McLaughlin v. Gill Simpson Electric

WATTS, J. This appeal stems from an order of the Circuit Court for Baltimore County affirming the Workers’ Compensation Commission’s (the “Commission”) denial of a Petition to Reopen 1 appellant Martin McLaughlin’s workers’ compensation claim. Appellant noted an appeal raising one issue, which we rephrase: 2 ²⁴⁸ Whether the Workers’ Compensation Commission erred in ruling that appellant’s withdrawal of the Issues filed in conjunction with the Petition to Reopen constituted a withdrawal of the petition? We answer this question in the negative, and, therefore, shall affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND Before this Court, appellees, Gill Simpson Electric and Zurich American Insurance Company, and appellant presented an agreed statement of facts, which we quote: On November 9, 2002, [ajppellant [ ] sustained a compensable work related injury to his back.

Following a course of treatment, a hearing was held on the nature and extent of any permanent disability that [appellant] suffered as a result of the injury. On February 26, 2004, the Workers’ Compensation Commission found [ajppellant sustained a 25% disability under “other causes” for injuries related to his back, with 20% related to the accident and 5% related to pre-existing conditions. The award entitled [ajppellant to 100 weeks of payments (less attorney’s fees and expenses) and was properly paid by [ajppellees. It is agreed that the last payment of compensation to [ajppellant was July 27, 2004.

On February 15, 2005, [ajppellant properly filed a Petition to Reopen under Section 9-736 of the Labor & Employment Article.[ 3 ] In addition, [ajppellant filed an Issue Sheet asking for Authorization for Medical Treatment. At that time, [ajppellees agreed that the medical treatment was causally ²⁴⁹ related, reasonable and necessary. At that point, with no hearing necessary, [ajppellant filed a withdrawal of the Issues at the Commission and no hearing was held. During the next few years, various [Ijssues arose between the parties regarding the payment and provision of medical treatment.

The parties were able to resolve these [Ijssues without a hearing and, each time, the [Ijssues were withdrawn by [ajppellant and no hearing was held. On September 22, 2009, [ajppellant obtained a permanency evaluation from the same physician who rated him for the prior permanency hearing in 2004. On October 22, 2009, [ajppellant filed Issues with the Commission requesting a hearing on the issue of “Worsening-Back”. Appellees filed an Issue sheet with the Commission on the issue of “Is this claim barred by 9-736, since the last payment of compensation took place o[n] 7/24/04?” After a hearing, on January 14[ ], 2010, the Commission found, inter alia: [TJhat the Petition to Reopen for Worsening of Condition is barred by Limitations: The Order of permanent partial disability is dated 2/26/04 and the final payment of that Award was 7/27/04.

The claimant filed a Petition to Reopen for Worsening of Condition on 2/15/05, but those [Ijssues were withdrawn on 3/30/05. No new [Ijssues for worsening of condition were filed until 10/22/09, more than five years after the last indemnity payment. (Emphasis added). On February 4, 2010, appellant timely filed a Petition for Judicial Review.

On September 24, 2010, appellant filed a motion for summary judgment. On November 1, 2010, appellees filed “Employer and Insurer’s Re[ Jsponse to Claimant’s M[ Jotion for Summary Judgment and Cross-Motion for Summary Judgment by the Employer and Insurer.” In a memorandum in support of the cross-motion for summary judgment, appellees argued that appellant’s “[wjithdrawal of Issues [wajs [tjantamount to a [wjithdrawal of the Petition to Reopen.” On ²⁵⁰ February 8, 2011, the circuit court held a hearing on the motions. On April 25, 2011, the circuit court issued an Opinion and Ruling, granting appellee’s cross-motion for summary judgment and affirming the Commission’s January 14, 2010 order. The circuit court found that appellant’s withdrawal of the Issues constituted a withdrawal of the Petition to Reopen.

DISCUSSION Appellant contends that the circuit court erred in granting the cross-motion for summary judgment and in finding that withdrawal of the Issues filed with the Commission constituted a withdrawal of the Petition to Reopen. Appellant argues that, because the filing of Issues is governed by the Code of Maryland Regulations (COMAR) and a Petition to Reopen is filed pursuant to the Maryland Annotated Code, the withdrawal of the Issues is not a withdrawal of the petition. Appellant asserts that the “doctrine of liberal construction” applies in this case, requiring that all provisions in the Workers’ Compensation Act be construed liberally in his favor. Relying on Dove v. Montgomery Cnty.

Bd. of Educ., 178 Md.App. 702, 716-17 , 943 A.2d 662 (2008), appellant maintains that it was not necessary for the Issues to be filed simultaneously with the petition, as claimants are not required to provide specific information in support of a Petition to Reopen. Appellant argues that, pursuant to Buskirk v. C.J. Langenfelder & Son, Inc., 136 Md.App. 261, 271 , 764 A.2d 857 (2001), the Petition to Reopen tolled the statute of limitations because the petition alleged a change in his disability status. Appellees respond that the withdrawal of the Issues constituted a withdrawal of the Petition to Reopen. Appellees contend that the allegation of a change in disability status in a Petition to Reopen must be accompanied by the submission of Issues at the time of filing.

Relying on Dove, 178 Md.App. at 719 , 943 A.2d 662 , appellees argue that the Issues constituted the “basis in fact” necessary to support the Petition to Reopen. Appellees assert that, even if the withdrawal of the Issues was not the equivalent of a withdrawal of the Petition ²⁵¹ to Reopen, appellant failed to timely file facts in support of the petition, as the most recent Issues were not filed until after the expiration of the statute of limitations. Appellees maintain that the doctrine of liberal construction does not apply to the statute of limitations provision of the Workers’ Compensation Act, as codified in the Labor and Employment Article of the Maryland Annotated Code. Appellant replies that the holding in Buskirk, 136 Md.App. at 263-64 , 764 A.2d 857 , regarding a “basis in fact,” requires only that the claimant have a factual basis for the claim, not that the factual basis be specifically set forth at the time of filing the Petition to Reopen.

Standard of Review Generally, in an appeal from judicial review of an agency action, we review the agency action directly, not the decision of the trial court. Anderson v. Gen. Cas. Ins.

Co., 402 Md. 236, 244 , 935 A.2d 746 (2007) (citing Watkins v. Sec’y, Dep’t of Pub. Safety & Corr. Servs., 377 Md. 34, 45-46 , 831 A.2d 1079 (2003)); Dep’t of Labor, Licensing & Regulation v. Muddiman, 120 Md.App. 725, 733 , 708 A.2d 47 (1998). “We must respect the expertise of the agency and accord deference to its interpretation of a statute that it administers ...; however, we ‘may always determine whether the administrative agency made an error of law.’ ” Watkins, 377 Md. at 46 , 831 A.2d 1079 (citation omitted). “[W]e must determine whether the agency’s decision is in accordance with the law or whether it is arbitrary, illegal, and capricious.” Uninsured Employers’ Fund v. Pennel, 133 Md.App. 279, 288 , 754 A.2d 1120 (2000) (citations and internal quotation marks omitted). If an agency’s decision is predicated solely on an error of law, including errors in statutory interpretation, we may substitute our judgment for that of the administrative agency.

Charles Cnty. Dept. of Soc. Servs. v. Vann, 382 Md. 286, 295 , 855 A.2d 313 (2004); Kelly v. Consol. Delivery Co., 166 Md.App. 178, 185 , 887 A.2d 682 (2005), cert. denied, 393 Md. 161 , 900 A.2d 206 (2006).

The substituted judgment standard is equally ²⁵² applicable to the regulations of an agency. Pennel, 133 Md. App. at 288 , 754 A.2d 1120 . Judicial review of the Commission’s decisions is governed by Md.Code Ann., Labor and Employment Art. (“L.E.”) § 9-745, which provides, in pertinent part: (c) Determination by court.—The court shall determine whether the Commission: (1) justly considered all of the facts about the accidental personal injury, occupational disease, or compensable hernia; (2) exceeded the powers granted to it under this title; or (3) misconstrued the law and facts applicable in the case decided. (d) Request for jury trial.—On a motion of any party filed with the clerk of the court in accordance with the practice in civil cases, the court shall submit to a jury any question of fact involved in the case.

(e) Disposition.— (1) If the court determines that the Commission acted within its powers and correctly construed the law and facts, the court shall confirm the decision of the Commission. (2) If the court determines that the Commission did not act within its powers or did not correctly construe the law and facts, the court shall reverse or modify the decision or remand the case to the Commission for further proceedings. Under the statutory scheme, “an appeal from the Workers’ Compensation Commission may follow two alternative modalities” in the trial court. Simmons v. Comfort Suites Hotel, 185 Md.App. 203, 224 , 968 A.2d 1123 (2009) (citation and internal quotation marks omitted).

The modality outlined in L.E. § 9-745(d) provides for an “ ‘essential trial de novo [.]’ ” Id. at 225, 968 A.2d 1123 (citation omitted). Trial courts employ the trial de novo where the question on review is “concerned only with findings of fact.” Bd. of Educ. v. ²⁵³ Spradlin, 161 Md.App. 155, 178 , 867 A.2d 370 (2005). When the trial court holds an essential trial de novo under L.E. § 9-745(d) to resolve a question of fact, the trial court has acted as a trier of fact, and, as a result, we review the decision of the trial court as we would in any other bench trial. See Turner v. State, Office of Public Defender, 61 Md.App. 393, 405 , 486 A.2d 804 (1985).

The other modality is employed where an appellate court reviews questions of legal error. Spradlin, 161 Md.App. at 173 , 867 A.2d 370 . In such cases, judicial review is controlled by L.E. § 9-745(c) and (e), 4 “replicat[ing] the routine appeal process from administrative agency decisions generally.” Applicable Law The Maryland Workers’ Compensation Act is remedial and, as a result, is generally interpreted liberally in favor of the claimant. Harris v. Bd. of Educ., 375 Md. 21, 37-38 , 825 A.2d 365 (2003) (quoting Victory Sparkler & Specialty Co. v. Francks, 147 Md. 368, 382 , 128 A. 635 (1925)).

The Court of Appeals has noted that “[although remedial statutes are[ ] to be given a liberal construction, the predominant goal of the Court is to ascertain and implement the legislative intent[.]” Arundel Corp. v. Marie, 383 Md. 489, 502 , 860 A.2d 886 (2004). Where the statutory language is plain and free from ambiguity, and expresses a definite and simple meaning, courts do not normally look beyond the words of the statute itself to determine legislative intent. If the words of the statute are susceptible to more than one meaning, it is necessary to consider their meaning and effect in light of the setting, the objectives and [the] purpose of the enactment. Therefore, ²⁵⁴ we construe the statute as a whole and interpret each of its provisions in the context of the entire statutory scheme.

Md. Ins. Admin. v. Md. Individual Practice Assn., Inc., 129 Md.App. 348, 355 , 742 A.2d 22 (1999) (alteration in original) (citations and internal quotation marks omitted). Where the statute in question contains no ambiguity, the intent of the legislature is clear and the doctrine of liberal construction does not apply. See Arundel Corp., 383 Md. at 502 , 860 A.2d 886 .

The modification of a disability award by the Commission is governed by L.E. § 9-736, which provides, in pertinent part: (a) Readjustment of rate of compensation.—If aggravation, diminution, or termination of disability takes place or is discovered after the rate of compensation is set or compensation is terminated, the Commission, on the application of any party in interest or on its own motion, may: (1) readjust for future application the rate of compensation; or (2) if appropriate, terminate the payments. (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) ... [T]he 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.

(Emphasis added). Despite the general tendency toward liberal interpretation of the Workers’ Compensation Act, the statute of limitations in L.E. § 9-736(b)(3) is to be strictly construed. Stevens v. Rite-Aid Corp., 340 Md. 555, 568 , 667 ²⁵⁵ A.2d 642 (1995) (citing Montgomery Cnty. v. McDonald, 317 Md. 466, 472 , 564 A.2d 797 (1989)). The statute of limitations, “in one form or another, has been a part of the Workers’ Compensation Act since its inception in 1914.” Vest v. Giant Food Stores, Inc., 329 Md. 461, 472 , 620 A.2d 340 (1993) (citation omitted). “[B]y enacting a limitations provision, the General Assembly restricted the Commission’s ability to exercise its authority to reopen prior awards.” Id. at 476 , 620 A.2d 340 .

Thus, “[a]fter five years from the last payment of compensation, [L.E.] § [9-736(b)(3) ] divests the Commission of any authority to exercise its otherwise broad reopening powers.” 5 Id. at 475, 620 A.2d 340 . To toll the five year statute of limitations included in L.E. § 9—736(b)(3), a claimant must file a Petition to Reopen specifically alleging a change in disability, not simply continuing medical treatment. Buskirk, 136 Md.App. at 263-64 , 764 A.2d 857 . The Commission is granted the power to promulgate regulations pursuant to L.E. §§ 9-309 and 9-701.

L.E. § 9-309(a) provides generally that “[t]he Commission may adopt regulations to carry out [][T]itle[ 9 of the Maryland Annotated Code.]” L.E. § 9-701 provides, more specifically: Subject to [ ][T]itle[ 9 of the Maryland Annotated Code], the Commission shall: (1) adopt reasonable and proper regulations to govern the procedures of the Commission, which shall be as simple and brief as reasonably possible; (2) determine the nature and the form of an application for benefits or compensation; ²⁵⁶ (3) regulate and provide for the nature and form of notices and for the service of notices; (4) regulate and provide for the nature and extent of evidence and proof and for the method of taking and providing evidence and proof to establish a right to compensation; (5) regulate the method of conducting an investigation or physical examination; and (6) set the time within which an adjudication or award shall be made. Pursuant to this grant of authority, in order to administer L.E. § 9-736, the Commission has enacted several applicable regulations which are contained in COMAR, Title 14, Section 9. COMAR 14.09.01.16 provides, 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 modification.

C. When the movant seeks an increase in a prior award for permanent partial disability, the parties shall comply with Regulations .10,[ 6 ] .12, and .14A.[ 7 ] (Emphasis added). COMAR 14.09.01.12A, in turn, instructs that “[a] claimant alleging permanent disability shall file with ²⁵⁷ the Commission an issue expressly claiming permanent disability.” (Emphasis added). “[W]ith regard to the validity of a regulation promulgated by an administrative agency, the governing standard is whether the regulation is consistent with the letter and spirit of the law under which the agency acts.” Lussier v. Md. Racing Comm’n, 343 Md. 681, 687 , 684 A.2d 804 (1996) (citations and internal quotation marks omitted). Once that determination is made, “a substantive or legislative rule, pursuant to properly delegated authority, has the force of law, and creates new law or imposes new rights or duties.” Sec’y, Dep’t of Pub. Safety & Corr.

Servs. v. Demby, 390 Md. 580, 606 , 890 A.2d 310 (2006) (citations omitted). Analysis In this case, the parties agree that there is no dispute of material facts. The request for judicial review of the Commission’s decision involved only whether the withdrawal of the Issues submitted with the Petition to Reopen constituted a withdrawal of the petition itself, and thus whether the October 22, 2009, filing was barred by L.E. § 9-736(b)(3). Because our review concerns a question of law, specifically one of statutory interpretation, we review the Commission’s decision de novo.

Kelly, 166 Md.App. at 185 , 887 A.2d 682 . On July 27, 2004, the last compensation payment was made to appellant. Under the statute of limitations in L.E. § 9-736(b)(3), the Commission was divested of authority to modify the award five years from that date, unless a Petition to Reopen alleging a change in disability was properly filed. Vest, 329 Md. at 475 , 620 A.2d 340 ; Buskirk, 136 Md.App. at