Hahn Transportation, Inc. v. Gabeler

KENNEY, Judge. Hahn Transportation, Inc. and its workers’ compensation insurer, Zurich American Insurance Company (collectively referred to as “Appellants”), appeal the dismissal of their petition for judicial review by the Circuit Court for Frederick County. Appellants filed a petition to have the circuit court review a decision of the Maryland Workers’ Compensation Commission (“Commission”) awarding Thomas Gabeler (“Ga-beler”), appellee, additional temporary total disability benefits and care for alleged psychiatric symptoms that arose out of a job-related accidental injury. Appellants present two questions for our review, which we have consolidated into one: Did the trial court err or abuse its discretion in granting Gabeler’s motion to dismiss?

For the reasons below, we shall reverse the circuit court and remand for further proceedings. FACTUAL AND PROCEDURAL HISTORY Gabeler was employed by Hahn Transportation, Inc. as a driver. On April 28, 2001, while making a gas delivery in Glen Burnie, he was attacked by a drunk driver. He suffered injuries to his ribs, neck, right hand, and right knee, and was subsequently granted temporary total disability benefits by the Commission.

On February 26, 2002, Gabeler went before the Commission: 1) to have temporary total disability benefits granted for the period beginning November 14, 2001, through December 13, 2001, and for the period beginning January 25, 2002, through the present; and 2) to obtain authorization for psychological counseling based on the recommendation of a psychologist. ²¹⁵ The Commission, on March 6, 2002, issued an order extending the temporary total disability benefits as requested and authorizing the psychiatric counseling. On March 27, 2002, Appellants filed a petition for judicial review with the Circuit Court for Frederick County. The Commission transferred the record on May 30, 2002, pursuant to Maryland Rule 7-206(c). On June 20, 2002, and July 17, 2002, the Commission, pursuant to its continuing jurisdiction under § 9-742 of the Workers’ Compensation Act over medical treatment and temporary total disability benefits, held additional hearings. 1 After the first hearing, the Commission found that Gabeler was authorized to see additional doctors for evaluation and assessment and that he was entitled to continued temporary total disability benefits.

The second hearing authorized Gabeler to see additional doctors for evaluations and recommendations for a treatment plan. The Commissioner recognized that the subsequent hearings were causally related to the March 6, 2002 order. The Commissioner stated: I want the record to be clear that the parties are in agreement that there are-actually, they’re not additional issues. They really are part of the issues that have been presented and offered to begin with, but it’s apparent that the issues of continuation of prescription medications and the continuation of the claimant’s temporary total disability status are also issues that need to be decided by the Commission as well.

The June 24, 2002 order provided that ²¹⁶ as part of Commissioner Vincent’s Order of 3/6/02 the claimant is authorized to see Dr. Hertzberg for evaluation and assessment of the claimant’s medication needs and ORDERED that continuation for prescription medicine as prescribed by treating doctor is allowed and direct billiing [sic.] is to be arranged by the employer and insurer with claimant’s pharmacy of choice. It is further ORDERED that the employer and insurer advance unto the claimant the sum of $2,000.00; said advance shall be a credit against permanent partial disability and ORDERED that continuation of temporary total disability status is allowed. The July 17, 2002 order stated, in pertinent part, that referrals to Drs. Shin and Kaplan are authorized.

The referrals are for evaluations and the recommendations for a treatment plan. All medicals from Dr. Hertzberg, Dr. Cohen, and the functional capacity examination shall be made available so that a coordinated treatment plan can be developed. The treatment plan shall be authorized for a period of 60 days. Any additional treatment is subject to agreement of the parties or review by this Commission.

Treatment shall not be terminated without an Order of the Commission. Either party may request an emergency hearing on the issue of treatment. On February 2, 2003, the circuit court held a hearing to address Appellants’ petition for judicial review of the March 6, 2002 order. As of that date, neither the June 24, 2002, nor the July 17, 2002, orders or transcripts from the subsequent hearings had been transferred to the circuit court before the scheduled judicial review hearing.

For that reason, at the beginning of the hearing, Gabeler orally moved to dismiss. Relying on Md.Code (1991,1999 Repl.) § 9-739 and § 9-742 of the Labor and Employment Article (“LE”) and Title 7 of the Maryland Rules, Gabeler argued that Appellants had failed to file the entire record with the court, and, therefore, the case should be dismissed. Appellants countered that under the rules they did not “have any duty to supplement the record,” and therefore the motion should be denied. In the alternative, ²¹⁷ Appellants requested that the court grant a continuance so that the record could be supplemented.

After a short recess, the court granted the motion to dismiss, stating: Essentially, appellants have admitted that they never instructed the Commission to prepare a record and transmit it to the Circuit Court. Therefore, I don’t think that we can find substantial compliance and I don’t think unless you show substantial compliance that the burden shifts to the claimant to make a determination of showing a prejudicial effect, but obviously, I mean there is a prejudicial effect if, in fact, we go forward with the trial, as has been suggested we should, and there is no record here. There actually is no order here, there is no record here, there are no exhibits here. So, for those reasons, I have granted the motion to dismiss.

On February 24, 2003, the court entered a judgment, granting the motion to dismiss. On February 27, 2003, the supplemental documents from the hearings held on June 20, 2002, and July 17, 2002, were forwarded to the circuit court by the Commission. Appellants noted this timely appeal. 2 ²¹⁸ DISCUSSION 3 Appellants first argue that the appropriate record in the case was timely transmitted to the circuit court pursuant to the Maryland Rules, and, thus, the court committed legal error in dismissing the case on that ground. In the alternative, Appellants argue that the court abused its discretion in dismissing the appeal because they had substantially complied with the Rules.

The procedures on appeal from a decision of the Workers’ Compensation Commission are governed by LE § 9-700 et seq. Section 9-739(a) states: “A certified copy of the record of the proceedings of the Commission, including any transcript of testimony, a statement of facts in place of the record, or stipulations shall be filed with the circuit court in accordance with Title 7 of Maryland Rules.” Section 9-742 (2003 Supp.) states, in pertinent part: (a) In general.—The Commission retains jurisdiction pending an appeal to consider: (1) a request for additional medical treatment and attention; and (2) a request for temporary total disability benefits, provided that the covered employee’s temporary total disability benefits were granted in the order on appeal, and were terminated by the insurer or self-insurer pending adjudication or resolution of the appeal. (b) Supplemental order.—(1) If the Commission finds that a covered employee needs additional medical attention pending an appeal, the Commission may pass a supplemental order requiring the employer to provide additional medical treatment and attention. (2) If the Commission finds that a covered employee’s temporary total disability benefits were terminated pending ²¹⁹ adjudication or resolution of the appeal, and that the employee was temporarily totally disabled at the time of termination, the Commission may pass a supplemental order requiring the employer to provide the employee with temporary total disability benefits.

(3) If the Commission’s decision to reinstate temporary total disability benefits is reversed or modified on appeal, the insurer or self-insurer shall be entitled to an offset or credit for overpayment of the temporary total disability benefits granted in the supplemental order. (c) Review on pending appeal.—A supplemental order passed by the Commission under this section is subject to review on the pending appeal. Although supplemental orders extending temporary total benefits and providing for additional medical treatment are “subject to review on the pending appeal,” subsection (c) does not indicate that a second petition for judicial review is necessary and it does not address with whom, the petitioner or the agency, lies the obligation to initiate the transfer of the record related to supplemental orders to the court. Maryland Rule 7-206 governs the transmittal of a record in cases of judicial review of administrative agency decisions and states, in pertinent part: (a) Contents; expense of transcript.

The record shall include the transcript of testimony and all exhibits and other papers filed in the agency proceeding, except those papers the parties agree or the court directs may be omitted by written stipulation or order included in the record. If the testimony has been recorded but not transcribed before the filing of the petition for judicial review, the first petitioner, if required by the agency and unless otherwise ordered by the court or provided by law, shall pay the expense of transcription, which shall be taxed as costs and may be apportioned as provided in Rule 2-603. A petitioner who pays the cost of transcription shall file with the agency a certification of costs, and the agency shall include the certification in the record. ²²⁰ * H: (c) Time for transmitting. Except as otherwise provided by this Rule, the agency shall transmit to the clerk of the circuit court the original or a certified copy of the record of its proceedings within 60 days after the agency receives the first petition for judicial review.[ 4 ] (d) Shortening or extending the time.

Upon motion by the agency or any party, the court may shorten or extend the time for transmittal of the record. The court may extend the time for no