Frederick County Board of Commissioners v. Sautter

EYLER, Judge. The question presented by this appeal is whether the Circuit Court for Frederick County erred in dismissing a petition for judicial review of a decision by the Workers’ Compensation Commission (Commission) on the ground that the petition had not been timely filed. We hold that the circuit court did err, reverse the judgment entered by it, and remand for further proceedings. Factual Background On October 3, 1996, Charlotte Sautter, appellee, filed a workers’ compensation claim against Frederick County Board of Commissioners, employer, and Great American Insurance Companies, insurer, appellants, as the result of an alleged injury sustained on August 23, 1993.

Pursuant to Md.Code (1991 Repl.Vol.), Labor & Employment Article (LE), § 9-713, the Commission notified appellants that they had until October 28, 1996, to respond to the claim. That date, in workers’ compensation law, is known as the “consideration date.” 1 Appellants did not respond by that date, and the Commission, on November 6, 1996, issued an order finding that appellee had sustained an accidental injury arising out of and in the course of employment. The order noted that appellee’s average weekly wage was not reported, and further, that the ⁴⁴⁴ nature and extent of disability sustained, if any, could not be determined at that time. The order further provided that the claim for compensation “be held pending until such time as the nature and extent of the claimant’s disability, if any, can be determined.” When notice of the filing of the claim arrived at the insurer’s office, the adjuster who normally would have responded was out of the office due to surgery.

After returning to the office, the adjuster, on November 11, 1996, filed a notice raising the following issues: (1) did appellee sustain an accidental personal injury arising out of and in the course of employment; (2) is the disability of the appellee the result of an accidental personal injury arising out of and in the course of employment; (3) is the claim barred by the statute of limitations; (4) what is the amount of average weekly wage; and (5) other issues to be raised at the time of a hearing. On November 20, 1996, counsel for appellants filed with the Commission one of the Commission’s printed forms entitled, “Request for Reopening, Reconsideration, or Rehearing.” Under a heading, “Type Action Requested,” the following options appeared: Reopening due to a worsening of the claimant’s condition. Reconsideration of a former decision, order, or award of the Commission. Rehearing.

A box appeared to the left of each of the options. The box beside the reconsideration option was checked. On another location on the form, under the heading, “Justification/Reason for Request,” the following information was typed: Claim form came in while responsible supervisor was disabled from excruciating neck pain. Responsible supervisor ultimately had serious neck surgery, but immediately upon return filed issues.

There are serious and material issues including Statute of Limitations, accidental injury and causal relationship. The Commission scheduled a hearing for January 15, 1997. Prior to that date, counsel for appellee requested a postpone ⁴⁴⁵ ment, counsel for appellants consented, and the hearing was postponed. On January 27, 1997, in an order referring to appellants’ motion as a “motion for rehearing,” the Commission denied appellants’ request.

On February 13, 1997, appellants filed a petition for judicial review in the Circuit Court for Frederick County. Appellee filed a motion to dismiss the petition on the ground that more than 30 days had elapsed between the November 6,1996 order and the filing of the petition, and thus, the petition was untimely. Appellants opposed the motion to dismiss and also filed a motion for summary judgment seeking an order that the claim be remanded to the Commission for a hearing on the issues raised by appellants. The circuit court granted appellee’s motion to dismiss and denied appellants’ motion for summary judgment.

In doing so, the circuit court held that appellants had filed a request for reconsideration, not a motion for rehearing. The circuit court explained that the request could not be for a rehearing because there never had been a hearing; consequently, a request for reconsideration was the only option available to appellants. Because workers’ compensation law tolls the time for filing a petition for judicial review only with respect to a motion for rehearing and not a motion for reconsideration, the circuit court dismissed the petition. Appellants noted a timely appeal to this court.

Discussion Although neither party raised the issue of finality of the Commission’s decision, and indeed, both maintain that it is a final order, we believe that, preliminarily, we should comment on its finality and consequent appealability. See Montgomery County v. Ward, 331 Md. 521 , 526 n. 6, 629 A.2d 619 (1993) (noting that the finality of an administrative order, while not affecting a trial court’s jurisdiction of a petition to review the order, should be treated like a jurisdictional question, and thus, should be addressed by the Court sua sponte). “ ‘[FJinal order’ or ‘final action,’ within the ambit of the Workmen’s Compensation Law, means an order or award ⁴⁴⁶ made by the Commission in the matter then before it, determining issues of law and of fact necessary for a resolution of the problem presented in that particular proceeding and which grants or denies some benefit under the Act.” Paolino v. McCormick & Co., 314 Md. 575, 583 , 552 A.2d 868 (1989) (quoting Great American Ins. Co. v. Havenner, 33 Md.App. 326, 332 , 364 A.2d 95 (1976)) (emphasis in original). See also Murray Intern.

Freight Corp. v. Graham, 315 Md. 543, 553 , 555 A.2d 502 (1989). The Court of Appeals has noted that “[a] ‘benefit,’ as those cases employ the word, means a grant of an award under Article 101 [predecessor to LE Title 9], or something equivalent thereto.... ” Murray International, 315 Md. at 553 n. 6, 555 A.2d 502 . We view a finding that the claimant sustained an accidental injury arising out of and in the course of employment to meet this definition of benefit. By- virtue of such a finding, the employer becomes liable for providing the claimant with medical services and treatment.

See LE § 9-660. Pursuant to LE § 9-737 and Maryland Rule 7-203(a), a party seeking judicial review of a decision of the Commission must file a petition for judicial review in the circuit court within thirty days after the date of the Commission’s order. If, within fifteen days of the Commission’s order, a party files with the Commission a motion for rehearing pursuant to LE § 9-726, the time for seeking judicial review does not begin to run until the Commission disposes of the motion for rehearing. 2 ⁴⁴⁷ Appellants filed their petition for judicial review well over thirty days after the Commission’s November 6, 1996 order, the subject of the petition for judicial review. Accordingly, appellants’ petition was filed timely only if their filing on November 20, 1996 was a motion for rehearing that extended the time for seeking judicial review.

Appellants assert that their filing was a motion for rehearing. Appellee asserts that appellants’ filing was a motion for reconsideration, pursuant to LE § 9-736, 3 which did not extend the time for judicial review. Before we more particularly address each of the parties’ respective contentions, we shall briefly set forth some basic distinctions between motions for rehearing, motions for reconsideration and motions for reopening as those terms are ⁴⁴⁸ used in the context of worker’s compensation law. “Motion for rehearing” is a term used in LE Title 9 to describe only motions filed pursuant to LE § 9-726. As noted above, such motions extend the time for seeking judicial review, and must be filed within fifteen days of the Commission’s order.

In addition, such motions must be grounded on either an error of law or newly discovered evidence. See LE § 9 — 726(d)(3) and COMAR 14.09.01.14.D. The purpose of such motions is to reduce the number of judicial reviews by giving the Commission one last chance to review its decision. See Stinnett v. Cort Furniture Rental, 315 Md. 448, 453-55 , 554 A.2d 1226 (1989). Neither “motion for reconsideration” nor “motion for reopening” are terms expressly used in Title 9.

Those terms, however, generally refer to motions filed pursuant to LE § 9-736. As noted above, LE § 9-736 is comprised of two subsections governing applications for changes or modifications to the Commission’s orders. LE § 9-736(a) governs applications for the termination of compensation or the readjustment for future application of the rate of compensation, based upon changes in the claimant’s condition. LE § 9-736(b) is a more general provision regarding the Commission’s continuing jurisdiction over claims.

It provides that, for a period of five years from the last compensation payment, LE § 9 — 736(b)(3), “the Commission may modify any finding or order as the ' Commission considers justified.” LE § 9-736(b)(2). The five year limitations period located in LE § 9-736(b)(3) has been held to apply to the Commission’s power to modify orders under LE § 9-736(a) as well. See Stevenson v. Hill, 170 Md. 676, 684 , 185 A. 551 (1936) (discussing Md.Code (1924, as amended by ch. 236, Acts of 1935), Art. 101, § 54, predecessor to LE § 9-736(b), and Art. 101, § 43, predecessor to LE § 9-736(a)); Ireland v. Shipley, 165 Md. 90 , 166 A. 593 (1933) (same). 4 ⁴⁴⁹ As discussed in Stevenson, supra, LE § 9-736(b) is not merely descriptive of the Commission’s power to modify awards under LE § 9-736(a). Instead, it is a separate and distinct source of the Commission’s power to modify its own orders. 170 Md. at 684 , 185 A. 551 .

Thus, subsection (b), or its statutory predecessor, has been used by the Commission to revisit issues already decided by it. See, e.g., Charles Freeland & Sons, Inc. v. Couplin, 211 Md. 160 , 126 A.2d 606 (1956) (regarding Md.Code (1951), Art. 101, § 53). The Commission need not find an error of law or newly discovered evidence before it reviews a prior decision under this subsection. We also have used subsection (b) to refer to a review based upon a change in a claimant’s condition when the issue to be decided does not involve an adjustment of the rate of compensation.

See Luby Chevrolet, Inc. v. Gerst, 112 Md.App. 177 , 684 A.2d 868 (1996) (regarding claimant’s petition to reopen for additional medical benefits related to claimant’s worsening of condition). See also Holy Cross Hosp. of Silver Spring, Inc. v. Nichols, 290 Md. 149 , 428 A.2d 447 (1981) (Md.Code (1957, 1979 Repl.Vol., 1980 Cum.Supp.), Art. 101, § 40(c) used to reopen claim for additional medical benefits, but limitations period located therein was construed not to govern medical benefits). Regardless of whether the action sought is a review of prior findings or orders or the consideration of new issues based on a claimant’s change in condition, the cases all refer to actions taken pursuant to LE §§ 9-736(a) or (b), or their statutory predecessors, in terms of “reopening.” See generally, e.g., Mayor and City Council of Baltimore v. Schwing, 351 Md. 178 , 717 A.2d 919 , (1998); Stevens v. Rite-Aid Corp., 340 Md. 555 , 667 A.2d 642 (1995); Vest v. Giant Food Stores, Inc., 329 Md. 461 , 620 A.2d 340 (1993); Holy Cross Hosp., 290 Md. at 149 , 428 A.2d 447 ; Charles Freeland, 211 Md. at 160 , 126 A.2d 606 ; Stevenson, 170 Md. at 676 , 185 A. 551 ; Ireland , 165 Md. ⁴⁵⁰ at 90, 166 A. 593 ; Luby, 112 Md.App. at 177 , 684 A.2d 868 . The pertinent regulations, by contrast, do not reference the reopening procedure.

Instead, they refer only to motions for reconsideration. In particular, COMAR § 14.09.01.16.A provides that “[a] party seeking modification of a prior finding or order shall file with the Commission a motion for reconsideration.” The form motion contained in this record reveals that the Commission distinguishes between reopening and reconsideration. It uses “motion for reconsideration” to refer to motions requesting the Commission to review its prior findings and orders while it uses “motion for reopening” to refer to motions requesting the Commission to review a claim based on a worsening of the claimant’s condition. Although the form does not so indicate, presumably the Commission would similarly use the term “reopening” to refer to a review of a claim based upon the diminution of a claimant’s disability.

As noted earlier, motions filed under LE § 9-736 do not extend the parties’ time for seeking judicial review. If the Commission takes the action of vacating its prior order, however, its new order becomes one from which the parties may seek such review. See Charles Freeland, 211 Md. at 168 , 126 A.2d 606 (review on merits is permitted when Commission reopens pursuant to Md.Code (1951), Art. 101, § 53 and then reaffirms its prior order); Institute of Mission Helpers v. Beasley, 82 Md.App. 155, 162 , 570 A.2d 382 (1990) (when Commission agreed to consider the request for modification under Md.Code (1957), Art. 101, § 40(c) (predecessor to LE § 9-736(b)), the order it was reviewing lost its finality so time for judicial review was not running). But see Ratcliffe v. Clarke’s Red Barn, 64 Md.App. 293 , 494 A.2d 983 (1985) (judicial review not permitted when Commission reopened claim for sole purpose of attempting to revive claimant’s