Brunson v. University of Maryland Medical System Corp.

GRAEFF, J. This appeal involves the right to attorney’s fees in a worker’s compensation case that the parties have described as having a “torrid history.” Specifically, the case involves the right to attorney’s fees when: (1) an initial award for temporary total disability is rescinded; and (2) a subsequent award for permanent partial disability results in no compensation to the claimant because the award is offset by a credit for payment of the invalidated initial award. This appeal is brought by Aleathea Brunson, appellant, who injured her back during her employment with the University of Maryland Medical System Corporation (“UMMSC”), one of the appellees. She appeals the order of the Circuit Court for Baltimore City, which affirmed the decision of the Maryland Workers’ Compensation Commission (the “Commission”), also an appellee, denying her request for attorney’s fees. On appeal, Ms. Brunson raises three questions for our review, 1 which we have rephrased as follows: 1.

Did the Commission err in declining to enforce an award of attorney’s fees when the decisions granting the award subsequently were rescinded and annulled? 2. Did the Commission err in declining to award penalties and fees for failure to pay the attorney’s fees upon conclusion of the appeal to circuit court? ⁵⁸⁶ 3. Did the Commission err when it failed to award counsel fees, reimbursement for incurred expenses, and reimbursement for a doctor fee pursuant to the award of compensation for permanent partial disability? For the reasons that follow, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND On September 9, 2010, Ms. Brunson sustained a “lifting injury” to her back while working as a patient care technician for UMMSC. Ms. Brunson filed a claim with the Commission, and on April 8, 2011, the Commission held a hearing on the issues of temporary total disability, authorization for medication treatment, and payment of medical expenses. The Commission found that, as a result of Ms. Brunson’s accidental injury, she was temporarily totally disabled from December 30, 2010, to the time of the hearing and continuing. It authorized physical therapy that had been performed, as well as a new course of physical therapy, as recommended by Ms. Brunson’s doctor.

It also authorized an EMG and an MRI to Ms. Brunson’s back, and it authorized payment of outstanding medical bills. On May 3, 2011, the Commission ordered that UMMSC, a self-insured employer, pay Ms. Brunson temporary total disability at the rate of $432 per week, “beginning December 30, 2010 to present and continuing, so long as [she] remained temporarily totally disabled as a result of [the] claim.” It further ordered that, “from the compensation herein awarded, James A. Lanier, attorney for claimant, is allowed a lump sum counsel fee in the amount of $756.00.” Pursuant to the order, temporary total disability benefits were paid through July 13, 2011. On November 9, 2011, the Commission held another hearing on Ms. Brunson’s claim regarding temporary total disability, authorization for medical treatment, payment of outstanding medical expenses, and attorney’s fees and penalties. On November 28, 2011, the Commission ordered, inter alia, that ⁵⁸⁷ UMMSC pay additional compensation for temporary total disability at the rate of $432 per week, from “July 14, 2011 to present and continuing, so long as [she] remained temporarily totally disabled as a result of [the] claim.” It further ordered that, “from the compensation herein awarded, James A. Lanier, attorney for claimant, is allowed a lump sum counsel fee in the amount of $842.40.” Pending appeal of the Commission’s orders, UMMSC paid Ms. Brunson weekly temporary total disability benefits at the rate of $432 per week, for a total of $30,554.74, for the period of December 30, 2010, through June 2, 2012.

The payment of the attorney’s fees awards was stayed during the pendency of the appeals, and the total awarded amount of $1,598.40 was held in escrow pending a final determination. On December 12 and 13, 2012, the appeals brought by UMMSC were tried together before a jury in the Circuit Court for Baltimore County. The jury partially reversed the Commission’s May 3, 2011, and November 28, 2011, decisions. It found that Ms. Brunson “was not temporarily and totally disabled from December 20, 2010 forward,” and Ms. Brunson’s “EMG, MRI of the back and pain management were not reasonable, necessary and causally related to the accidental injury of September 9, 2010.” The jury affirmed the Commission’s decision of May 3, 2011, that physical therapy was “reasonable, necessary and causally related to the accidental injury.” On December 14, 2012, based on the jury’s verdict, the Circuit Court for Baltimore County ordered that the Commission’s decisions of May 3, 2011, and November 28, 2011, “be rescinded and annulled,” and that the case be remanded to the Commission “for the entry of new Orders consistent with the jury’s verdict.” On March 5, 2013, in accordance with the circuit court’s order, the Commission ordered that the May 3, 2011, and November 28, 2011, Commission orders “are hereby RESCINDED and ANNULLED.” It ordered that the matter would be reset for hearing only upon request. ⁵⁸⁸ On May 15, 2013, the Commission held another hearing to address Ms. Brunson’s claim of permanent partial disability as a result of the accidental injury, as well as attorney’s fees.

Counsel for UMMSC asserted that it was seeking a $30,554.74 credit against any future benefits awarded, based on the temporary total disability benefits that had been paid pursuant to an award that subsequently was rescinded and annulled. With respect to attorney’s fees, counsel for Ms. Brunson argued that he was entitled to the $1,598.40 attorney’s fees awarded in the prior two awards, asserting that the “lien of the attorney’s fees still survives,” even though the prior orders were rescinded. He argued that, once attorney’s fees are “determined by the Commission, it is a lien. That lien is not exhausted at all, ever, until paid to the attorney.

The lien attaches when awarded and it is not abated by appeal.” He also asserted that, because UMMSC had not paid him the attorney’s fees it owed him, the Commission could, in its discretion, award “fees and penalties on the nonpayment of the attorney fees.” Counsel further argued that, if the court found permanent partial disability and awarded attorney’s fees, that would be a lien that would attach “before any credit that would be paid or taken by the employer.” Mr. Lanier did not argue that the Commission should award doctor’s fees and expenses. On May 21, 2013, the Commission issued the following order: 1. TEMPORARY TOTAL DISABILITY: The employer and insurer are entitled to a credit for overpayment of temporary total disability in the amount of $30,554.74.... 2. PERMANENT PARTIAL DISABILITY: Under “Other Cases” amounting to .15% industrial loss of use of the body, 10% is reasonably attributable to the accidental injury to the back and 5% is due to preexisting conditions to the back; at the rate of $142.00, payable weekly, beginning at the end of compensation previously paid, for a period of 50 weeks, subject to a credit for overpay ⁵⁸⁹ ment of temporary total disability in the amount of $30,554.74 (permanency total is $7,100.00, leaving a credit balance of $23,454.74). 3.

ATTORNEY FEES: The Orders of this Commission dated May 3, 2011 and November 28, 2011 were rescinded and annulled per the Order dated March 5, 2013; therefore, the payment of attorney fees previously awarded totaling $1,598.00 is denied. The Commission did not award any penalties, and it stated that “[n]o attorney fees or reimbursement of expenses are allowed under this Order.” On June 3, 2013, Ms. Brunson, by counsel, petitioned for judicial review in the Circuit Court for Baltimore City. On December 10, 2013, the court held a hearing. Counsel for Ms. Brunson asked the court to remand the case to the Commission to enforce the payment of the previously awarded $1,598.40 in attorney’s fees and to determine whether attorney’s fees should be awarded on the $7,100 award for permanent partial disability compensation. 2 He also indicated that he had raised a third issue in his petition relating to penalties, but he acknowledged that, “obviously, if there’s no fee to be paid, there’s no penalty.” Counsel for UMMSC and the Commission argued that the court should affirm the Commission’s decision with respect to the $1,598.40 initial award because the initial orders were rescinded and annulled, and therefore, the attorney’s fees award was “completely vacated.” With respect to any fee for the permanency award, counsel argued that the statutory scheme permitted a percentage of the “amount due,” and because the credit resulted in no “amount due” to the claim ⁵⁹⁰ ant, the Commission was legally correct in finding that no fee applied.

On December 16, 2013, the court issued an order affirming the Commission’s decision regarding attorney’s fees, finding as follows: FOUND that the decisions of the Workers’ Compensation Commission ... dated May 3, 2011, and November 28, 2011, were voided by the Remand Order of the Circuit Court for Baltimore County dated December 14, 2012; and it is further FOUND that on May 21, 2013, the [Commission] correctly decided that the lien created pursuant to [Md. Code (2008 Repl. Vol.) § 9-731 of the Labor & Employment Article (“LE”)] for attorney’s fees of $1,598.00 was extinguished by the Remand Order of the Circuit Court for Baltimore County dated December 14, 2012; and it is further FOUND that on May 21, 2013, the [Commission] ordered an award of $7,100 for permanent partial disability to the Petitioner and such award was completely offset by a credit for prior overpayment of an award for temporary total disability; and it is further FOUND that on May 21, 2013, the [Commission] correctly disapproved attorney’s fees in conjunction with the award for permanent partial disability since such award was completely offset by the aforementioned credit, leaving no fund from which to satisfy any claim for fees. (Footnotes omitted). This appeal followed.

DISCUSSION On appeal, counsel for Ms. Brunson continues with his assertion that the Commission erred in failing to order payment of attorney’s fees. In support, he makes three contentions. First, he asserts that the Commission erred in “failing to enforce the initial attorney’s fees ordered pursuant to the initial orders,” even though these orders subsequently were rescinded and annulled. Second, he contends that the Commission erred in declining to award penalties and fees for ⁵⁹¹ failure to pay the attorney’s fees upon conclusion of the appeal to the circuit court.

Third, he argues that the Commission erred when it failed to award counsel fees, reimbursement for incurred expenses, and reimbursement for a doctor fee pursuant to the award of compensation for permanent partial disability. As explained below, we disagree. I. Standard of Review In workers’ compensation cases, attorneys “may not charge or collect a fee for ... legal services in connection with a claim” unless the fee is approved by the Commission. LE § 9-731(a)(l)(i).

See also Mayor & City Council of Baltimore v. Bowen, 54 Md.App. 375, 383 , 458 A.2d 1242 (1983) (“[T]he setting of attorneys’ fees [is] within the control of the ... Commission.”). Because “the Commission is vested with the authority to set counsel fees, ‘it is not the province of the courts to constrain the legitimate exercise of the [C]ommission’s discretion.’ ” Rogers v. Welsh, 113 Md.App. 142, 144 , 686 A.2d 1107 (1996) (quoting Edmond v. Ten Trex Enters., Inc., 83 Md.App. 573, 577-78 , 575 A.2d 1267 (1990)). Here, however, the issue is not the amount of the fee awarded, but rather, whether any fee was warranted under the circumstances of the case.

Thus, we must determine, as a matter of law, whether the Commission properly determined that Ms. Brunson’s attorney was not entitled to attorney’s fees. In this regard, however, we note that “Reviewing courts should give special deference to an agency’s interpretation of its own regulations because the agency is best able to discern its intent in promulgating those regulations.” Kim v. Md. State Bd. of Physicians, 196 Md.App. 362, 372 , 9 A.3d 534 (2010), aff'd, 423 Md. 523 , 32 A.3d 30 (2011).

II

Attorney’s Fees in Worker’s Compensation Cases In Engel & Engel, P.A. v. Ingerman, 353 Md. 43 , 724 A.2d 645 (1999), the Court of Appeals explained that the worker’s compensation statutory scheme was ⁵⁹² “designed to protect workers and their families from hardships inflicted by work-related injuries. More particularly, it is designed to provide workers with compensation for loss of earning capacity resulting from accidental injury, disease or death arising out of and in the course of employment, to provide vocational rehabilitation, and to provide adequate medical services.” Id. at 51 , 724 A.2d 645 (quoting Queen v. Agger, 287 Md. 342, 343 , 412 A.2d 733 (1980)). In light of that goal, the legislature sought to regulate attorney’s fees, noting that the party seeking compensation — the claimant — is responsible for his or her own attorney’s fees. Id.

Because worker’s compensation law is designed to provide financial assistance to the injured worker in lieu of lost wages, “the legislature recognized that the purpose of the law would be subverted if a worker’s recovery,” which did not include “ ‘any padding to take care of legal and other expenses incurred in obtaining the award,’ ” were dissipated as a result of excessive fees incurred in recovering the compensation. Id. at 51-52, 724 A.2d 645 (quoting 3 Arthur Larson, Larson’s Workmen’s Compensation Law § 83.11, at 15-1271 (1989)). Consequently, the legislature authorized the Commission to adopt appropriate safeguards, thereby giving the Commission the power to regulate “ ‘when and how much remuneration an attorney who represents a claimant ... is to receive from the employee for legal services rendered to him.’ ” Id. at 52, 724 A.2d 645 (quoting Chanticleer Skyline Rm. v. Greer, 271 Md. 693, 699-700 , 319 A.2d 802 (1974)). The Court also recognized that, although “claimants must be protected from exorbitant legal fees, there also exists a need to ensure that workers are able to obtain competent counsel to pursue their claims.” Id. at 53, 724 A.2d 645 .

Therefore, although fees “should not be so large as to be excessive ... they also should not be so low as to make representing claimants undesirable to the legal practitioner.” Id. To balance the need to protect claimants from excessive legal fees against the need of workers to retain competent counsel, the legislature delegated to the Commission, an ad ⁵⁹³ ministrative agency with special expertise in worker’s compensation law, the authority over attorney’s fees in worker’s compensation cases, including the power to promulgate rules governing such fees. Id. at 53-54 , 724 A.2d 645 . The issue of attorney’s fees is addressed in LE § 9-731, as follows: (a)(1) Unless approved by the Commission, a person may not charge or collect a fee for: (i) legal services in connection with a claim under this title; (2) When the Commission approves a fee, the fee is a lien on the compensation awarded.

(3) Notwithstanding paragraph (2) of this subsection, a fee shall be paid from an award of compensation only in the manner set by the Commission. The Code of Maryland Regulations (“COMAR”) 14.09.04.03 sets forth a schedule of fees, establishing maximum amounts for attorney’s fees based on the extent of the disability and the amount of the award. For example, an attorney’s fee for a final award of temporary total disability may not exceed “10 percent of the compensation that has accrued as of the date of the award.” COMAR 14.09.04.03(B)(5). With respect to a final award of compensation for permanent partial disability: [T]he Commission may approve an attorney’s fee in a total amount not exceeding 20 times the State average weekly wage and computed as follows: (i) Up to 20 percent of the amount due for the first 75 weeks of an award of compensation awarded; (ii) Up to 15 percent of the amount due for the next 120 weeks of an award of compensation; and (iii) Up to 10 percent of the amount due for an award of compensation in excess of 195 weeks.

COMAR 14.09.04.03(B)(3)(a). Relevant to this case, we note that attorney’s fees are available only for a “final award.” The regulations define a “final award” as