Dove v. Montgomery County Board of Education

WOODWARD, J. On October 5, 1995, Inek L. Dove, appellant, was injured during the course of her employment with appellee, Montgomery County Board of Education (“the Board”). Dove filed a timely claim with the Workers’ Compensation Commission (“Commission”) on October 10, 1995. Dove received several awards of disability benefits from the Commission between November 17, 1995 and May 31, 2000. On June 10, 2000, Dove received her last payment of disability benefits from the Board.

On June 3, 2005, Dove filed a Request for Reconsideration/Modification of the May 31, 2000 award, stating that she was entitled to additional temporary total disability benefits for the period of November 29, 2001, to the present and continuing. On February 2, 2006, the Commission held a hearing on Dove’s request. At the beginning of the hearing, Dove reduced her request for temporary total disability benefits to two days—August 29, 2002, and September 17, 2002. The Board raised the issue of limitations, arguing that Dove did not have a basis in fact when she filed her request for modification six days before the end of her limitations period.

The Commission issued its Award of Compensation on February 10, 2006, finding that Dove’s claim was not barred by ⁷⁰⁶ limitations under Section 9—736(b)(3) 1 and awarding Dove benefits for the requested two days. The Board filed a Petition for Review in the Circuit Court for Montgomery County on March 9, 2006, and thereafter filed a Motion for Summary Judgment, which Dove opposed. After a hearing, the circuit court granted the Board’s motion for summary judgment, finding that Dove did not have a basis in fact when she filed her June 3, 2005 claim. The court also ruled that she failed to support her claim before the Commission by expert medical testimony and medical records.

Dove filed a timely notice of appeal to this Court and presents the following two issues for appeal: 1. Whether the circuit court, in an essentially de novo jury process, can grant an employer’s motion for summary judgment on the factual issue of temporary total disability benefits when the claimant prevailed at the Workers’ Compensation Commission. 2. Whether a petition to reopen for additional temporary total disability benefits is timely filed when a claimant files the petition within five years of the date of last payment of compensation alleging a change in disability status and the Commission finds a change in disability status by awarding additional disability benefits. For the reasons set forth herein, we reverse the judgment of the circuit court and remand the case for further proceedings consistent with this opinion.

BACKGROUND On October 5, 1995, Dove sustained an injury to her right leg and back while working as a bus driver for the Board. Dove was boarding her school bus during a heavy rain storm when she slipped on the bottom step of the bus and fell upon her right knee. On October 10, 1995, Dove completed and ⁷⁰⁷ filed an Employee’s Claim with the Commission. The Board notified the Commission that it did not contest Dove’s claim and that it began paying Dove temporary total disability benefits as of October 6,1995.

The Commission issued its first Award of Compensation and Average Weekly Wage on November 17, 1995, ordering the Board to pay Dove $241.00 per week for the duration of her temporary total disability and provide her with necessary medical treatment and services. 2 On May 30, 1996, Dove filed Issues with the Commission, requesting a determination of permanent disability to her right leg (knee) and back. On August 7, 1996, the Commission held a hearing on the nature and extent of Dove’s injuries. On August 21, 1996, the Commission issued its Award of Compensation, ordering the Board to pay Dove temporary total disability benefits for two time periods: October 6,1995 through March 29, 1996, and May 29,1996 through June 16, 1996. The Commission also issued an award of permanent partial disability, which reads: PERMANENT PARTIAL DISABILITY—APPORTIONMENT APPLICABLE: Under “Other Cases” 20% industrial loss of use of the body as a result of an injury to the back, of which 10% is reasonably attributable to the aforesaid accidental injury and 10% thereof is due to a preexisting condition and has sustained no permanent partial disability to the right leg (knee) as a result of the accidental injury on October 5,1995[ ]....

On February 11, 1997, Dove filed a request to reopen her August 21, 1996 award because of a worsening of her condition. Dove attached to her request a copy of a report written by her doctor, James Weiss, M.D., and a copy of a prescription for a set of epidural steroid injection treatments. Dove then filed Issues with the Commission on April 21, 1997, requesting ⁷⁰⁸ temporary total disability benefits and a determination on whether the Board had “failed to authorize chiropractic treatment with Dr. Jonathon Davis, per the recommendation of Dr. James Weiss in his 3/19/97 medical report,” which Dove attached to the form. A hearing on the requests was held May 28,1997.

On June 13, 1997, the Commission issued its Award of Compensation, ordering the Board of Education to pay Dove temporary total disability benefits for the time period “March 3, 1997 to present and continuing.” The Commission also ordered the Board to provide Dove medical treatment recommended by Dr. Weiss and awarded Dove’s counsel attorney’s fees. On June 16, 1998, Dove underwent back surgery, wherein her doctors fused several vertebrae in her back and performed a bone graft. On February 16, 2000, Dove filed Issues with the Commission, requesting (1) permanent disability benefits due to a worsening of condition, specifically her back and the disfigurement of her right hip, and (2) the payment of outstanding medical expenses. On May 26, 2000, the parties jointly filed Stipulation of Parties and Award of Compensation.

The stipulation indicated that Dove had been deemed temporarily totally disabled during the following time periods—“10/6/95-3/17/96; 5/29/96-6/16/96; 3/4/97-8/1/97; 8/16/97-9/1/97 and 3/27/98-8/29/99”—and temporary partially disabled from March 18, 1996 through March 28, 1996. The parties also stipulated to the following: The parties agree to a permanent partial disability of 26% body as a whole to the back with 15% [permanent partial disability] to the back related to [date of accident]: 10/5/95 (which represents a 5% increase over the last award of 8/21/96) and 11% [permanent partial disability] due to a preexisting condition. The parties further agree to stipulate to 5 weeks of compensation for disfigurement to the right hip at the rate of $175.00, payable weekly, beginning 8/30/99 for 80 weeks. ⁷⁰⁹ Notably, two medical evaluation reports from Dr. Joseph Y. Lin and Dr. Phillip Schneider were attached to the form. The Commission approved the stipulation on May 31, 2000.

The Board issued a check for Dove’s permanent partial disability benefits, in the amount of $7175.00 on June 6, 2000. The check was received by Dove’s counsel on June 10, 2000. This check was the last payment received by Dove under the Commission’s May 31, 2000 Award of Compensation. Between May 31, 2000 and June 3, 2005, Dove continued receiving medical treatment for her injuries.

As part of the treatment, she received epidural steroid injections on August 29, 2002, and on September 17, 2002. On June 3, 2005, Dove filed with the Commission a Request for Reconsideration/ Modification of the May 31, 2000 award, stating that she “is entitled to additional temporary total benefits.” At the same time Dove also filed Issues, which requested temporary total disability benefits for the time period from November 29, 2001 to the present and continuing, and a medical report from Dr. Harikant Shah dated November 29, 2001. The Commission held a hearing on February 2, 2006. At the hearing, Dove reduced her request for temporary total disability benefits to only two days—August 29, 2002, and September 17, 2002.

Dove introduced two medical reports stating that she received epidural steroid injections on those two days. She did not introduce any disability slips for those days, but when questioned by Commissioner Lauren Sfekas, Dove testified that she did not go to work those days because of the injections. The Board raised the issue of the statute of limitations before the Commission, arguing that Dove “filed issues without a basis in fact.” Citing Buskirk v. C.J. Langenfelder & Son, Inc., 136 Md.App. 261 , 764 A.2d 857 (2001), the Board contended that Dove was required to have a basis in fact for her issue(s), i.e., documentation, before she could file her request for additional benefits. Dove countered that Buskirk “does not require that [at] the time that the issues were raised ⁷¹⁰ that the claimant ha[ve] all the medical documentation required to prove her case,” only a basis in fact for her allegation.

On February 10, 2006, the Commission issued its Award of Compensation. The Commission determined, among other things, that Dove’s claim was not barred by the five-year statute of limitations and ordered that the Board pay Dove temporary total disability benefits for August 29, 2002, and September 17, 2002. On March 9, 2006, a Petition for Judicial Review was filed in the Circuit Court for Montgomery County. On July 24, 2006, the Board filed a Motion for Summary Judgment.

Dove filed her opposition to the motion for summary judgment on August 7, 2006. A hearing on the motions was held on August 26, 2006. The circuit court issued the Order of the Court on September 6, 2006, 3 in which the court granted the Board’s motion for summary judgment and remanded the case to the Commission for “an entry of an award reversing its decision to grant temporary total disability benefits to [Dove] for August 29, 2002 and September 17, 2002.” The order states in pertinent part: In Buskirk v. C.J. Langenfelder & Son, Inc., 136 Md.App. 261 , 764 A.2d 857 (2001), Judge Eyler speaking for the Court held that when a petition to reopen to modify a workers’ compensation award pursuant to Labor and Employment [§ ] 9-736(b) is filed and the award sought is based on a change in disability status, the petition must be filed within a 5 year period and allege a change in disability status, with a basis in fact, as opposed to merely alleging continuing medical treatment. In the case before this Court there was no showing of such a basis in fact.

There was merely a bald allegation of temporary total disability from 11/29/01 to present and continuing. Furthermore, this Court notes that [Dove] modified her Petition for Modifica ⁷¹¹ tion at the hearing before the Commission and alleged that she was temporarily disabled on August 29, 2002 and September 17, 2002. What is significant is that she didn’t file for temporary total disability modification until June 3rd, 2005. Additionally, there was no mention of steroid injections when she attempted to toll the statute of limitations with her filing on June 3rd, 2005.

The Court concludes that [Dove] rushed to the Workers’ Compensation Commission as the statute of limitations curtain was falling and filed a petition with no basis in fact as required by Buskirk v. C.J. Langenfelder & Son, Inc., supra. Pursuant to the holding in the case of S.B. Thomas, Inc. v. Thompson, 114 Md.App. 357 , 689 A.2d 1301 (1997) I find that the issue of temporary total disability for August 29th, 2002 and September 17th, 2002 are complicated medical questions especially in light of the fact that [Dove] was seeking a modification and that she had suffered spondylolisthesis to her back that pre-existed the accidental injury of October 5, 1995. Because there were complicated medical questions, expert medical testimony was necessary to establish a prima facie case. Thomas v. Thompson, supra, mandates that [Dove] provide medical proof through medical records. [Dove] failed to provide medical proof and therefore the Commissioner had no legal authority to conclude temporary total disability for August 29th and September 17th, 2002 for [Dove].

Dove filed a timely appeal with this Court. DISCUSSION A Standard of Review Summary judgment is appropriately granted if, when viewing the facts in a light most favorable to the non-moving party, “there is no genuine dispute as to any material fact and that the [moving] party is entitled to judgment as a matter of law.” Md. Rule 2-501 (a); accord Messing v. Bank of America, 373 ⁷¹² Md. 672, 683-84, 821 A.2d 22 (2003). This Court reviews the circuit court’s conclusions of law de novo. Lightolier v. Hoon, 387 Md. 539, 551 , 876 A.2d 100 (2005).

The circuit court relied on two independent grounds in granting the Board’s motion for summary judgment. We shall review each ground in turn. B Statute of Limitations The circuit court first ruled that Dove’s claim was barred by the statute of limitations set forth in Section 9-736(b). The circuit court read this Court’s holding in Buskirk to require claimants filing petitions to modify awards of compensation to file the petition “within a 5 year period and allege a change in disability status, with a basis in fact.” The circuit court concluded that Dove “rushed to the Workers’ Compensation Commission as the statute of limitations curtain was falling and filed a petition with no basis in fact as required by Buskirk v. C.J. Langenfelder & Son, Inc.,” and consequently, ruled that her claim for temporary total disability benefits was barred by the statute of limitations. “[Wjhether a cause of action is barred by the statute of limitations is ordinarily a mixed question of law and fact that may be taken from the jury only when the court determines as a matter of law that the suit was not instituted within the proper time.” James v. Weisheit, 279 Md. 41, 46 , 367 A.2d 482 (1977).

In the case sub judice, there is no dispute as to the material facts: On May 31, 2000, the Commission issued Dove’s last Award of Compensation, approving the parties’ stipulation and agreed-upon award of compensation. On June 10, 2000, Dove received the only payment of compensation under the May 31, 2000 award—a check for the permanent partial disability benefits. On June 3, 2005, several days short of the running of the five-year statute of limitations period, Dove filed with the Commission a Request for Reconsideration/Modification and Issues, along with a letter authored by Dr. Harikant Shah. We are thus asked to determine, as a ⁷¹³ matter of law, whether such actions taken by Dove are in compliance with the five-year statute of limitations set forth in Section 9—736(b).

Dove argues that the circuit court erred in ruling that her claim before the Commission was not timely filed. Specifically, Dove contends that the circuit court incorrectly read and applied this Court’s holding in Buskirk to her claim. Dove asserts that she “did file a petition to reopen alleging a specific change in disability status, ie., the claimant is entitled to additional temporary total benefits” and she did have a basis in fact for her request. Dove further argues that the court’s reading of Section 9-736 is erroneous as “nothing in Section 9-736 requires the totality of all written documentation in support of a petition to reopen must be submitted at that time of filing the petition to reopen.” The Board counters that summary judgment was appropriately granted because Dove’s claim for temporary total disability benefits did not meet the requirements of Section 9-736(b).

In particular, the Board complains that Dove did not “support [her] modification request with medical evidence,” as required by this Court in Buskirk . The Board argues that, while Dove introduced two medical reports of her epidural steroid injections at the Commission hearing, Dove did not have these reports on June 3, 2005, when she filed her issues with the Commission. The Board asserts that, under Buskirk , Dove was required to have these reports at the time of her filing. The Board argues that, if Dove is allowed to succeed in her claim, every claimant would be able to file preemptory issues for temporary total disability from the date of the past award of compensation and the ensuing five years in hopes of finding one day of temporary total disability to keep limitations from running.

An employer would not know until the date of the hearing the actual basis in fact of the employee’s request to reopen. No only would such interpretation of the statute prejudice the employer, but it would encourage the flooding of the Commission with groundless issues in the ⁷¹⁴ hopes of finding a reasonable basis to support issues filed by the time the hearing date arrives. Furthermore, the Board contends that Dove improperly reduced her request for benefits at the Commission hearing from “November 29, 2001, to present and continuing” to only two days. The Board argues that Dove’s reduction of her benefits claim amounts to the raising of new issues, which would be barred because they were raised after the Section 9-736(b)(3) limitations period had expired.

We disagree with the Board and hold that the circuit court erred in ruling that Dove’s claim was barred by the statute of limitations. We explain. At the hearing before the Commission on February 2, 2006, the Board argued that Dove was required to have all medical documentation supporting her claim prior to filing her request for modification with the Commission. Commissioner Sfekas dismissed this argument, stating: “They have to have it today and show it was true back then.

They can’t get evidence today, that’s new evidence.” In other words, Commissioner Sfekas ruled that when a claimant files a request of modification of an award of compensation, the claimant does not have to produce all necessary medical documentation at the time of the filing of the request. Rather, the claimant must produce such documentation at the time of the hearing before the Commission and it must show that a change in disability occurred during the period covered by the applicable statute of limitations. A claimant would not be permitted to adduce evidence showing a change in disability status after the running of the statute of limitations. The question presented by the instant appeal requires us to determine whether Section 9-736(b) includes a requirement that a request for modification of an existing award must be accompanied, at the time of filing, by all necessary medical documentation supporting the claim.

Section 9-736(b) reads as follows: ⁷¹⁵ (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 latter of: (i) the date of the accident; (ii) the date of disablement; or (iii) the last compensation payment. The plain language of Section 9—736(b) does not specify any requirement of filing supporting documentation with a request for the modification of an award of compensation.

Indeed, we find only two express requirements under Section 9-736(b): (1) that the modification must be applied for within five years after the latter of the date of the accident, the date of the disablement, or the last compensation payment; and, (2) that the Commission have justification for its ordered modification. The Commission, however, is granted independent rule-making power under Section 9-701. Regulations concerning the procedure before the Commission can be found in the Code of Maryland Regulations (“COMAR”) at Title 14, Section 9. The Commission has promulgated regulations relevant to our inquiry.

First, COMAR 14.09.01.10, entitled “Disclosure of Medical Information,” provides in pertinent part: “When a claim has been filed with the Commission, each party promptly shall provide to all other parties copies of all relevant medical information which is in the possession of the party or that is subsequently received by the party.” COMAR 14.09.01.10(A). In addition, COMAR 14.09.01.14, entitled “Hearings,” requires that the claimant “send the other party or parties ... a detailed list of all medical reports the claimant intends to introduce at the time of hearing,” and “prepare an exhibit which shall include all documents which have not been previ ⁷¹⁶ ously filed with the Commission and which are relevant and necessary to decide the issue or issues to be heard.” COMAR 14.09.01.14(A)(2) & (E). We read nothing in these regulations to require that a claimant file all supporting documentation with a request for modification of an award. Rather, at the time of filing, a claimant is only required to provide relevant medical information to the other involved parties (ie., employer and insurer) that is in his or her possession.

Moreover, these regulations clearly contemplate the use of medical information received by either party after the claim is filed with the Commission. Second, COMAR 14.09.01.16, entitled “Motions for Modifications or Changes,” reads in pertinent part: A. A party seeking modification by the Commission of a prior finding or order shall file with the Commission a motion for reconsideration. B. The motion shall state specifically the finding or order that the party wishes modified and the facts and law upon which the party is relying as grounds for the modification. Again, there is nothing in the language of this regulation requiring that a claimant file all medical documentation at the time of filing a request for a modification of an award.

Finally, the forms adopted by the Commission to implement this regulation, namely, Request for Reconsideration/Modification (WCC Form H30R) and Issues (WCC Form H24R), do not mandate the filing of medical documentation. 4 The Request for Reconsideration/Modification instructs a party to submit the basis for the request by completing the following preprinted form: The undersigned party to this Workers’ Compensation Claim hereby requests modification of the Order dated and as justification states: ⁷¹⁷ 0 The claimant is entitled to additional temporary total benefits 0 The claimant’s permanent disability has increased 0 The claimant’s permanent disability has decreased 0 Other No other information is required to be provided on the form to support the modification request. At the bottom of the Request for Reconsideration/Modification, however, appears the following preprinted language: “A copy of this form with supporting documentation, including Issues (H24R), has been sent to the other parties/attorneys to this action.” (Emphasis in original). This language does not, expressly or impliedly, require that all medical documentation supporting a claim for modification be filed or even provided to the other party. Consistent with COMAR 14.09.01.10(A), we read this language as simply directing a party to “provide to all other parties copies of all relevant medical information which is in the possession of the party ” at the time that the request for modification is filed.

(Emphasis added). Also consistent with COMAR 14.09.01.10(A), each party is free to use any relevant medical information