Montgomery County v. Willis

HOLLANDER, J. In this appeal, we must determine whether an employer is entitled to judicial review of an Order issued by the Workers’ Compensation Commission (the “Commission”), denying the employer’s request to refer a worker’s compensation claim to the Insurance Fraud Division (the “Division”) of the Maryland Insurance Administration. Valerie Willis (the “Employee” or the “Claimant”), appellee, a former Montgomery County Police Officer, obtained compensation benefits for a work related injury sustained in July 2001. Montgomery County (the “County” or the “Employer”), appellant, claimed that after the work-related event, but before benefits were awarded, the Employee sustained a non-work related injury that she failed to disclose. On that basis, pursuant to Md.Code (2008 Repl.Vol.), § 9-310.2 of the Labor and Employment Article (“L.E.”), the County filed a “Request for a Hearing for Referral to the Maryland Insurance Fraud Division.” After an evidentiary hearing, the Commission determined there was insufficient evidence of fraud, and declined to refer the matter to the Division.

Thereafter, the County sought judicial review in the Circuit Court for Montgomery County. The Claimant moved to dismiss, arguing, inter alia, that the Commission’s Order was not appealable. The circuit court agreed and dismissed the appeal. This appeal followed.

The County presents one question for our review, which we quote: When an employer seeks reimbursement of workers’ compensation benefits based on its belief that an employee ⁵¹⁸ wrongfully obtained those benefits, is the Commission’s determination subject to review in the circuit court as a final order of the Commission? [1] For the reasons that follow, we shall reverse and remand to the circuit court for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND 2 Valerie Willis, a former Montgomery County Police Officer, injured her left knee during a training exercise on July 20, 2001. Despite the injury, Ms. Willis continued to work. She injured her knee again during “a shooting scenario” in August 2001, for which she did not seek medical treatment.

Rather, she cared for her knee herself while continuing to work. Then, on December 31, 2001, appellee injured her knee for a third time. On this occasion, however, the injury was not work-related. Appellee was diagnosed with a ruptured anteri- or cruciate ligament (“ACL”), for which she underwent surgery on January 30, 2002.

On January 26, 2002, a few days before appellee’s first surgery, Willis’s direct supervisor, Corporal Ed Shropshire, filed with the Commission an “Employer’s First Report of Injury or Illness” for appellee. He listed July 20, 2001, as the date the Employer had been notified of appellee’s injury. On March 4, 2002, the Claimant signed a form titled “Employee’s Claim Workers’ Compensation Commission,” in which she represented that she had twisted her left knee during a training exercise on July 20, 2001, and that she had given notice to Lieutenant Rodney Hill on that date. Appellee filed a “Corrected Claim” with the Commission on April 21, 2002, indicating that she injured both her left knee and her back on July 20, 2001.

The claim listed July 21, 2001, as the “1st day ⁵¹⁹ unable to work,” and reflected that Willis returned to work on July 26, 2001. Neither the initial claim nor the corrected claim referred to the incident of December 31, 2001. Nor did the County have any records pertaining to the December 2001 occurrence. According to the County, the claim was “accepted” but “no medicals were forthcoming.” On June 4, 2002, the Commission issued an Order, finding that Willis sustained an accidental injury “arising out of and in the course of employment” on July 20, 2001.

But, the Commission ordered 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.” Appellee had a second knee surgery on September 26, 2005, to repair a torn meniscus in the left knee, for which the County paid the medical expenses. Willis was awarded temporary total disability (“TTD”) from September 1, 2005, through February 23, 2006. 3 In April 2006, appellee sought TTD benefits dating to 2002. According to the County, at that point it obtained medical records for the period prior to June 2002, which “revealed an intervening event that was non work related.” On November 20, 2006, through the Montgomery County Self-Insured Fund, appellant filed with the Commission a form titled “Request For A Hearing For Referral To Maryland Insurance Fraud Division” (the “Petition”). The preprinted form stated: This form may be filed by any party at any time.

The Commission shall refer the case on the person named below to the Insurance Fraud Division in the Maryland Insurance Administration where the Commission finds, after a hearing, that a party requesting the referral has carried the burden of establishing by a preponderance of the evi ⁵²⁰ dence that the named person knowingly affected or knowingly attempted to affect the payment of compensation, fees, or expenses under Title 9 of the Labor Law by means of a fraudulent representation. The undersigned alleges that the person named below violated section 9-310.2(a) of the Labor & Employment Article and requests a hearing before the Commission. The Commission held an evidentiary hearing on the Petition on April 17, 2007. The Employer’s attorney represented that the matter concerned a claim of “Fraud.” Explaining “the basis of the fraud,” the County’s lawyer said: [I]n May of 2002, ... [appellee] indicated that she twisted her knee on the job in July of 2001, the claim was accepted at that time.

No medicals were forthcoming. The medicals we had, that we later received very soon thereafter, was June 24th, 2002 and beyond. So the claim was accepted. Then in April of 2006, she made a claim for T.T.D. back in 2002, a back claim for temporary total disability.

At that point, we were able to secure the medicals predating June of 2002. Those medicals revealed an intervening event that was non work related. That was the first time that the County was aware that there was a non work-related accident on or about December 30th or 31 st of 2001. And then we also found at that time that she had a surgery, an ACL reconstruction, related to that incident in January of 2002.

That surgery was never paid for by the County, but a subsequent surgery of 9/26/2005 was paid by the County and the T.T.D. related to that. And that’s the basis of the fraud that we were never informed of the—and there was no treatment from July of 2001 until January of 2002, until the intervening event. And the County was unaware and never informed of the intervening event. Willis testified that she injured herself while on duty on July 20, 2001, while carrying a bullet proof shield.

She recalled that she planted her foot, twisted, heard a popping sound, and could not walk for fifteen or twenty minutes. ⁵²¹ According to appellee, she promptly notified her supervisor, Lieutenant Rodney Hill, but she did not file a claim for compensation at that time. She explained that she did not miss work because she had three days off and treated her knee while at home, with ibuprofen and ice. As a result of her knee injury in July 2001, Willis was temporarily placed on light duty. Appellee recounted that she sustained a second injury while on duty in August 2001: [W]e were doing a shooting scenario where we were required to jump up out of the car, run up to the range and engage bad guys, for lack of a better term.

When I hit the cement where I had to kneel behind a barrier, my left leg went out from underneath me in a slipping motion and I fell to the ground .... Willis did not seek medical treatment at that time, nor did she miss work. Again, she self-treated with ice and ibuprofen. Then, on December 31, 2001, Willis injured her knee for a third time, when she jumped off a pick-up truck while “at church.” She was not on duty at the time.

Willis recounted that she “hopped off’ the truck and her “knee twisted,” which caused “excruciating pain, extreme swelling.” Willis sought medical attention from her primary care physician, Dr. David Harding, on January 2, 2002. The next day, she was seen by Dr. Sheldon Mandel, an orthopaedic surgeon. His report reflects that Willis only mentioned her injury of December 31, 2001. According to appellee, shortly after her third knee injury, she spoke with her supervisor, Lieutenant Hill.

As a result of that conversation, Willis consulted Dr. David Higgins, an orthopaedic surgeon, on January 17, 2002, and an attorney. As noted, she filed a workers’ compensation claim on March 4, 2002, pertaining to her injury of July 20, 2001. Dr. Higgins diagnosed appellee with a torn ACL, a torn medial meniscus, and a torn lateral meniscus. He performed ⁵²² knee surgery on appellee on January 30, 2002.

Willis did not ask the County to pay for the surgery, nor did.it do so. On cross-examination, the following ensued: [EMPLOYER’S COUNSEL]: And the first time you went to the doctor for your knee problems was on January 2nd, 2002; is that— [EMPLOYEE]: That is correct. That was Dr. Harting [sic]. [EMPLOYER’S COUNSEL]: And, at that point, you gave a history of jumping off of the truck; is that correct? [EMPLOYEE]: That’s correct. My knee was so swollen, I couldn’t get a pair of jeans on. [EMPLOYER’S COUNSEL]: And when you saw [Dr. Mandel on January 3, 2002], you told him about the truck incident [which occurred December 31, 2001] and denied any prior injuries; is that correct? [EMPLOYEE]: He didn’t ask me about any prior injuries. * * ❖ [EMPLOYER’S COUNSEL]: When you were evaluated by Dr. [Clifford] Hinkes, or [sic] an independent medical examination on March the 31st, 2006 at the request of the County, you told him that you did not have any prior—any subsequent— [EMPLOYEE]: He never asked me that question. [EMPLOYER’S COUNSEL]: And you never told him of the December 2001 injury; is that correct? [EMPLOYEE]: I never told him.

He never asked me. He asked me what pain I was having that day and what my issues were at that time, and that’s what I told him about. [EMPLOYER’S COUNSEL]: You had another surgery to your knee in September of 2005? [EMPLOYEE]: Yes, I did. [EMPLOYER’S COUNSEL]: And you claim that that was related to your accident in July of 2001; is that correct? [EMPLOYEE]: That’s correct. ⁵²³ [EMPLOYER’S COUNSEL]: In April of 2006, you sought temporary partial disability for the period that you were off of work in 2002; is that correct? [EMPLOYEE]: That’s probably one of the times we asked for that .... Notably, Dr. Higgins’s report of January 17, 2002, reflects that Willis reported the injuries she sustained in July, August, and December of 2001. Dr. Higgins stated: HISTORY: The patient is a 42-year-old Montgomery County police officer with complaints of left knee pain with multiple injuries, the first being in July 2001, on the job as a police officer.

She had a minimal amount of swelling with pain that gradually resolved. She had another injury at the end of August 2001, with reoccurrence of her twisting injury and she had resolution on the pain with minor swelling. The third injury was on 12/31/01, when she jumped down out of a pickup truck and had another twisting injury to her left knee. She had pain and swelling.

This was the most amount of swelling she has had over the three injuries. Dr. Higgins also wrote a letter to appellee’s attorney, dated March 14, 2002, stating: I am writing concerning Ms. Valerie Willis’s left knee injury. She sustained her first injury in 07/01 while on duty as a police office [sic] when she sustained a twisting injury to her left knee. She did have swelling at that time.

It is my opinion within a reasonable degree of medical certainty that Ms. Valerie Willis tore her left knee anterior cruciate ligament while on duty as a police officer with a twisting injury in 07/01. She had continued symptoms since that initial injury in 07/01. I hope this clears up any confusion concerning her knee injury. On March 31, 2006, Dr. Clifford Hinkes evaluated Willis at the request of the County.

His report chronicled appellee’s medical care between 2002 and 2006. 4 ⁵²⁴ Joan Fitzwater, a Senior Workers’ Compensation Adjuster for The Schaffer Companies, Ltd., was one of several people who handled appellee’s compensation claim for the County. At the time of the hearing, she had worked for The Schaffer Companies for two years, and worked the previous ten years “for the predecessor adjusting companies for the County.” Ms. Fitzwater stated that it was not until 2006 that the County received appellee’s medical records for any period prior to June 2002. She related that the adjusting company asked for those records because appellee’s attorney was seeking a period of TTD, and the company did not have documentation to support it. Michael B. Willis, appellee’s husband, had worked as a police officer for the Montgomery County Police Department for 23 years.

He testified that he learned in late July or early August of 2001 that his wife had injured her knee in July 2001. Mr. Willis recalled that from July 2001 through the end of December, his wife would “periodically complain that [her knee] was swollen. You could see her limp from time to time, depending upon the weather ... It was apparent that she was in discomfort.” At the time of the hearing, Rodney Hill worked as an Assistant State’s Attorney for Baltimore County.

In July 2001, he was a Lieutenant with the Montgomery County Police Department, and in the “supervisory chain of command of Officer Valerie Willis .... ” 5 He recalled that Willis made “a ⁵²⁵ comment” after her initial injury in July 2001, although he did not remember “too much specific detail as to ... what exactly it was she said .... ” The following exchange is relevant: [EMPLOYEE’S COUNSEL]: Did she report to you at all that day [i.e., July 21, 2001] whether or not she had injured her left knee? [HILL]: I vaguely—again, I vaguely remember her telling me she had been injured. If she said it was the left knee, at this point—I definitely remember her saying she injured herself. I can remember saying, okay, and pretty much from what I recall, that was that. After that I remember having a subsequent conversation with her. [EMPLOYEE’S COUNSEL]: When was that? [HILL]: It might have been a few weeks, might have been about a month.

It wasn’t that long afterwards. [EMPLOYEE’S COUNSEL]: And what was the nature of that conversation? [HILL]: She was assigned to the desk. I just happened to be going by the desk and saw some plain clothes. I said, what are you doing at the desk? She said, well, remember I injured my knee ...

She had mentioned to me a subsequent injury as well ... I said, well, did you take care of the paperwork, necessary paperwork? She said, what are you talking about? I said, you have to do your first report of injury and you have to do your worker’s compensation.

I went into all the detail about it ... now, I take off my lieutenant hat and put on my lawyer hat. You need to protect yourself. You need to do X, Y, and Z and make sure you do this. Probably said it 200 times, you know, get your worker’s compensation lawyer, do this, do that, protect yourself.

You have a legitimate injury, you know. I said, that’s why the law is in place. Appellant’s counsel asked Hill if he was aware that “function code 350” requires an employee to report an injury immediately to a supervisor. Hill stated that he was aware ⁵²⁶ and he also knew that it was a supervisor’s “responsibility to insure the completion of all the required reports prior to the end of [their] tour of duty.” However, he clarified that he was not Ms. Willis’s direct supervisor.

On May 1, 2007, the Commission issued an Order that stated: Hearing was held in the above claim at Beltsville, Maryland on April 17, 2007 on the following issues: 1. Fraud 2. Penalties and Fees The Commission finds on the first issue presented that no fraud on the part of the claimant or her counsel has been proven. The Commission finds on the second issue presented that no fees, costs or penalties are appropriate.

It is therefore, this 1 st day of May, 2007, by the Workers’ Compensation Commission ORDERED that the above-entitled claim be reset only upon request. Thereafter, on May 17, 2007, the County sought judicial review in the circuit court, pursuant to L.E. § 9-737. Appellee filed a “Pre-Trial Statement” on November 16, 2007, asserting that the Commission “was correct in its findings and the Claimant committed no fraud arising out of her accidental personal injury on July 20, 2001.” The County subsequently filed a “Pre-Trial Statement of The Petitioner,” in which it averred that Ms. Willis “obtained benefits without properly disclosing an intervening injury of December 30-31, 2001.” On December 21, 2007, Willis filed a Motion for Summary Judgment/To Dismiss, arguing, pursuant to L.E. § 9-737, that the Order of the Commission was not appealable because the decision—not to refer the case to the Division—did not grant or deny a benefit to appellant under the Workers’ Compensation Act. She also averred that the County failed to “allege facts sufficient to prove that [appellee] made a fraudulent representation.” In its opposition to Willis’s motion, the County asserted, in part: ⁵²⁷ The Commission did not find fraud, and therefore declined to make the referral set forth in Labor & Employment Article, § 9-310.2.

Had the Commission found that the Claimant “knowingly affected or knowingly attempted to affect the payment of compensation, fees or expenses ... by means of a fraudulent representation,” the Commission would have referred the matter to the Insurance Fraud Division. Necessarily, the Commission would have also ordered the Claimant to reimburse the County for the benefits that she knowingly obtained and to which she was not entitled. This would be done pursuant to § 9-310.1. That Section is not discretionary'—the statute says that, if the County establishes that she knowingly obtained benefits to which she is not entitled, “the Commission shall order the person to reimburse .... ” If the Commission had found fraud, not only would the referral of § 9-310.2 take place but the reimbursement of § 9-310.1 would have been ordered.

Therefore, the Commission’s decision denied the County of a benefit, and is a “final order.” In addition, § 9-737 states that an “employer ... or any other interested person aggrieved by a decision of the Commission ... may appeal from the decision of the Commission provided the appeal was filed within thirty days after the date of mailing the Commission’s Order.” As a party that was aggrieved by the Commission’s decision, the County is entitled to this appeal. The simply [sic] statutory language provides for such judicial review. Under these circumstances, the County is entitled to appeal the decision of the Commission. The court held a hearing on January 24, 2008.

The following colloquy is relevant: THE COURT: [A]s I read [L.E. § ] 9-310.1, I understand it to be that the County would have been entitled to recover monies improperly paid to your client if fraud had been found. Why is that not a benefit under the act? ⁵²⁸ [EMPLOYEE’S COUNSEL]: Okay. For two reasons. One, it’s a separate section.

And actually 9-310.1 never mentions fraud. It’s a completely different standard. [L.E. § ] 9-310[.l] is just if they knowingly obtain benefits to which they are not entitled. There’s nothing about a fraudulent representation or anything else ... the decision in this case was to not refer this case to the insurance division, fraud division. That does not in any way address benefits THE COURT: So if there’s a finding of fraud, it doesn’t follow by necessity that the—Would it be the Commission that would order this back payment? [EMPLOYEE’S COUNSEL]: It doesn’t necessarily follow that.

They [i.e., the County] would have to raise that under the separate section---- THE COURT: So if the decision is, okay, I find fraud, I’m going to refer it, there is no award of a benefit is your argument. And it would be for that agency to which it was referred. Who is that? To whom was it referred back to? [EMPLOYEE’S COUNSEL]: It’s actually to the—technically it’s the Insurance Fraud Division in the Maryland Insurance Administration.

According to appellee, because the Commission did not rule on reimbursement in its Order of May 1, 2007, the ruling was not “a final appealable decision.” Appellee’s counsel emphasized that the Commission was merely asked to decide whether the case should be referred, and he stated: “There are no benefits being decided by that .... ” Therefore, he claimed the circuit court lacked jurisdiction to hear “the subject matter of this appeal.” The County’s lawyer argued: [L.E. § ] 310.2 is what the Commission makes you go through first .... And the standard is preponderance of the evidence, “a person knowingly affected or knowingly attempted to affect the payment of compensation, fees or expenses by means of a fraudulent representation.” By ⁵²⁹ necessity, if they were to find that: 310.1 says, “if it is established by a preponderance of the evidence that a person has knowingly obtained benefits under this title to which the person is not entitled, the Commission shall order the person to reimburse the insurer.” It’s not may. It’s not discretionary with the Commission. So, if they find that there is a referral, they’ve already found that there’s a preponderance of the evidence that she knowingly affected or knowingly attempted to affect payment of compensation by means of a fraudulent representation.

If they find that, then under 310.1, they shall order the reimbursement so it’s tied together. Without citation to any authority, the County’s lawyer insisted that the County could not obtain reimbursement under L.E. § 9-310.1 unless it first proceeded under “what the Commission terms their ‘referral statute,’ ” i.e., L.E. § 9-310.2. Appellant’s counsel said: “I don’t think there’s any case law on it. It just doesn’t come up that often.

However, I mean, all I have is the language of the statute that says if you got [that] to which you’re not entitled, the Commission shall order reimbursement.” Appellant’s counsel continued: You have to file for fraud and the Commission decides really both issues together. Now we’ve lost both issues. I understand that. The Commission decided no referral.

It didn’t say anything about reimbursement because they didn’t have to. That’s part of that decision. The Commission makes you go through that. If we were to say that failure ... to decide that is not appealable—... if we were to say that refusing to refer the case is not appealable, then this can never be appealable because the Commission always decides the referral issue first.

And if they find no referral, then they’re not going to order reimbursement. By Opinion and Order dated January 25, 2008, the circuit court granted appellee’s motion for summary judgment, upheld the Commission’s Order of May 1, 2007, and dismissed the appeal. The court stated: ⁵³⁰ As a general rule, an action for judicial review of an administrative order will lie only if the administrative order is final. See Holiday Spas v. Montgomery County, 315 Md. 390, 395 , 554 A.2d 1197, 1199 (1989). “ ‘Final order’ or ‘final action,’ within the ambit of the Workmen’s Compensation Law, means an order or award made by the Commission in the matter then before it, determining the 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.” Great American Ins. v. Havenner, 33 Md.App. 326, 332 , 364 A.2d 95, 99 (1976).

Pursuant to MD. Code Ann., Lab & Empl. § 9-310.1, if it is established by a preponderance of the evidence that a person has knowingly obtained benefits to which she is not entitled, the Commission shall order the person to reimburse the self-insured employer for the amount of all benefits improperly received. The County argues that the Commission’s order finding an absence of fraud denies it a particular benefit under the Act (i.e. reimbursement for money improperly paid to Respondent) and thus entitles it to appellate review. The court disagrees.

Although the Workers’ Compensation Act fails to define the term “benefit,” this court attributes significance to the fact that the “benefits” set forth in Subtitle 6 of Title 9 conceive of an award accruing in favor of a covered employee, not a self-insured employer. See MD. Code Ann., Lab. & Empl. § 9-601, et seq. Even if the term “benefit” is held to be ambiguous in this context, the Maryland Court of Appeals has repeatedly held that “[The Workers’ Compensation Act] is to be construed as liberally in favor of injured employees as the Act’s provisions will permit so as to effectuate its benevolent purpose as remedial social legislation.

Any uncertainty in the meaning of the statute should be resolved in favor of the claimant.” Lovellette v. Mayor and City Council of Baltimore, 297 Md. 271, 282 , 465 A.2d 1141, 1148 (1983). In light of these considerations, the court finds that the Commission neither granted nor denied a benefit under the ⁵³¹ Act, as envisioned by the legislature. Tt merely found that no fraud on the part of the claimant or her counsel had been proven. Accordingly, the May 1, 2007, order was not a “final decision” for purposes of appellate review.

DISCUSSION I. Before addressing the parties’ contentions, it is helpful to review relevant portions of the Labor and Employment Article and Insurance Article of the Maryland Code. L.E. § 9-310.1 and L.E. § 9-310.2 state, in part: § 9-310.1. Benefits wrongfully obtained; reimbursement; interest. (a) Reimbursement.—In any administrative action before the Commission, if it is established by a preponderance of the evidence that a person has knowingly obtained benefits under this title to which the person is not entitled, the Commission shall order the person to reimburse the insurer, self-insured employer, the Injured Workers’ Insurance Fund, the Uninsured Employers’ Fund, or the Subsequent Injury Fund for the amount of all benefits that the person knowingly obtained and to which the person is not entitled. § 9-310.2.

Referral of certain fraud cases to Insurance Fraud Division; reports. (a) Referral of certain fraud cases to Insurance Fraud Division.—In any administrative action before the Commission, if it is established by a preponderance of the evidence that a person knowingly affected or knowingly attempted to affect the payment of compensation, fees, or expenses under this title by means of a fraudulent representation, the Commission shall refer the case on the person to the Insurance Fraud Division in the Maryland Insurance Administration. L.E. § 9-1106 is also pertinent. It provides: § 9-1106.

False claims. ⁵³² (a) Prohibited act.—A person may not knowingly affect or knowingly attempt to affect the payment of compensation, fees, or expenses under this title by means of a fraudulent representation. (b) Penalties.—A person who violates this section, on conviction: (1) is subject to the penalties of § 7-104 of the Criminal Law Article; and (2) may not receive compensation, fees, or expenses under this title. Notably, L.E. § 9-1106 “is a criminal statute. Kelly v. Consolidated Delivery Co., 166 Md.App. 178, 188 , 887 A.2d 682 (2005), cert. denied, 393 Md. 161 , 900 A.2d 206 (2006).

Thus, “before the Commission may enforce the penalty” under L.E. § 9—1106(b)(2), the claimant must be convicted by a court, “as the Commission is without the power to convict anyone.” Id. 6 L.E. § 9-737, which is central to this case, states: § 9-737. Judicial Review—Authorized. An employer, covered employee, dependent of a covered employee, or any other interested person aggrieved by a decision of the Commission, including the Subsequent Injury Fund and the Uninsured Employers’ Fund, may appeal from the decision of the Commission provided the appeal is filed within 30 days after the date of the mailing of the Commission’s order by: 1) filing a petition for judicial review in accordance with Title 7 of the Maryland Rules .... Md.Code (2003 RepLVol., 2008 Supp.), § 2-401 of the Insurance Article (“Ins.”) provides: § 2-401.

Definitions. ⁵³³ (a) In general.—In this subtitle the following words have the meanings indicated. (b) Fraud Division.—“Fraud Division” means the Insurance Fraud Division in the Administration. (c) “Insurance fraud” means: (1) a violation of Title 27, Subtitle 4 of this article; (2) theft, as set out in §§ 7-101 through 7-104 of the Criminal Law Article; (i) from a person regulated under this article; or (ii) by a person regulated under this article or an officer, director, agent, or employee of a person regulated under this article; or (3) a violation of § 9-1106 of the Labor and Employment Article .... Ins. § 2-405 sets forth the general powers and duties of the Division.

It states, in part: § 2-405. General powers and duties of Fraud Division. The Fraud Division: (1) has the authority to investigate each person suspected of engaging in insurance fraud; (2) if appropriate after an investigation: (i) shall refer suspected cases of insurance fraud to the Office of the Attorney General or appropriate local State’s Attorney to prosecute the person criminally for insurance fraud; He * * (iv) shall notify the Workers’ Compensation Commission of suspected cases of insurance fraud referred to the Office of the Attorney General or appropriate local State’s Attorney under subparagraph (i) of this paragraph that involve the payment of compensation, fees, or expenses under the Workers’ Compensation Law .... Some legislative history is also useful.

L.E. § 9-310.1, initially House Bill 673, became effective on October 1, 1993. See 1993 Md. Laws, Ch. 171. The Bill amended L.E. § 9-1106 (“False claims”) to “increase the penalty for the purpose of ⁵³⁴ deterring the abuse of the workers’ compensation benefits system, and to provide the Commission with the authority to order an individual wrongfully obtaining benefits to reimburse the payor of those benefits.” Kelly, 166 Md.App. at 186 , 887 A.2d 682 . Although both amendments, as originally proposed, were to be included in L.E. § 9-1106, the reimbursement provision was ultimately set forth in a separate statute, codified at L.E. § 9-810.1.

Id. at 186-87, 887 A.2d 682 . An analysis of HB 673, prepared by the House Economic Matters Committee, stated that the Bill “requires the Commission to order the person .to reimburse the insurer, self-insured employer ... if the evidence indicates benefits were fraudulently obtained. The reimbursement must include the benefits received and costs incurred.” The title to Chapter 171, Laws of 1993, states: “Workers’ Compensation-False Claims-Penalty and Reimbursement.” 7 The bill was proposed FOR the purpose of altering the penalty for violating the prohibition against knowingly obtaining or attempting to obtain compensation to which a person is not entitled; providing that if it is established by a preponderance of the evidence that a person knowingly obtained any benefits to which the person was not entitled, the Workers’ Compensation Commission shall order the person to reimburse the amount of the benefits; providing that an order of reimbursement shall include a certain interest; and generally relating to false claims under the workers’ compensation law. As we explained in Kelly, 166 Md.App. at 188 , 887 A.2d 682 , under L.E. § 9-310.1 the Commission “has the authority ... to hold a hearing for the purpose of determining whether a fraud has been committed, and to order reimbursement of any ⁵³⁵ benefits obtained by fraud.” However, Kelly did not discuss L.E. § 9-310.2.

L.E. § 9-310.2 was first introduced as Senate Bill 639 on February 6,