Paolino v. McCormick & Co.

⁵⁷⁷ ADKINS, Judge. Maryland Code, Article 101 § 40(c) prohibits the Workmen’s Compensation Commission (Commission) from making any “modification or change of any award of compensation ... unless application therefor shall be made to the Commission within five years next following the last payment of compensation." [Emphasis supplied.] We issued a writ of certiorari in this case to decide whether an employer which continues to pay wages to a disabled employee who has sustained an accidental injury arising out of and in the course of her employment is making payments of “compensation” for purposes of that statutory provision. Unfortunately, we find ourselves unable to reach that question. We explain.

I. In 1978, petitioner Jennie M. Paolino (Paolino) was working for respondent McCormick & Company (McCormick). Twice that year, in May and August, she injured her back. She claimed workers’ compensation, and the two cases were consolidated. On 22 August 1978, the Commission found a 25 percent loss of the industrial use of Paolino’s body as a result of the injuries to her back.

It awarded her permanent partial disability payments of $63 per week for 125 weeks. The final payment of that compensation was made on or about 1 December 1978. Thereafter, the Commission entered an order as to payment of subsequent medical expenses and with respect to vocational rehabilitation, but it made no further awards of monetary compensation. 1 Paolino remained in McCormick’s employ for some time, although she was unable to work every day. When she did work she was given relatively light duty.

McCormick continued to pay Paolino her regular wages, apparently pursuant to a company policy ⁵⁷⁸ under which it continued the pay of an employee who, for any reason, was unable to work. By February 1985, however, Paolino seems to have left McCormick’s employ. In that month she had a spinal fusion, an operation required, according to her, by the worsening of her back problem. She sought temporary total disability for that period of hospitalization.

McCormick resisted this claim on the ground that Paolino was no longer in the work force {i.e., she had altogether retired) and so was not entitled to workers’ compensation. It also argued that since the last compensation payment to Paolino had been in December 1978, her 1985 attempt to reopen her case was barred by the passage of the five years prescribed by § 40(c). The temporary total disability claim came on for hearing before the Commission on 26 September 1985. It found that limitations was no bar to Paolino’s claim but, nevertheless, rejected it.

It also held open, subject to further consideration, any further claim as to permanent partial disability. From the denial of the temporary total disability award, Paolino appealed to the Circuit Court for Baltimore City. McCormick purported to cross appeal from the ruling on limitations. The circuit court granted partial summary judgment for Paolino on the limitations question.

At a later date, it rejected her appeal of the denial of temporary total and affirmed the Commission’s determination on that point. The court entered judgment for McCormick, whereupon McCormick purported to appeal the limitations issue to the Court of Special Appeals. That court agreed with McCormick. In an unreported opinion it held that McCormick’s voluntary payment of full salary to Paolino was not compensation as defined in Article 101, § 67(5), and, therefore, was not “compensation” for purposes of § 40(c).

The intermediate appellate court concluded that Paolino’s claim for temporary total disability was barred, the last payment of true “compensation” having occurred more than five years prior to her 1985 attempt to reopen the case. McCormick & Company v. Paolino, ⁵⁷⁹ No. 833, September Term, 1987 (filed 18 February 1988). We granted Paolino’s petition for certiorari to review that decision, but, as we have stated, we find ourselves unable to do so. The problem is that McCormick lacked the ability to appeal the circuit court decision to the Court of Special Appeals.

II

Our cases apply a number of rules on the subject of when an appeal is impermissible, on the one hand, and when on the other, an appeal is required in order to raise certain issues. For example, an appeal or cross appeal is impermissible from a judgment wholly in a party’s favor. Offutt v. Montgomery Cty. Bd. of Ed., 285 Md. 557 , 564 n. 4, 404 A.2d 281 , 285 n. 4 (1979).

In that situation, however, despite a party’s inability to raise adverse issues by appeal or cross appeal, if the losing party appeals, the winning party may argue as a ground for affirmance matters resolved against it at trial. As Judge Eldridge explained, for the Court, in Offutt : [wjhere a party has an issue resolved adversely in the trial court, but ... receives a wholly favorable judgment on another ground, that party may, as an appellee, argue as a ground for affirmance the matter that was resolved against it at trial____ This is merely an aspect of the principle that an appellate court may affirm a trial court’s decision on any ground adequately shown by the record. Id. [citations omitted]. But one who seeks to attack, modify, reverse, or amend a judgment (as opposed to seeking to affirm it on a ground different from that relied on by the trial court) is required to appeal or cross appeal from that judgment.

See, e.g., Taylor v. Wahby, 271 Md. 101, 110 , 314 A.2d 100, 104 (1974); Walston v. Sun Cab Co., 267 Md. 559, 563-564 , 298 A.2d 391, 394 (1973); Temple Hill Baptist Church v. Dodson, 259 Md. 515, 521 , 270 A.2d 802, 806 (1970); Glen Alden Corp. v. Duvall, 240 Md. 405, 421 , 215 A.2d 155, 167 (1965). ⁵⁸⁰ These principles are illustrated by two recent appellate decisions. In the first, Joseph H. Munson Co. v. Sec. of State, 294 Md. 160 , 448 A.2d 935 (1982), aff'd, 467 U.S. 947 , 104 S.Ct. 2839 , 81 L.Ed.2d 786 (1984), Munson sought, among other things, a declaration that a statute was unconstitutional. The Secretary of State argued that the statute was constitutional, but also questioned Munson’s standing to raise the constitutional question. The trial court declared the statute to be constitutional, in effect upholding Munson’s standing.

Munson” appealed; the Secretary of State did not cross appeal. The Court of Special Appeals affirmed. Before this Court, the Secretary of State attempted to reassert his challenge to Munson's standing. Munson argued that because of the Secretary’s failure to cross appeal, the issue was not properly before the Court.

Judge Eldridge, for the Court, reasoned that [u]nder circumstances where absence of standing would present an alternative ground for upholding a trial court’s judgment, an appellee is entitled to argue that ground in an appellate court____ In such situation, a cross-appeal would be unnecessary and, in fact, would be improper____ Moreover, in that situation, even if lack of standing were not raised by the appellee, an appellate court noticing the issue would normally consider it sua sponte under the principle that a judgment will ordinarily be affirmed on any ground adequately shown by the record, whether or not relied on by the trial court or raised by a party____ 294 Md. at 167-168 , 448 A.2d at 939 [citations omitted]. “Thus,” Judge Eldridge continued, in the case at bar, if the trial court had dismissed the action on some ground other than lack of standing, the Secretary as appellee would be entitled to argue Mun-son’s alleged lack of standing as an alternate basis for affirmance. However, the trial court did not dismiss the action. Instead, it rendered a declaratory judgment on the merits. Munson’s alleged lack of standing would not furnish an alternative ground for affirming the judgment. ⁵⁸¹ On the contrary, the Secretary’s argument amounts to an attack upon the judgment.

If the issue is