Ewing v. Koppers Co., Inc.

POLLITT, Judge. This case concerns the extent to which the Workmen’s Compensation Commission retains continuing jurisdiction in a case which has been appealed to the circuit court. Appellant, Lawton Edward Ewing, while in the employ of appellee, Koppers Company, Incorporated, on December 19, 1979, sustained an injury to his back, for which a claim for compensation was filed with the Commission and an award made. After Ewing suffered two falls in 1984, necessitating surgery on his left knee, the claim was reopened. ⁷²⁴ Hearings were held before Commissioner Edward A. Palamara on August 24 and October 16, 1984, on six issues: (1) additional temporary total disability, (2) medical bills, (3) further medical treatment including surgery, (4) causal connection as to medical treatment and surgery for left leg and knee, (5) nature and extent of disability, and (6) vocational rehabilitation.

While the record of those hearings is not before us, the Commissioner found as follows: The Commission has concluded to allow the claim for additional temporary total disability from April 21, 1984 to date and continuing; and finds on the third and fourth issues that the claimant’s medical treatment and surgery for the left leg and knee as of April 21, 1984 is causally related to the accidental injury of December 19,1979, and will direct the employer, self-insurer, to provide for same. The Commission finds on the second issue that the employer, self-insurer, shall pay medical bills including the bill of Dr. Thomas Pezefsky in accordance with the Medical Fee Schedule of this Commission; and further finds on the sixth issue that the claimant shall be referred to the Division of Vocational Rehabilitation. It is therefore this 1st day of November, 1984, by the Workmen’s Compensation Commission ORDERED that Koppers Company, Incorporated, employer, self-insurer, pay unto Lawton Edward Ewing, claimant, compensation for additional temporary total disability at the rate of $220.00, payable weekly, beginning April 21, 1984 to date and continuing during the period of temporary total disability of the claimant pending further Order from this Commission; and pay for further medical treatment including surgery and medical treatment and surgery for the left leg and knee as of April 21, 1984; and pay medical bills including the bill of Dr. Thomas Pezefsky in accordance with the Medical Fee Schedule of this Commission; and further ORDERED that Lawton Edward Ewing, claimant, be referred to the Division of Vocational Rehabilitation. This Award is subject to further consideration by this Commission as to whether the claim ⁷²⁵ ant sustained any increase in permanent disability, the case shall be reset only on request; subject to the provisions of the Workmen’s Compensation Law of Maryland.

It is further ORDERED that statement of compensation paid be filed with this Commission in due time. EDWARD A. PALAMARA COMMISSIONER (Emphasis added) Koppers filed a timely appeal to the Circuit Court for Baltimore County. It alleged, among other things, that the Commission erred in finding a causal relationship between the accident of December 19, 1979, and the existing leg and knee condition. That appeal, case number 84-CG-1438, is still pending before the circuit court.

Subsequent to that appeal, on April 12, 1985, the parties were notified by the Commission that a written vocational rehabilitation plan and report had been filed and that either of them could request a hearing to controvert the report within ten days from the date of the notice. Koppers responded by letter to the Commission, dated April 17,1985, which it asked be accepted as notice of controversion, but did not request a hearing. That letter also reminded the Commission, “this case is on appeal to the Circuit Court for Baltimore County and will be tried according to the current schedule on May 21, 1985.” The case was not tried on the expected date. On June 7, 1985, Ewing requested a hearing before the Commission on the issue of vocational rehabilitation.

After some further negotiations and attempts to reach an agreement, a hearing was held on November 12, 1985, on the issues of (1) controversion of the vocational rehabilitation report, and (2) credit for payments, culminating in findings and orders as follows: The Commission has concluded to deny the employer, self-insurer’s controversion of the vocational rehabilitation report; and finds that the claimant shall undergo the program at Dundalk Community College in Business ⁷²⁶ Management including Accounting and Bookkeeping; and that the employer, self-insurer shall pay the claimant compensation at the rate of $220.00 per week during said period of Vocational Rehabilitation; and finds, on the second issue that the request for credit of payments paid for job placement attempts versus benefits under schooling is denied. It is, therefore, this 20 day of November, 1985, by the Workmen’s Compensation Commission ORDERED that Lawton Edward Ewing, claimant, undergo vocational rehabilitation program at Dundalk Community College as hereinabove stated; and further ORDERED that Koppers Company, Incorporated, employer, self-insurer, pay unto Lawton Edward Ewing, claimant, compensation for vocational rehabilitation at the rate of $220.00, payable weekly and continuing during said period of vocational rehabilitation; subject to the provisions of the Workmen’s Compensation Law of Maryland. It is further ORDERED that statement of compensation paid be filed with this Commission in due time. EDWARD A. PALAMARA COMMISSIONER Koppers filed a timely appeal from this decision.

Its Petition, filed pursuant to Rule B2 e, alleged, among other things, that the Commission exceeded the powers granted it in that the Commission did not have jurisdiction to hear any further issues while the claim was already on appeal, as the Commission retained jurisdiction only with regard to additional medical treatment and attention, and that vocational rehabilitation and additional temporary total disability benefits are not such issues. This appeal was assigned case number 85-CG-4016. Koppers subsequently moved for summary judgment pursuant to Rule 2-501. After a hearing, Judge John E. Raine, Jr., ruled that it is beyond the jurisdiction of the Commission to make a supplemental award while an appeal on the same case is pending.

His “memorandum opinion” said: ⁷²⁷ It is the opinion of this Court that an Appeal, properly taken, removes matters from the jurisdiction of the Workmen’s Compensation Commission and prevents the Commission from making a Supplemental Award for the same injury being questioned on Appeal. While an Appeal is pending and a report is filed with the Commission from the Division of Vocational Rehabilitation, and under existing rules the Employer/Self-Insurer was required to controvert and they did so, but asked for no hearing and called attention to the pending Appeal, the Employer/Self-Insurer is entitled to have a decision on the initial Award of the Commission before required to confront the possibility of a Supplemental Award. Summary Judgment was granted and this appeal followed. Appellant avers that the trial judge’s opinion essentially holds that the taking of an appeal automatically deprives the Commission of jurisdiction to act in any matter pertaining to the claim while the appeal is pending.

He says this is contrary to the law as articulated by the Court of Appeals in Pressman v. Accident Fund, 246 Md. 406 , 228 A.2d 443 (1967), and by this Court in Trojan Boat Co. v. Bolton, 11 Md.App. 665 , 276 A.2d 413 (1971). Whether that is a reasonable interpretation of Judge Raine’s opinion is not important. This appeal is not from the opinion, but is from the judgment entered thereon. Thomas v. Dep’t of Health & Mental Hyg., 62 Md.App. 166, 172 , 488 A.2d 983, 986 (1985).

The same rule applies to appeals from the Commission to the circuit court. “An appeal is allowed, not from a finding or opinion of the Commission, but from its ‘decision’ disposing of the case.” Pressman, supra, 246 Md. at 415 , 228 A.2d 443 , quoting Furley v. Warren-Ehret Co., 195 Md. 339, 345 , 73 A.2d 497 (1950). In Pressman a hearing was held on April 3, 1964, at which the Commission determined the identity of the em ⁷²⁸ ployer and made an award for temporary total disability. No evidence was introduced and no finding was made as to whether the State Accident Fund was the insurer. The employee appealed to the Court of Common Pleas of Baltimore City.

While that appeal was pending, a further hearing was held before the Commission on the issue of insurance coverage. The Commission held the