expressly authorizes such a change or readjustment of an award already
paid. Nevertheless, appellee contends the Commission’s actions under § 9-736(b) are not
restricted by § 9-736(a). We disagree, as such an interpretation would render § 9-736(a),
which limits rate adjustments to future application only and requires a change of condition,
meaningless. As stated by the Court in Sealy, the Commission’s revisory power is “not
unlimited.” In light of longstanding principles of statutory interpretation and the lack of
plain language, we decline to infer a legislative intent not specified in the statute and, thus,
hold the Commission erred.
We disagree with appellee’s characterization of the Commission’s actions as merely
“correcting a clerical error.” The record does not substantiate this assertion and further, the
Commission’s action in 2012 constituted a final award. No action was taken by appellee to
appeal or have the Commission reconsider its decision. Thus, under the circumstances of
this case, four years after the final award, the Commission’s authority was limited to
readjustment of a future rate of compensation upon a worsening or diminution of condition.
Appellant argues that appellee’s filing of a “Request for Document Correction” was
improper because that form “can only be used when the parties agree that a Commission
10
form needs to be corrected” and the County was not notified about the filing in the present
case. Thus, they did not consent. Appellee admits he failed to adhere to COMAR
14.09.03.13(a), which states “[a] party seeking modification of a prior finding or order shall
file the form captioned Motion for Modification and simultaneously file an Issues form
identifying the issue to be resolved.” He concedes that he did not file a “Motion for
Modification” form and the County did not give its consent. He argues that “[w]hen justice
so requires, the Commission may waive strict compliance with these regulations.”
COMAR 14.09.01.06. The record in this case, however, is devoid of any indication that
the Commission waived strict compliance. We hold that even if it did waive strict
compliance, the Commission did not have the statutory authority to modify or readjust the
award retroactively.
Finally, appellant argues the Commission’s ruling was erroneous because “it
extended the statute of limitations for another five years.” Appellee avers the Commission
“did not circumvent the statute of limitations” because he filed for a modification within
five years of his last payment. We agree with appellant. The Commission’s actions
impermissibly extended the five-year time limit, and thus, exceeded its statutory authority.
See Seal v. Giant Food, Inc., 116 Md. App. 87, 96 (1997).
JUDGMENT OF THE CIRCUIT COURT FOR
MONTGOMERY COUNTY REVERSED AND
REMANDED TO THAT COURT. THE
CIRCUIT COURT IS DIRECTED TO ENTER
AN ORDER REMANDING TO THE
WORKERS’ COMPENSATION COMMISSION
TO STRIKE ITS 3/25/16 AWARD. COSTS TO
BE PAID BY APPELLEE.
11