Chaney Enterprises Ltd. Partnership v. Windsor

⁴ HOLLANDER, Judge. In this worker’s compensation case, we must determine whether the Workers’ Compensation Commission (the “WCC” or the “Commission”) erred in finding that Chaney Enterprises Limited Partnership (“Chaney”), appellant, was the employer of appellee Bernard Windsor, Jr. in May 1995, when Windsor was severely injured while on “loan” to Genstar Stone Products Company, now known as Redland Genstar, Inc. (“Genstar”), appellee. Chaney and its insurer never contested Windsor’s workers’ compensation claim. Nevertheless, in late 2000, Chaney filed a civil suit against Genstar, contending that Genstar was Windsor’s special employer when the accident occurred, and therefore Chaney was entitled to indemnification for the workers’ compensation benefits it had paid.

The Circuit Court for Prince George’s County stayed the suit, so that Chaney could present the issue to the WCC. Accordingly, Chaney filed “issues” with the Commission, asking it to determine whether, at the time of the accident, Genstar was Windsor’s “special employer” or, alternatively, his “joint employer.” The WCC determined that, based on “estoppel,” Chaney was the correct employer. Thereafter, Chaney sought judicial review in the circuit court, which affirmed. This appeal followed, in which Chaney poses the following two questions: I. Did the circuit court err in not sending the case back to the Workers’ Compensation Commission for proper factual findings?

II

Did the circuit court err in affirming the decision of the Workers’ Compensation Commission finding estoppel and/or waiver without any necessary factual support? For the reasons that follow, we shall affirm. FACTUAL AND PROCEDURAL SUMMARY The WCC held an evidentiary hearing on December 3, 2001. Among other things, the parties submitted numerous exhibits, including the deposition testimony of Windsor; Rick Sheetz, a Genstar supervisor; Jim Talbott, a Chaney supervisor; Ken ⁵ neth Gerrity, a former risk manager for Genstar; and Mary Ann Craze Reuschling, Chaney’s Safety Director.

For approximately twenty-four years, Windsor worked for Chaney as a heavy equipment operator. At the time, Windsor earned an hourly wage of $12.65. Liberty Mutual Insurance Company (“Liberty Mutual” or the “Insurer”) provided worker’s compensation insurance coverage to Chaney, but is not a party to this appeal. Genstar was located adjacent to Chaney’s premises.

On May 22, 1995, Rick Sheetz, a Genstar supervisor, asked Jim Talbott, a Chaney supervisor, whether Chaney would make a heavy equipment operator available to Genstar “for a few days.” Chaney verbally agreed to make Windsor available to Genstar. In return, Genstar agreed to pay Chaney $25 per hour. As it turned out, Genstar never made any payments to Chaney. For three days in May 1995, Windsor punched in at Chaney’s facility, then reported to work at Genstar, and later punched out at Chaney.

During that period, Windsor informed Talbott that the conditions at Genstar were not safe, because the dry screen machinery with which he was working lacked certain safety equipment and was in disrepair. Sam Chase, the Genstar plant manager, was Windsor’s direct supervisor with regard to the operation of the dry screen machine. 1 Windsor’s fourth day of work at Genstar was an unfortunate one. On that day, May 25, 1995, a root or stick became stuck in the conveyor belt of the dry screen equipment. As Windsor climbed down from the operator’s perch to clear the belt, he was “dragged” into the machine, and suffered very serious injuries.

The injuries included a broken bone above the left wrist and elbow, burns on his left side, a bruised chest, and a head laceration that required 40 stitches. After a number of surgeries, Windsor was determined to have a 70% loss of function to his left arm. ⁶ On or about May 26, 1995, Chaney submitted to the Commission a WCC form reporting Windsor’s injury. The form was signed by Mary Ann Craze (now Reuschling), Chaney’s Safety Director. Among other things, in the spaces provided for the name of the employer, appellant wrote “Chaney Enterprises, L.P.” The form also asked if the injury occurred “on [the] employer’s premises?” Chaney responded by placing an “X” next to the pre-printed word, “No”.

Immediately next to that response, in the same box, Chaney typed the following word: “SUBROGATION.” In response to a question about where the accident occurred, Chaney wrote “GENSTAR STONE PRODUCTS,” along with Genstar’s address. In answer to a question about the equipment that the employee was using when the injury occurred, Chaney typed: “POWER SCREEN AT GENSTAR’S PLANT — TAIL PULLEY WAS NOT GUARDED.” In answer to a question about the sequence of events, Chaney typed: “EMPLOYEE WAS WORKING AROUND TAIL PULLY OF POWER SCREEN, GOT ARM CAUGHT IN BELT CAUSING MULTIPLE INJURIES TO HEAD, CHEST, & L. ARM.” Chaney also identified two witnesses, both of whom were noted as employees of Genstar. Through Liberty Mutual, Chaney promptly began making worker’s compensation payments to and on behalf of Windsor. Payments from Chaney or its Insurer continued for five years, without objection from Chaney or the Insurer.

On or about June 12, 1995, Windsor submitted an “Employee’s Claim” with the Commission, in which he identified “Chaney Enterprises, Inc.” as his employer. The form contains the following pre-printed text in a box at the bottom of the page: ATTENTION: FOR EMPLOYER AND INSURER INFORMATION ONLY Consideration Date: Unless the compensability of this claim is contested by the filing of issues with the Commission on ⁷ or before an appropriate award will be passed. [2] Between the period June 13, 1995, and July 17, 1995, Chaney did not file any issues with the Commission, nor did it contest the compensability of Windsor’s claim. Moreover, Chaney never requested a hearing regarding Windsor’s claim, and no hearing was held. On July 18, 1995, the Commission issued an Award of Compensation, ordering Chaney and the Insurer to pay temporary total disability benefits to Windsor of $525 per week, as of May 29, 1995.

Neither Chaney nor Liberty Mutual appealed from that order. Almost three years after the accident, on May 8, 1998, Bernard and Ruth Windsor, together with Liberty Mutual, filed a tort suit against Genstar. 3 Alleging that Genstar was negligent in regard to the condition of its equipment, the Windsors sought more than $3,000,000 in damages, while Liberty Mutual sought to recover $300,000 in compensation benefits paid to Windsor or on his behalf. The Insurer’s claim was based on Maryland Code, § 9-902 of the Labor and Employment Article. Notably, the Insurer and the Windsors averred that Windsor was “employed by Chaney Enterprises at the time of the accident as a heavy equipment operator ....”, but was working at Genstar’s premises when the accident occurred.

In addition, the Insurer asserted that it held a statutory lien for workers’ compensation benefits paid to and for the benefit of ⁸ Windsor, and claimed it was “entitled to recover those benefits against the negligent party, Genstar,” pursuant to § 9-102 of the Labor and Employment Article. In its Answer, Genstar did not deny liability in tort on the ground that it was Windsor’s employer at the time of the accident. 4 Rather, Genstar asserted that it was not negligent and that, in any event, Windsor was contributorily negligent. Approximately five and a half years after Windsor’s accident, on November 15, 2000, Chaney filed a two-count suit against Genstar, alleging, inter alia, that the parties had entered into an oral agreement in which Chaney assented “to lend” Windsor to Genstar and, at the time of the accident, Genstar was Windsor’s “special employer,” with “exclusive control” over Windsor. 5 Further, Chaney alleged that Gens-tar breached its duty to Windsor “to provide a safe work environment.” Count I was titled “Indemnity.” Chaney claimed that Genstar was liable to Chaney “for indemnification for any and all worker’s compensation claims paid for by [Chaney] to Bernard Windsor.” In Count II, titled “Breach of Contract,” Chaney alleged that, “under the implied terms” of the parties’ oral agreement, Genstar was obligated to provide workers’ compensation benefits. In its suit, Chaney did not cite § 9-902 of the Labor and Employment Article.

Genstar moved for summary judgment in Chaney’s civil suit. Relying on Temporary Staffing, Inc. v. J.J. Haines & Co., Inc., 362 Md. 388 , 765 A.2d 602 (2001), Genstar argued that the WCC was the appropriate forum to determine wheth ⁹ er Genstar was Windsor’s employer. Agreeing with Genstar, the circuit court stayed Chaney’s case to permit Chaney to pursue the matter with the Commission. In addition, the court stayed the suit filed by Liberty Mutual and the Windsors against Genstar.

Accordingly, on May 24, 2001, a full six years after Windsor’s injury, Chaney submitted WCC Form H24R, titled “Issues,” in which it asked: “Is Redland Genstar, Inc., the Special Employer of Claimant and primarily responsible for payments on this claim, Chaney being the General Employer?” Chaney also filed WCC Form H25R with the Commission, entitled “Request For Action on Filed Issues,” in which it sought to implead Genstar as a party. On December 3, 2001, the Commission held a hearing, at which Chaney’s counsel admitted that Chaney was Windsor’s general employer. But, it claimed that Genstar was the special or dual employer. The following exchange is pertinent: [COMMISSION]: You’re raising statute of limitations? [WINDSOR’S ATTORNEY]: That’s correct. [COMMISSION]: Or estoppel at least; right? [WINDSOR’S ATTORNEY]: Yes. ❖ * * [COMMISSION]: I don’t think it’s a limitations argument, I think it’s an estoppel argument.... * * * [CHANEY’S ATTORNEY]: ...

Chaney’s claim against Redland Genstar is based on a right of indemnity. And a right of indemnity does not accrue until such time as there has been payment made or until the obligation has been paid in full. Mr. Windsor’s case is still open. Chaney hasn’t finished paying by any stretch of the imagination, at least if [Windsor’s attorney] continues to have his way.

So arguably at worst, Chaney is faced with a situation where you go back three years and anything that’s been paid for ¹⁰ the past three years they’ve got a right of indemnity back over against Redland Genstar. But it would be our position under the statute of limitations cases that we’re entitled to go all the way back until such time as the obligation to Mr. Windsor is terminated. [GENSTAR’S ATTORNEY]: ... I do have [:Temporary Staffing v. J.J. Haines.] And I believe that, as a matter of law, dictates that Chaney has sat on its rights too long. At the end of the hearing, the Commission said: It sounds to me like there’s no real disagreement as to the facts in this case, at least on the issues that we need to be concerned about, that is the time that [Genstar]’s being brought into the case, the posture of Mr. Windsor and what he was doing at that particular time.

There seems to be the one fact in contention is the right of control, and the allegation is that he can be taken off the job at any time. The Commission then asked the attorneys to submit additional materials, stating: [W]e’ll frame the issues as correct employer, dual employment, statute of limitations in terms of bringing in an additional party, estoppel in terms of bringing in the additional party at this juncture, and indemnification. In its legal memorandum, submitted on January 3, 2001, Chaney argued, inter alia, that, “should the Commission feel that Genstar was not Windsor’s employer, Genstar is at least culpable as a dual employer.” Moreover, Chaney maintained that its claim against Genstar for indemnification was not barred by the statute of limitations, because the payments are ongoing, and the claim “accrues at the time of payment and not before.” On January 9, 2002, the Commission ruled that “the employer Chaney Enterprises is estopped from impleading Redland Genstar after six years; and ... that Chaney Enterprises is the correct employer; based on the doctrine of estoppel.” Further, the Commission issued an Order on March 18, 2002, stating: ¹¹ ORDERED that the Employer Chaney Enterprises is es-topped from impleading Redland Genstar after six years; and ORDERED that Chaney Enterprises is the correct employer; based on the doctrine of estoppel; and ORDERED that the claim for indemnification is NOT bared [sic] by the statute of limitations; and ORDERED NO on the issue of indemnification; and further ORDERED that the issue of dual employment is hereby moot. Chaney sought judicial review of the Commission’s Order in the circuit court.

Following a hearing on March 20, 2003, the court issued an oral ruling on May 2, 2003, in which it affirmed. The court noted that, by consent of the parties, it had “the same record that was presented to the Commission for consideration.” After considering various exhibits, such as Chaney’s First Report of Injury, the WCC’s Award, and Windsor’s Answers to Interrogatories, as well as the depositions submitted by the parties, the court found: One, that Mr. Windsor was an employee of Chaney in May of 1995. Two, that he agreed to do some work for Genstar at the request of the supervisor for several days in May of 1995. Three, he began doing work for Genstar on May 22, 1995.

Four, that he checked in each morning at Chaney before going across the yard to work for Genstar. Five, his immediate contact person at Genstar was Mr. Sam Chase, who is now deceased. Six, on May 25th Mr. Windsor was seriously injured while operating equipment on the job for Genstar. Seven, that the equipment he was operating belonged to Genstar.

Eight, a Workers’ Compensation case was filed timely by Mr. Windsor. Chaney is identified as the employer and Liberty as the insurance company. Neither /Chaney nor ¹² Liberty Mutual] ever contested the issue that they were not the correct employer or insurer, or that another employer should also be held responsible. Nine, that on July 18, 1995, the Workers’ Compensation Commission ordered that the employer Chaney and its insurance company to pay compensation to Mr. Windsor and to provide him with medical treatment.

Ten, that on May 24, 2001 Chaney filed contesting issues impleading Genstar. This was filed five years and 364 days after the event. Eleven, the Commission ruled on March 18, 2002 that Chaney is estopped from impleading Redland Genstar after six years; that Chaney is the correct employer, based on the doctrine of estoppel; that the claim for indemnification is not barred by the Statute of Limitations; no on the issue of indemnification. Lastly, that the issue of dual employment is moot.

Twelve, that the six years since the accident Genstar has been bought by another company. Two, that Mr. Chase, Mr. Windsor’s contact at Genstar has died. (Emphasis added). The Court concluded: Chaney has consistently maintained that they were the employer of Windsor throughout the pendency of the Workers’ Compensation proceedings.

There is enough facts in the record to find that estoppel, or in the alternative waiver of the rights by Chaney — waiver of the rights by Chaney for failure to assert their rights timely. After considering all the evidence in this case, and the arguments of counsel, this court is not convinced by a preponderance of the evidence that the decision of the Workers’ Compensation Commission is incorrect. Therefore, the court affirms the decision of the Commission. That is the ruling of this court. ¹³ DISCUSSION I. Chaney acknowledges that, when the accident occurred, it was Windsor’s “general employer.” However, Chaney contends that Genstar was Windsor’s “special employer” at that time, because Chaney had “loaned” Windsor to Genstar; Windsor’s work was for the sole benefit of Genstar; Genstar had control over Windsor; and Windsor agreed to the arrangement.

On that basis, Chaney claims that it is entitled to indemnification from Genstar for the compensation benefits it has paid. Alternatively, Chaney claims that Genstar is liable as a dual or joint employer. It contends that the WCC erred when, on the grounds of estoppel, it determined that Chaney was Windsor’s “correct” employer. We pause to explain the concepts of “general,” “special,” and joint employer in the context of a workers’ compensation case. “A general employer is an employer who transfers an employee to another employer for a limited period.

A special employer is an employer who has borrowed an employee for a limited period and has temporary responsibility and control over the employee’s work.” Temporary Staffing, Inc., 362 Md. at 392 n. 1, 765 A.2d 602 . Moreover, “under certain circumstances, a person performing a given function simultaneously may be the employee of two employers.” Mackall v. Zayre Corp., 293 Md. 221, 229 , 443 A.2d 98 (1982); see Great Atlantic & Pacific Tea, Company, Inc. v. Imbraguglio, 346 Md. 573, 591 , 697 A.2d 885 (1997); Whitehead v. Safway Steel Products, Inc., 304 Md. 67, 79 , 497 A.2d 803 (1985); Automobile Trade Ass’n. v. Harold Folk Enterprises, Inc., 301 Md. 642, 659 , 484 A.2d 612 (1984). “Ordinarily, the existence of the employer/employee relationship is a question reserved for the fact finder.” Imbraguglio, 346 Md. at 590 , 697 A.2d 885 ; see Lovelace v. Anderson, 366 Md. 690, 716 , 785 A.2d 726 (2001). Chaney recognizes that the WCC did not expressly resolve the employer/employee issue. But, it contends that the WCC ¹⁴ implicitly found that Genstar was the special employer of Windsor, because it determined that Chaney was “estopped from impleading ...

Genstar.” Chaney points out that estop-pel is an affirmative defense, and “only comes into play once the party to be estopped has met its burden of proof on the remedy sought to be barred by the doctrine.” Therefore, Chaney insists that the WCC must have first concluded that Genstar was the special employer, or else it would not have found it necessary to reach the estoppel issue. Next, Chaney attacks the Commission’s estoppel ruling, asserting that there “is no factual premise in the record to support any type of estoppel defense.... ” In particular, Chaney observes that because it never suggested in any prior legal proceeding that Genstar was not the special employer, the doctrine of judicial estoppel is inapplicable here. Similarly, Chaney claims that equitable estoppel does not apply, because Genstar took no action in reliance on any action by Chaney. And, Chaney claims that the doctrine of collateral estoppel does not govern, because Genstar was not a party to any litigation regarding Windsor’s injury.

To the contrary, Chaney maintains that the WCC previously considered whether Chaney was Windsor’s general employer, but not whether Genstar was Windsor’s special employer. If the estoppel ruling was erroneous, we are left, says Chaney, with the Commission’s implied ruling that Genstar was Windsor’s special employer. According to Chaney, that ruling is now “the law of the case,” and we should uphold it. Alternatively, Chaney suggests that “[t]he meaning of the Commission’s order and the resulting Circuit Court appellate decision in that regard is in dispute.” It complains, therefore, that the Commission erred in failing to resolve the issue of Genstar’s status as an employer, as that was the precise reason for which Chaney filed issues with the WCC.

Moreover, Chaney contends that such a determination is “necessary” with respect to its civil suit against Genstar, which has been stayed pending the Commission’s resolution of the employer issue. Accordingly, it maintains that the circuit court ¹⁵ should have remanded the matter to the Commission for a determination of Genstar’s status. In addition, Chaney notes that “no one appealed the decision of the Workers’ Compensation Commission that Chaney’s claim for indemnification is NOT bar[r]ed by the statute of limitations.” Accordingly, Chaney suggests that, if its indemnification claim is not barred by limitations, then it is entitled to have the WCC resolve the employer issue. While recognizing that, as to Windsor’s compensation claim, there has been “a final judgment on the merits in a prior litigation,” Chaney asserts that there is no basis to conclude that it ever “intentionally relinquished its rights to have Genstar declared a special employer.” Rather, Chaney insists that “Genstar’s status as an employer was not in issue originally before the Commission,” and the only “relevant issue before the Commission was the status of Chaney as Windsor’s employer.” In contrast, Chaney notes that “the issue in the subsequent proceeding between Genstar and Chaney involves a breach of contract claim and a claim for indemnity.” In its view, “a determination that Chaney was Windsor’s general employer does not preclude a finding that at the time of the accident, Genstar was Windsor’s special employer,” because those facts and issues were not litigated in the workers’ compensation proceeding.

Genstar counters that, because Chaney failed to appeal the 1995 Commission Order, which determined, in effect, that Chaney was Windsor’s sole employer, Chaney is “estopped from denying responsibility for payment of ... benefits.” Regarding appellant’s assertion that it failed to appeal the WCC’s ruling as to the statute of limitations, Genstar contends that it had “no basis for appeal,” given that it prevailed below. In this regard, Genstar asserts that “it is the ultimate decision of the Commission effectively disposing of the case, not each individual finding, which is the basis for judicial review.” Windsor submits that, “in the context of this appeal,” the issues of waiver and estoppel are “one and the same.” While recognizing that the Commission did not expressly “use the ¹⁶ words ‘waived its right to raise the issue,’ ” Windsor argues that the WCC correctly found, in effect, that Chaney waived its claim against Genstar and was estopped from impleading Genstar.

II

The Maryland Workers’ Compensation Act (the “Act”), codified in Title 9 of the Labor and Employment Article (“L.E.”) of the Maryland Code (1991, 1999 Repl.Vol.), entitles covered employees to recover compensation benefits, without regard to fault, for an occupational disease or an accidental injury that arises out of and in the course of employment. See L.E. §§ 9-101(b), 9-501, 9-502. See Livering v. Richardson’s Restaurant, 374 Md. 566, 573-74 , 823 A.2d 687 (2003); Means v. Baltimore County, 344 Md. 661, 664 , 689 A.2d 1238 (1997); Mayor and City Council of Baltimore v. Johnson, 156 Md. App. 569, 576 , 847 A.2d 1190 (2004). Compensation is made “for the loss of earning capacity resulting from accidental injury, disease, or death occurring during the course of employment.” Philip Electronics North America v. Wright, 348 Md. 209, 215-16 , 703 A.2d 150 (1997); see Ametek v. O’Connor, 364 Md. 143, 154 , 771 A.2d 1072 (2001); DeBusk v. Johns Hopkins Hosp., 342 Md. 432, 437 , 677 A.2d 73 (1996).

The Act constitutes a “ ‘comprehensive scheme to ... provide sure and certain relief for injured [workers], their families and dependents regardless of questions of fault.’ ” Hastings v. Mechalske, 336 Md. 663, 672 , 650 A.2d 274 (1994) (citations omitted); see Breitenbach v. N.B. Handy Co., 366 Md. 467, 474 , 784 A.2d 569 (2001); Waters v. Pleasant Manor Nursing Home, 361 Md. 82, 104 , 760 A.2d 663 (2000). As the Court of Appeals recently reiterated, “[t]he Act essentially is remedial, social legislation designed to protect workers and their families from various hardships that result from employment-related injuries.” Livering, 374 Md. at 574 , 823 A.2d 687 ; see Martin v. Beverage Capital Corp., 353 Md. 388, 398 , 726 A.2d 728 (1999). ¹⁷ Pursuant to L.E. § 9-509(a), compensation under the Act is ordinarily an injured employee’s exclusive remedy with respect to the employer. Imbraguglio, 346 Md. at 578 , 697 A.2d 885 . “Compensation awarded on this fault-free basis under the statutory plan substitutes for an employee’s common law right to bring a fault-based tort suit against an employer for damages resulting from the employee’s injury. ...” DeBusk, 342 Md. at 438 , 677 A.2d 73 ; see Belcher v. T. Rowe Price Foundation, Inc., 329 Md. 709, 736 , 621 A.2d 872 (1993). The “quid pro quo” for compensation to an employee, unrelated to fault, is that employers are “relieved of the prospect of large damage verdicts.” Arthur Larson, Larson’s Workers’ Compensation Law (2000), § 100.01, at 100-2-3 (“Larson’s”); see Imbraguglio, 346 Md. at 578 , 697 A.2d 885 ; Hastings, 336 Md. at 672 , 650 A.2d 274 .

In this way, employers avoid “the disruption of business by burdensome lawsuits.” Central GMC, Inc. v. Lagana, 120 Md.App. 195, 204 , 706 A.2d 639 , cert. granted, 350 Md. 280 , 711 A.2d 871 , appeal dismissed, 351 Md. 160 , 717 A.2d 384 (1998). Although the Act is “remedial in nature,” and “ ‘should be construed as liberally in favor of injured employees as its provisions will permit in order to effectuate its benevolent purposes,’ ” Philip Electronics, supra, 348 Md. at 216 , 703 A.2d 150 (citation omitted), “the Act has a purpose broader than serving the interests of employers and their employees ... The needs and expectations of society, in addition to those of the work force, come into play.” Belcher, 329 Md. at 737 , 621 A.2d 872 . As the Court of Appeals has said, “the Act protects employees, employers, and the public alike.” Polomski v. Mayor and City Council of Baltimore, 344 Md. 70, 76 , 684 A.2d 1338 (1996); see Waters, 361 Md. at 104 , 760 A.2d 663 .

Recovery pursuant to the Act is ordinarily an employee’s “sole recourse” as against an employer. Imbraguglio, 346 Md. at 578 , 697 A.2d 885 . But, under certain circumstances, the Act preserves the rights of the employee, the employer, and the insurer to sue for damages. Accordingly, we next ¹⁸ consider the statutory scheme with respect to third party tortfeasors.

When a worker sustains an injury arising out of and in the course of employment, but which was caused by the negligence of a third party, L.E. § 9-902 expressly provides the injured employee with the option of either: 1) filing a compensation claim against the employer to recover benefits under the Act, or 2) instituting an action for damages against the tortfeasor. 6 Imbraguglio, 346 Md. at 583-84, 697 A.2d 885 ; Saadeh v. Saadeh, Inc., 150 Md.App. 305, 312 , 819 A.2d 1158 , cert. denied, 376 Md. 52 , 827 A.2d 114 (2003). Although an employee is not entitled to collect a double recovery, the Act “neither excuses third-parties from their own negligence nor limits their liability.” Imbraguglio, 346 Md. at 583 , 697 A.2d 885 . Under L.E. § 9-902(a), a self-insured employer, or the employer’s insurer, is permitted to sue a third party whose tortious conduct causes an employee’s injuries, in order “to recoup from the tort-feasor the compensation it has paid.” Saadeh, 150 Md.App. at 314 , 819 A.2d 1158 ; see Podgurski v. OneBeacon Insurance Co., 374 Md. 133, 139-140 , 821 A.2d 400 (2003). Indeed, if an employee elects to receive compensation benefits as a result of an injury caused by a third party, then the employer has the exclusive right to bring a tort action against a third party for a period of two months following the award of compensation benefits to the employee.

L.E. § 9-902(c); see Franch v. Ankney, 341 Md. 350, 357-58 , 670 A.2d 951 (1996); Podgurski 374 Md. at 140, 821 A.2d 400 ; Erie Ins. Co. v. Curtis, 330 Md. 160, 164 , 623 A.2d 184 (1993); Saadeh, 150 Md.App. at 313 , 819 A.2d 1158 . But, L.E. § 9-902(b) requires the insurer or employer to pay any “excess” recovery to the claimant. See Podgurski, 374 Md. at 140 , 821 A.2d 400 ; Saadeh, 150 Md.App. at 313 , 819 A.2d 1158 . ¹⁹ If the employee opts to recover compensation benefits under the Act, even though the injury was caused by a third party, and the employer fails to file suit against the tortfeasor in the two-month exclusivity period, then the employee may also file suit against the third-party tortfeasor, despite having accepted compensation benefits.

Podgurski, 374 Md. at 140 , 821 A.2d 400 . In that event, “the employer retains a subrogation interest in the reimbursement of the workers’ compensation funds it paid pursuant to the Act....” Id. See Imbraguglio, 346 Md. at 584 , 697 A.2d 885 ; Collins v. United Pacific Ins. Co., 315 Md. 141, 145 , 553 A.2d 707 (1989) (interpreting predecessor statute).

This is because the employer’s interest “acts as a ‘statutory lien’ on any recovery the employee may obtain from the third party.” Franch, 341 Md. at 358 , 670 A.2d 951 . Several statutory provisions are particularly relevant to our analysis. We pause to review them. L.E. § 9-707 requires an employer to submit an employer’s report to the Commission when an employee loses more than three days of work because of an accidental work related injury.

Cornblatt, Meredith, and Sevel, Workers’ Compensation Manual (11th Ed.2003), at 39 (“Manual ”). The report must contain all “relevant and necessary” information for the determination of a claim. See Howard County Association for Retarded Citizens, Inc. v. Walls, 288 Md. 526, 531 , 418 A.2d 1210 (1980). L.E. § 9-707 states, in part: § 9-707.

Report by employer to Commission. (a) Accidental personal injury. — If an accidental personal injury causes disability for more than 3 days or death, the employer shall report the accidental personal injury and the disability or death to the Commission within 10 days after receiving oral or written notice of the disability or death. * * * (c) Contents of report. — Each report under subsection (a) or (b) of this section shall state: ²⁰ (1) whether the accidental personal injury or occupational disease arose out of and in the course of employment; (2) the time, cause, and nature of the disability and the accidental personal injury or occupational disease; (3) the probable duration of the disability; and (4) any other information that the Commission may require by regulation. L.E. § 9-709 requires the claimant to file an application for benefits within sixty days of the accident. The Commission then “establishes a ‘consideration date,’ which notifies the employer/insurer that the Commission will pass an award based on the evidence in the claim file unless the Commission is notified of the employer/insurer’s desire to contest the case on specific grounds or issues.” Manual, at 41; see Gilbert and Humphreys, Maryland Workers’ Compensation Handbook (2nd ed.), at 295 (“Handbook ”).

When an employee files a compensation claim with the WCC, L.E. § 9-713 requires the employer either to begin payment of benefits, or to file issues contesting the claim, within twenty-one days after the employee’s filing of the claim. “The filing of issues constitutes a request for a hearing before the Commission.” Manual, at 42. Under L.E. § 9-713(f), payment of benefits prior to an award of benefits is not a waiver of an employer’s right “to contest the claim.” L.E. § 9-713 provides: § 9-713. Payment of benefits or filing of issues. (a) Payment or filing within 21 days. — Except as provided in subsection (c) of this section, within 21 days after a claim is filed with the Commission, the employer or its insurer shall: (1) begin paying temporary total disability benefits; or (2) file with the Commission any issue to contest the claim.

(b) Failure to pay or file within 21 days — Penalties.—If the Commission finds that an employer or insurer has failed, without good cause, to begin paying temporary total ²¹ disability benefits or to file issues contesting a claim within 21 days after the claim is filed, the Commission may assess against the employer or insurer a fine not exceeding 20% of the amount of the payment. (c) Payment or filing within 30 days. — If the employer or its insurer does not begin paying benefits or file issues within 21 days under subsection (a) of this section, within 30 days after the claim is filed with the Commission, the employer or its insurer shall: (1) begin paying temporary total disability benefits; or (2) file with the Commission any issue to contest the claim. (d) Failure to pay or file within 30 days — Penalties.—If the Commission finds that an employer or insurer has failed, without good cause, to begin paying temporary total disability benefits or to file issues contesting a claim within 30 days after the claim is filed, the Commission may assess against the employer or insurer a fine not exceeding 40% of the payment. (e) Payment to covered employee. — The Commission shall order the employer or insurer to pay a fine assessed under this section to the covered employee.

(f) Payment of benefits not waiver.- — Subject to § 9-714 of this subtitle, payment by an employer or its insurer before an award, does not waive the right of the employer or its insurer to contest the claim. (Emphasis added). Pursuant to L.E. § 9-714, the Commission makes an award within thirty days after the filing of a claim, if the claim is uncontested. But, if a hearing is held, any award must await the results of the hearing.

In this case, no hearing was requested and none was held. The WCC issued its award to Windsor on July 18, 1995, requiring Chaney and its Insurer to pay benefits to Windsor. Although “[a]n initial award of compensation is a final appealable order,” Handbook, at 297, no appeal was taken from the Order of July 18, 1995. ²² L.E. §§ 9-714 and 9-715 pertain to the WCC’s power to investigate a claim. They state: § 9-714.

Claim processing. (a) Investigation; hearing. — When the Commission receives a claim, the Commission: (1) may investigate the claim; and (2) on application of any party to the claim, shall order a hearing. (b) Determination. — (1) The Commission shall make or deny an award within 30 days: (i) after the claim is filed; or (ii) if a hearing is held, after the hearing is concluded. (2) The decision shall be recorded in the principal office of the Commission, and a copy of the decision shall be sent by first class mail to each party’s attorney of record or, if the party is unrepresented, to the party. § 9-715.

Conduct of investigations. (a) In general. — The Commission may conduct an investigation in the manner that the Commission finds best to: (1) determine the substantial rights of each party; and (2) carry out justly the spirit of this title. (b) Rules of evidence and, procedure. — Except as otherwise provided in this title, the Commission is not bound by: (1) any common law or statutory rule of evidence; or (2) any formal or technical rule of procedure. As we observed earlier, L.E. § 9-901 permits an employee who is injured as a result of the negligence of a third party to bring suit against the third party, or proceed under the Act and then sue the third party.

See Handbook, at 308. Under L.E. § 9-903, if the claimant sues a third party in tort, but the claim for damages yields an award less than what the worker would have received under the Act, the worker retains the right to seek to “reopen the claim for compensation,” in order to recover an amount equal to what the injured employee would have received in compensation had he or she proceeded under the Act. As a result, the worker need not suffer the ²³ consequence of a “bad guess” as to the appropriate course of action, and does not risk losing all benefits under the Act, “in the event of a choice which proves to have been unwise.” Larson's, § 115, at 115-1. L.E. § 9-903 provides: § 9-903.

Effect of receipt of amount in action. (a) In general. — Except as provided in subsection (b) of this section, if a covered employee or the dependents of a covered employee receive an amount in an action: (1) the amount is in place of any award that otherwise could be made under this title; and (2) the case is finally closed and settled. (b) Exception. — If the amount of damages received by the covered employee or the dependents of the covered employee is less than the amount that the covered employee or dependents would otherwise be entitled to receive under this title, the covered employee or dependents may reopen the claim for compensation to recover the difference between: (1) the amount of damages received by the covered employee or dependents; and (2) the full amount of compensation that otherwise would be payable under this title. L.E. § 9-902 allows a self-insured employer or an insurer to sue a third party tortfeasor to recover compensation benefits paid on behalf of a claimant.

It states: § 9-902. Action against third party after award or payment of compensation. (a) Action by self-insured employer, insurer, or fund. — If a claim is filed and compensation is awarded or paid under this title, a self-insured employer, an insurer, the Subsequent Injury Fund, or the Uninsured Employers’ Fund may bring an action for damages against the third party who is liable for the injury or death of the covered employee. (b) Recovery of damages exceeding compensation, and other payments. — If the self-insured employer, insurer, Subsequent Injury Fund, or Uninsured Employers’ Fund ²⁴ recovers damages exceeding the amount of compensation paid or awarded and the amount of payments for medical services, funeral expenses, or any other purpose under Subtitle 6 of this title, the self-insured employer, insurer, Subsequent Injury Fund, or Uninsured Employers’ Fund shall: (1) deduct from the excess amount its costs and expenses for the action; and (2) pay the balance of the excess amount to the covered employee or, in case of death, the dependents of the covered employee.

(c) Action by covered employee or dependents. — If the self-insured employer, insurer, Subsequent Injury Fund, or Uninsured Employers’ Fund does not bring an action against the third party within 2 months after the Commission makes an award, the covered employee may bring an action for damages against the third party. (d) Limitations period. — The period of limitations for the right of action of a covered employee or the dependents of the covered employee against the third party does not begin to run until 2 months after the fist award of compensation made to the covered employee or the dependents under this title. (e) Distribution of damages. — If the covered employee or the dependents of the covered employee recover damages, the covered employee or dependents: (1) first, may deduct the costs and expenses of the covered employee or dependents for the action; (2) next, shall reimburse the self-insured employer, insurer, Subsequent Injury Fund, or Uninsured Employers’ Fund for: (i) the compensation already paid or awarded; and (ii) any amounts paid for medical services, funeral expenses, or any other purpose under Subtitle 6 of this title;.... Code of Maryland Regulations (“COMAR”) 14.09.01.08 permits a party to implead an alleged co-employer in a compensa ²⁵ tion case.

Tt provides: “Claim Against Statutory Employer or Co-employer. A party may join a person designated by statute as an employer or alleged to be a co-employer by notifying the Commission in writing of the person’s correct name and address.” (Emphasis added). The Commission’s decision carries a prima facie presumption of correctness. L.E. § 9-745(b); Martin, 353 Md. at 402 , 726 A.2d 728 ; Gleneagles, Inc. v. Hanks, 156 Md.App. 543, 550 , 847 A.2d 520 , slip op. at 7 (2004).

Nevertheless, “a reviewing court has broad authority and may reverse the Commission’s decision when it is based on an erroneous conception of the law.” Board of County Comm’rs v. Vache, 349 Md. 526, 537 , 709 A.2d 155 (1998); see Mona Elec. Services, Inc. v. Shelton, 148 Md.App. 1, 5 , 810 A.2d 1022 (2002); Henville v. Southwest Airlines, Inc., 142 Md.App. 79, 86 , 788 A.2d 210 (2002).

III

We consider the statutory scheme outlined above in light of the canons of statutory construction. The interpretation of a statute is a judicial function. Muhl v. Magan, 313 Md. 462, 481-82 , 545 A.2d 1321 (1988). Our goal is to “ascertain and effectuate legislative intent.” Consolidated Constr.

Servs., Inc. v. Simpson, 372 Md. 434, 456 , 813 A.2d 260 (2002); see Liverpool v. Baltimore Diamond Exchange, Inc., 369 Md. 304, 316 , 799 A.2d 1264 (2002); Mayor & City Council of Baltimore v. Chase, 360 Md. 121, 128 , 756 A.2d 987 (2000). Generally, we give the words of the statute their “ordinary and common meaning within the context in which they are used.” Polomski, 344 Md. at 75 , 684 A.2d 1338 . To the extent “reasonably possible,” we read a statute so “that no word, phrase, clause, or sentence is rendered surplusage or meaningless.” Mazor v. State Dep’t of Correction, 279 Md. 355, 360 , 369 A.2d 82 (1977); see Eng’g Mgmt. Servs., Inc. v. Md. State Highway Admin., 375 Md. 211, 224 , 825 A.2d 966 (2003); Motor Vehicle Admin, v. Lytle, 374 Md. 37, 61-2 , 821 A.2d 62 (2003).

To effectuate the legislative intent, we may ²⁶ consider “ ‘the consequences resulting from one meaning rather than another, and adopt that construction which avoids an illogical or unreasonable result, or one which is inconsistent with common sense.’ ” Chesapeake Charter, Inc. v. Anne Arundel County Bd. of Educ., 358 Md. 129, 135 , 747 A.2d 625 (2000) (citation omitted). But, “absurd results” in the interpretation of a statute “are to be shunned.” Mayor & Council of Rockville v. Rylyns Enters., Inc., 372 Md. 514, 550 , 814 A.2d 469 (2002). When, as here, a statutory provision is part of a statutory scheme, “ ‘all sections of the Act must be read together ... to discern the true intent of the legislature.’ ” Breitenbach, 366 Md. at 472 , 784 A.2d 569 (citation omitted); see Vest v. Giant Food Stores, Inc., 329 Md. 461, 466-67 , 620 A.2d 340 (1993); Ball v. Univ. of Maryland, 137 Md.App. 229, 232 , 768 A.2d 105 (2001) ; Buskirk v. C.J. Langenfelder & Son, Inc., 136 Md.App. 261, 269 , 764 A.2d 857 (2001). We do not examine the provisions of such a statute as if they are “isolated, independent sections.” Waters, 361 Md. at 104 , 760 A.2d 663 .

As noted, the Act was conceived to protect workers and their families, “ ‘based largely on a social theory of providing support and