Montgomery Cnty. Md. v. Rios

Montgomery County, Maryland v. Fernando Rios, No. 2642, September Term 2018. Opinion by Beachley, J. WORKERS’ COMPENSATION—STATUTE OF LIMITATIONS Rios filed a request for modification of his workers’ compensation award, alleging permanent partial disability, less than one month before the expiration of the statute of limitations. At the time of filing, he had not yet obtained a medical evaluation for permanent impairment as required by COMAR 14.09.09.02B. He obtained the medical evaluation prior to the hearing but after the statute of limitations had expired.

The Workers’ Compensation Commission held that Rios’s claim was not barred by the statute of limitations and awarded the modification. The County noted a record appeal to the Circuit Court for Montgomery County, alleging that Rios’s claim was barred by the statute of limitations due to Rios’s failure to obtain the medical evaluation prior to the expiration of limitations. The circuit court affirmed the Commission’s decision, and the County appealed. Held: Judgment affirmed.

Section 9-736(b)(3) of the Labor and Employment Article only requires that the modification of the award be “applied for” within the limitations period. Consistent with Gang v. Montgomery Cty., 464 Md. 270 (2019), which held that failure to file a Motion for Modification form required under COMAR within the limitations period does not bar an otherwise timely claim, Rios was likewise not required to have a written medical evaluation prior to the expiration of limitations. Thus, the Court rejected the County’s argument that COMAR imposed an additional requirement— obtaining a written medical evaluation—to satisfy limitations as prescribed by LE § 9- 736(b)(3). Furthermore, the Court rejected the County’s argument that, absent a written medical evaluation, Rios could not have a “basis in fact” for his modification request as required by Buskirk v. C.J. Langenfelder & Son, Inc., 136 Md. App. 261 (2001).

Circuit Court for Montgomery County Case No. 442473V REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2642 September Term, 2018 MONTGOMERY COUNTY, MARYLAND v. FERNANDO RIOS Beachley, Wells, Adkins, Sally D. (Senior Judge, Specially Assigned), JJ. Opinion by Beachley, J. Filed: February 28, 2020 *Gould, Steven B., J., did not participate in the Court’s decision to designate this opinion for publication pursuant to Maryland Rule 8-605.1. Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2020-03-02 12:55-05:00 Suzanne C. Johnson, Clerk The Workers’ Compensation Commission (“Commission”) granted appellee Officer Fernando Rios’s request for modification of a prior award for permanent partial disability benefits, implicitly finding that the claim was not barred by limitations.

Appellant/employer Montgomery County noted a record appeal to the Circuit Court for Montgomery County, which affirmed the Commission’s decision. In this Court, Montgomery County presents a single question, which we have rephrased: Is Officer Rios’s claim barred by the applicable five-year statute of limitations because he did not obtain a medical evaluation for permanent impairment as required by COMAR until after the expiration of limitations? We answer this question in the negative and affirm. FACTUAL AND PROCEDURAL BACKGROUND Officer Rios was employed as a police officer by Montgomery County.

During the course of his work, he suffered an injury to his left shoulder while trying to subdue a suspect. The Commission found his injury compensable in an Order dated May 20, 2009. On September 24, 2012, Rios received a supplemental award of compensation. Rios received the last payment on that award on October 8, 2012.

On September 15, 2017, Rios filed a Request for Modification with the Commission, alleging worsening of his left shoulder and requesting additional temporary total disability benefits and an increase in permanent disability. Rios had not obtained a physician’s written evaluation of permanent impairment at the time he filed his Request for Modification. A hearing was originally scheduled for November 27, 2017, but was continued at Rios’s request to December 20, 2017. Rios requested the continuance because his medical evaluation for permanent impairment was scheduled for November 29, 2017, two days after the original hearing date.

At the December 20, 2017 hearing, Montgomery County asserted that Rios’s Request for Modification was barred by limitations because the medical evaluation for permanent impairment was not completed until after the applicable five-year statute of limitations had run. Following the hearing, the Commission found that Rios was entitled to an increase in permanent partial disability. The Commission’s decision did not expressly address the limitations issue. Dissatisfied with the Commission’s decision, Montgomery County noted an “on the record” appeal to the Circuit Court for Montgomery County.1 After the circuit court affirmed, Montgomery County timely noted this appeal.

DISCUSSION We recently stated the appropriate standard of review for “on the record” appeals from the Commission: When reviewing workers’ compensation awards in cases where the claimant sought review on the record (rather than a de novo review involving a new evidentiary hearing), we look through the decision of the circuit court and evaluate the Commission’s decision directly. W.R. Grace & Co. v. Swedo, 439 Md. 441 , 452–53 (2014). Our task is “to determine whether the Commission: (1) justly considered all of the facts about the . . . occupational disease . . . ; (2) exceeded the powers granted to it under [the Act]; or (3) misconstrued the law and facts applicable in the case decided.” LE § 9- 745(c).[2] “The court must confirm the decision unless it determines that the Commission exceeded its authority or misconstrued the law or facts.” 1 Rios filed a cross-petition for judicial review in the circuit court, which he dismissed in December 2019. 2 All statutory references herein are to the Labor and Employment Article of the Maryland Code (1957, 2016 Repl. Vol.). 2 Richard Beavers Constr., Inc. v. Wagstaff, 236 Md. App. 1, 13 (2018) (citing Uninsured Empl’rs’ Fund v. Pennel, 133 Md. App. 279 , 288–89 (2000)).

Montgomery Cty. v. Cochran, 243 Md. App. 102, 112 (2019) (alterations in original), cert. granted, No. 379, Sept. Term, 2019 (Md. Feb. 11, 2020). A determination that a claim is barred by the statute of limitations “is ordinarily a mixed question of law and fact.” Dove v. Montgomery Cty. Bd. of Educ., 178 Md. App. 702, 712 (2008) (quoting James v. Weisheit, 279 Md. 41, 46 (1977)). In this case, because the parties agree that the relevant facts are not in dispute, the limitations issue is purely a question of law.

Thus, “[i]n an appeal of a workers’ compensation case, when the issue presented is an issue of law, ‘we review the decision de novo, without deference to the decisions of either the Commission or the circuit court.’” Zakwieia v. Balt. Cty. Bd. of Educ., 231 Md. App. 644, 648 (2017) (quoting Long v. Injured Workers’ Ins. Fund, 225 Md. App. 48, 57 (2015)).

The Maryland Workers’ Compensation Act (“the Act”) was enacted in 1914 with the purpose of “protect[ing] workers and their families from hardships inflicted by work- related injuries by providing workers with compensation for loss of earning capacity resulting from accidental injury arising out of and in the course of employment.” Gang v. Montgomery Cty., 464 Md. 270, 278 (2019) (quoting Roberts v. Montgomery Cty., 436 Md. 591, 603 (2014)). The Act created the Workers’ Compensation Commission to administer the law. Id. at 279 (quoting Egeberg v. Md. Steel Prods. Co., 190 Md. 374, 379 (1948)); LE § 9-301.

The General Assembly provided the Commission “‘with the power to carry out the intent of the Act[,]’ such that its ‘jurisdiction includes the authority to approve 3 claims, reopen cases, make determinations on employment relationships, determine liability of employers, award lump sum payments, approve settlements, [and] award fees for legal services, funeral expenses, and medical services.’” Gang, 464 Md. at 279 (quoting Temp. Staffing, Inc. v. J.J. Haines & Co., Inc., 362 Md. 388, 400 (2001)); LE § 9-309, 9- 701. The Commission’s powers also include the authority to “adopt reasonable and proper regulations to govern the procedures of the Commission.” LE § 9-701(1). The validity of a regulation promulgated by the Commission is determined by “whether the regulation is consistent with the letter and spirit of the law under which the [Commission] acts.” McLaughlin v. Gill Simpson Elec., 206 Md. App. 242, 257 (2012) (quoting Lussier v. Md. Racing Comm’n, 343 Md. 681, 687 (1996)).

A valid regulation “has the force of law[] and creates new law or imposes new rights or duties.” Id. (quoting Sec’y, Dep’t of Pub. Safety & Corr. Servs. v. Demby, 390 Md. 580, 606 (2006)).

When analyzing a statute, we determine the intent of the legislature by first looking to the plain meaning of the words of the statute. Id. at 253. When there is ambiguity, the Act “should be construed as liberally in favor of injured employees as its provisions will permit in order to effectuate its benevolent purposes. Any uncertainty in the law should be resolved in favor of the claimant.” Gang, 464 Md. at 279 (quoting Stachowski v. Sysco Food Servs. of Balt., Inc., 402 Md. 506, 513 (2007)).

This general rule of liberal construction is also applicable to the interpretation of regulations. Hranicka v. Chesapeake Surgical, Ltd., 443 Md. 289, 302 (2015). However, the statute of limitations is to be strictly construed. McLaughlin, 206 Md. App. at 254 (citing Stevens v. Rite-Aid Corp., 340 Md. 555, 568 (1995)). 4 LE § 9-736(b)(3) establishes the limitations period for modification of a workers’ compensation award: (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.

(Emphasis added). In addition to the statute of limitations prescribed by LE § 9-736(b)(3), two regulations are at issue in this case, Md. Code Regs. (COMAR) 14.09.09.02B and 14.09.03.02F. 14.09.09.02B states: Prior to filing an Issues Form raising permanent disability, the party filing the issue shall have obtained a written evaluation of permanent impairment prepared by a physician, psychologist, or psychiatrist in accordance with Regulation .03 of this chapter. 14.09.03.02F states: A party that has filed issues and is not ready to proceed at the hearing shall withdraw the issues. The parties agree that the limitations period for Rios to file a request for modification ended on October 8, 2017, five years after he received his last compensation payment.

Although Montgomery County recognizes that Rios’s request for modification was filed within limitations, it argues that “[t]he September 15, 2017 filing failed to toll the statute of limitations . . . because [Rios] did not have a written evaluation of permanent impairment as required by the applicable COMAR regulations.” In a closely-related 5 argument, Montgomery County maintains that Rios had no “basis in fact” to support his requested modification because he did not have the written evaluation of permanent impairment as of the September 15, 2017 filing. Finally, Montgomery County argues that, even if the September 15, 2017 filing were timely, the Issues identified in Rios’s Request for Modification were automatically withdrawn, pursuant to 14.09.03.02F, when Rios had not yet obtained a written medical evaluation by November 27, 2017, the original hearing date. Under any of these scenarios, Montgomery County contends that Rios’s claim is barred by limitations. We hold that Rios’s filing of his request for modification on September 15, 2017, was sufficient, concluding that the COMAR requirement of obtaining a written medical evaluation prior to filing is not a prerequisite contemplated by LE § 9-736(b)(3) for limitations purposes.

We further hold that a claimant such as Rios is not required to have a written evaluation for permanent impairment in order to satisfy the caselaw’s requirement that the claimant have, at the time of filing, a “basis in fact” to support his claim. Finally, we conclude that Montgomery County’s argument that Rios’s claim was withdrawn pursuant to 14.09.03.02F was not preserved. I. Rios’s Claim Is Not Time-Barred Montgomery County does not dispute that Rios filed a request for modification of his award within five years of “the last compensation payment” as prescribed by LE § 9- 736(b)(3)(iii). Rather, as previously noted, Montgomery County claims that Rios’s request for modification was not timely because, at the time of filing his request for modification on September 15, 2017, Rios had not obtained a written evaluation of permanent 6 impairment as required by COMAR 14.09.09.02B.

In Montgomery County’s view, the Commission’s promulgation of 14.09.09.02B is within the statutory enabling authority provided by LE §§ 9-701(1) and (2) to adopt “regulations to govern the procedures of the Commission” and “determine the nature and the form of an application for benefits or compensation.” Thus, according to Montgomery County, Rios’s request for modification, although filed on September 15, 2017, within limitations, is nevertheless time-barred because Rios failed to obtain a written evaluation of permanent injury within the five-year limitations period that expired on October 8, 2017. The Court of Appeals’s recent decision in Gang, 464 Md. 270 , is instructive. Nearly four years after obtaining a compensation award from the