Darby v. Marley Cooling Tower Co.

LAWRENCE F. RODOWSKY, Judge (Retired, Specially Assigned). This appeal from the Circuit Court for Baltimore County is an action for judicial review of an administrative agency ⁷³⁸ decision, 1 in this case, the Workers’ Compensation Commission (the Commission). Formally, the question presented is whether the circuit court erred in approving a voluntary dismissal of the appeal from the Commission by the appellees, Marley Cooling Tower Co. (Marley), the employer. 2 The employee and initial appellee in the circuit court was James M. Darby, deceased, whose successor is the appellant here, James F. Darby, as Personal Representative of the Estate of Jaimes M. Darby. 3 The underlying question of substance presented is whether Darby, without having appealed from the Commission decision, had an interest in Marley’s maintaining its appeal so that Darby might obtain a partial reversal of the Commission’s order. Darby, a forty-one year old carpenter, suffered an injury on December 5, 2005, during the course of his employment with Marley.

He was struck on the head by a 24' by 12" by 6" aluminum board used as a temporary work surface, which was dropped by a co-worker. After having been taken for medical, attention on the day of the accident, he returned to work for a “light duty” assignment. The treatment at Concentra Medical Center showed tenderness at the C2 through C7 vertebra. A trapezius bilateral test was positive for pain, and x-rays showed a straightening and loss of the anterior cervical lordosis, which is suggestive of muscle spasm.

The following day he went to the emergency room at Johns Hopkins Bayview medical facilities. Then, on December 20, he again went to the emergency room for pain related to the injury. Darby filed a claim with the Commission on December 22, 2005, seeking temporary total disability (TTD) from December 6, 2005, and thereafter. The Commission’s hearing was on ⁷³⁹ April 10, 2006.

By its order of April 20, 2006, the Commission ruled in relevant part: “The Commission finds on the issues presented that the claimant sustained an accidental injury arising out of and in the course of employment on December 5, 2005, that the disability of the claimant is the result of the accidental injury. The Commission denies the claim for temporary total disability from December 6, 2005 to date and continuing. The Commission further finds that the employer and insurer shall pay causally related medical expenses in accordance with the Medical Fee Guide of this Commission.” Marley timely appealed from that order, alleging that the Commission “erroneously found that the Claimant sustained an accidental injury arising out of and in the course of employment [and erroneously] ordered the Employer and Insurer pay the causally related medical bills[.]” Although Marley had not been ordered to pay any compensation, its aggrievement with the Commission’s order was its liability for future medical expenses. Marley elected a jury trial.

Consistent with Maryland Rule 7-204(a), Darby responded by stating his intent to participate in the appeal. 4 Darby also elected a jury trial. While the appeal from the Commission was pending, the parties agreed on a lump sum settlement. Darby, however, died on August 3, 2007, without having signed the settlement agreement, and consequently, without the Commission’s having approved the settlement. 5 Marley advised Darby’s counsel that it objected to having the personal representative ⁷⁴⁰ of Darby’s estate sign the settlement agreement. Thereafter, inasmuch as Marley’s principal concern prompting its appeal had been its continued exposure for medical expenses, a concern that was mooted by Darby’s death, 6 Marley moved voluntarily to dismiss its appeal. 7 Following the submission of dueling memoranda by the parties, in the form of letters to the court clerk, the court (Souder, J.) dismissed Marley’s petition, without prejudice.

Within ten days, Darby moved “for reconsideration,” including a request for a hearing on his motion. Marley opposed the motion. By order filed November 6, 2008, the court (Fader, J.) denied the motion. Darby timely noted an appeal to this Court from that order.

The appellant presents the following questions for review: “1. Did The Circuit Court Err in Dismissing the Appeal Without the Appellant’s Consent When the Appellant Had an Absolute Right to Have its Issues Heard Without the Necessity of Filing a Cross-Appeal? “2. Did The Circuit Court Err in Rendering a Decision That was Dispositive of the Appellant’s Claim for Tem ⁷⁴¹ porary Total Disability Benefits Without a Hearing in Violation of Maryland Rule of Procedure 2-311(f)? “3. Did The Circuit Court Err by Failing to Give the Appellant a ‘Meaningful’ Opportunity to be Heard prior to Depriving it of Property in Violation of the Appellant’s Due Process rights under the United States Constitution?” I Appeals of Commission orders are authorized by Maryland Code (1991, 2008 Repl.Vol.), § 9-737 of the Labor and Employment Article (LE).

It reads in pertinent part: “An employer, covered employee, dependent of a covered employee, or any other interested person aggrieved by a decision of the Commission ... may appeal from the decision of the Commission provided the appeal is filed within 30 days after the date of the mailing of the Commission’s order[.]” (Emphasis added). In his argument, Darby points out that, because a jury trial was prayed for the appeal, it is de novo. He cites Esteps Elec. & Petrolemm Co. v. Sager, 67 Md.App. 649, 659 , 508 A.2d 1032, 1037 (1986), where this Court stated that “the standard of review of the decision of the Workmen’s Compensation Commission shall be by way of trial de novo.... [Pjarties are free to adduce evidence additional to that produced before the Commission!?]” From this he concludes that he had “an absolute right to have [his] issues heard [in the circuit court] without the necessity of filing a cross-appeal.” (Bold type altered). This proposition flows, submits Darby, from the nature of a de novo appeal from the Commission.

He relies on a sentence in Griggs v. C & H Mechanical Corp., 169 Md.App. 556, 564 , 905 A.2d 402, 407 (2006), where this Court said that “the de novo nature of the action means that the circuit court must consider all of the issues that were raised in the Commission proceedings.” In other words, Darby contends that Marley’s petition, directed to its aggrievement over liability for medical expenses, brought before the circuit court, ⁷⁴² without any cross-appeal by Darby, the Commission’s rejection of compensation for Darby for TTD, over which Marley was not aggrieved. The final step in Darby’s argument is that Marley’s appeal could not be dismissed without his consent, because a unilateral dismissal would violate the policy underlying Maryland Rule 2-506(b). See n. 7, supra 8 Darby concludes that the circuit court abused its discretion in approving Marley’s voluntary dismissal of its appeal. In contrast, Marley relies on Rule 7-203(b), part of the Chapter that governs action for judicial review of an order or action of an administrative agency.

See Rule 7-201 (a). Rule 7-203(b) provides: “If one party files a timely petition [for appeal], any other person may file a petition within ten days after the date the agency mailed notice of the filing of the first petition, or within the period set forth in section (a), whichever is later.” Under a strict application of this rule, Darby would have to have cross-appealed in order to obtain a reversal of the Commission’s denial of TTD benefits. Marley, however, seems partially to agree with Darby as to the applicability of the Griggs case, supra. In its brief, Marley states: “The Appellee does not dispute that, in the event the instant case proceeded to trial in the circuit court, the Appellant could litigate any issues decided by the Workers’ Compensation Commission in its Order of April 20, 2006, without filing its own cross-appeal.

See Griggs v. C & H Mechanical Corp., 169 Md.App. 556 , 905 A.2d 402 (2006). However, neither this concession nor the Griggs case stand for the proposition that the Appellant has an independent right to proceed to trial on the Appellee’s Petition for Judicial Review if the Appellee dismisses its appeal and the ⁷⁴³ Appellant did not file a cross-appeal or Petition for Judicial Review of its own.” The appellee’s position seems to be that, because the continued viability of Darby’s claim for disability benefits rested totally on Marley’s appeal, that claim was extinguished when Marley exercised its unilateral right voluntarily to dismiss its appeal. We do not fully agree with either party’s position. Each argument illustrates the unfortunately too common fallacy of failing to limit the language in a judicial opinion, in this instance, Griggs , to the context in which that language was employed.

We explain. In Griggs , the appeal to the circuit court was taken by the employer. It