Montgomery County v. Ward

McAULIFFE, Judge,

dissenting.

I am of the opinion that the Workers’ Compensation Commission was “palpably without jurisdiction” when, by its order of 16 November 1989, it attempted to take action with respect *530to a case that had become final and had passed completely beyond the powers granted to the Commission. The Workers’ Compensation Commission is a creature of statute; it possesses only the powers given it by statute or rule. The claim at issue was clearly within the subject matter jurisdiction of the Commission—indeed, the Commission had exercised its jurisdiction over the claim, denied it, and denied a motion for rehearing. No appeal was taken. Instead, more than 30 days after the Commission had disallowed the claim, and some 21 days after the Commission had denied the motion for rehearing, the claimant’s attorney sent the Commission a letter requesting that the Commission resuscitate the claim pursuant to a power allegedly existing under what was then § 40C of the Workers’ Compensation law.

In the view taken by the claimant, Mr. Ward, it would not matter whether 30 days or 30 years had passed following the denial of the claim; the claimant could continue to 'advance new theories and proffer new witnesses ad infinitum, and if the interest of a commissioner were sparked, the claim could be resurrected like Lazarus. I do not believe that the legislature, by the enactment of Article 101, § 40C, now § 9-736(b) of the Labor and Employment Article, intended to grant the Commission such power. In the discussion that follows, I shall refer to the current codification of the applicable sections of the Workers’- Compensation law.

If a party is aggrieved by the Commission’s decision on a claim, the party may either move for a rehearing before the Commission under § 9-726 or file a petition for judicial review of the agency’s action under § 9-737. The motion for rehearing must be based on grounds of newly discovered evidence or error of law, § 9—726(d)(3), and must be filed within fifteen days of the Commission’s decision, § 9-726(a).1 The petition *531for judicial review generally must be filed within thirty days of the Commission’s decision. Maryland Rule 7-203. If the party files a timely motion for rehearing, the time for filing a petition for judicial review is stayed until the motion is denied or, if the motion is granted, until the Commission issues its new order. § 9—726(f).

The provision for rehearing is designed to assure “that the Commission has a reasonable opportunity to give full consideration to timely and substantive allegations that question the propriety of its orders before a controversy moves on to the judicial level.” Alitalia v. Tornillo, 320 Md. 192, 197, 577 A.2d 34, 37 (1990). A timely filed motion for rehearing operates as a stay of the time for filing an action for judicial review, in order to further the policy of reducing the number of judicial review actions. As this Court explained in Stinnett v. Cort Furniture, 315 Md. 448, 454, 554 A.2d 1226, 1228 (1989), a party who moves for rehearing “need not be concerned with an appeal until after the disposition of the motion. Success on the motion, of course, would obviate the need for any appeal.”

The Workers’ Compensation Act, however, makes no provision for a second motion for rehearing. Once the motion for rehearing is ruled upon, the time for filing a petition for judicial review begins to run. “[T]he time within which an appeal may be taken from the decision [on the motion for rehearing] starts on ... the date on which the Commission denies the motion for a rehearing.... ” § 9—726(f)(1). The statute contemplates that once a motion for rehearing is denied, an aggrieved party should petition for judicial review if further proceedings are desired. Consequently, the Commission in this case did not have the option to consider a second motion for rehearing.

Mr. Ward argues, however, that he did not make a second motion for rehearing. He contends that he invoked the statutory provision granting continuing authority to the Commission and that he asked the Commission to modify its October 12, 1988, order under such continuing authority. *532Section 9-736, providing for the continuing authority of the Commission over orders, 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.
(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 last compensation payment.
(c) Estoppel; fraud.—(1) If it is established that a party failed to file- an application for modification of an award because of fraud or facts and circumstances amounting to an estoppel, the party shall apply for modification of an award within 1 year after:
(1) the date of discovery of the fraud; or
(ii) the date when the facts and circumstances amounting to an estoppel ceased to operate.
(2) Failure to file an application for modification in accordance with paragraph (1) of this subsection bars modification under this title.

The employer contends that § 9-736(b) does not apply to claims which have been entirely denied but, instead, applies only to allow “reopening of a previously-found compensable claim____” (Reply Brief at 4). In support of this contention, the employer notes that subsection (b)(3) expressly provides *533that a claimant must apply for a modification of an award within five years of the last payment of compensation. In response, Mr. Ward argues that subsection (b)(3) does not limit the orders which may be modified under (b)(1) or (b)(2). He contends that the subsections must be read as separate provisions. The five-year time limit by its terms applies only to modification of awards; therefore, Mr. Ward asserts, there is no time limit on the Commission’s continuing authority over modifications of orders other than awards.

I disagree with Mr. Ward’s interpretation of the statute. Although the Commission’s continuing authority under § 9-736(b) may well be broad, I do not believe that it extends to the situation presented by this case.

The language of § 9-736 as a whole strongly suggests that the section is applicable only where there has been a prior award for disability. Subsection (a) deals with the Commission’s authority if there is an aggravation, diminution, or termination of disability. Subsection (b) grants to the Commission authority to modify an “award” within five years after the last payment of compensation. Subsection (c) relates to the failure to apply for modification of an award. The entire section is designed to enable the Commission to address a claimant’s changing medical condition or other circumstances affecting a prior award. When a claimant, already determined to be disabled to some extent, experiences a change in condition, the Commission may change the compensation during the period of the payments. The Commission retains the power to change the award even after the compensation payments have ended, as long as application for the modification is made within the five year limitations period. § 9-736(b)(3). It would be unreasonable, however, to construe the Commission’s continuing authority to be of longer duration in cases where the claimant has been determined not to be disabled than in cases where there has been a determination of disability and an award of compensation.

Moreover, under Mr. Ward’s construction of § 9-736, there would be little reason for the fifteen-day limitation in § 9-*534726(a) for a party to file a motion for rehearing. Mr. Ward’s view of the statute would render § 9-726 largely nugatory. In cases where an award has been made, § 9—736(b)(3) gives the Commission continuing authority over the claim for five years after the last payment of compensation. In all other cases, under Mr. Ward’s construction of the statute, the Commission would have continuing authority over the claim forever. A dissatisfied party could simply request that the Commission reopen the case, whether or not there had been a timely motion for rehearing. The General Assembly certainly did not intend to expose parties to this potential for endless litigation. Cf. Stinnett v. Cort Furniture, supra, 315 Md. at 456-457, 554 A.2d at 1229-1230; Ratcliffe v. Clarke’s Red Barn, 64 Md.App. 293, 301, 494 A.2d 983, 987 (1985) (The Commission’s continuing authority over claims does not allow it to reopen a case in order to restart the running of the time for filing an action for judicial review).

In cases where the Commission has denied the claim, where there has never been an award of any kind, and where the Commission has denied a motion for rehearing under § 9-726, the Commission does not have authority by virtue of § 9-736 to modify a previous denial of a motion for rehearing.

Under these particular circumstances, the attempt by the Commission to exercise power when it clearly had none represents an excess of its limited jurisdiction that should be subject to immediate appeal. I would reverse the judgment of the Court of Special Appeals and direct that the Commission’s order of 16 November 1989 be vacated.

MURPHY, C.J., and CHASANOW, J., join in this dissent.

. By regulation, COMAR 14.09.01.10 (in effect at the time this case arose), now COMAR 14.09.01.14D, the motion for rehearing must contain specific information in support of the motion. If the motion is based on an allegation of newly discovered evidence, it must describe the evidence specifically and set forth the reasons for the delay in discovering the evidence.