Potomac Abatement, Inc. v. Sanchez

ADKINS, J. In this workers’ compensation case, we encounter a particularly vexing statutory construction problem involving the question of when the Workers’ Compensation Commission (“Commission”) will lose jurisdiction to decide a worker’s additional requests for relief while a previous order is being appealed. On two separate occasions, Respondent Edy Sanchez filed for benefits with the Commission while previous orders, in the same claim, were pending on appeal in the courts. The Commission decided that it lacked jurisdiction to consider his new requests because of the pending appeals. The Circuit Court for Baltimore County agreed, holding that the Commission did not retain jurisdiction pending an appeal because the issues raised in the new filings did not fit within the jurisdictional provisions of Md.Code (2000, 2008 Repl.Vol.) Section 9-742 of the Labor and Employment Article. 1 The Court of Special Appeals (“CSA”) reversed, holding that the Commission had jurisdiction over Respondent’s new issues under Section 9-736(b).

Sanchez v. Potomac Abatement, Inc., 198 Md.App. 436, 451 , 18 A.3d 100, 109 (2011). We granted certiorari 2 to answer the following question: In light of the language and legislative history of Section 9-742, may the Workers’ Compensation Commission retain ⁷⁰⁶ jurisdiction, under Section 9-736(b), while a prior Order is pending on appeal? 3 We shall affirm the judgment of the Court of Special Appeals. Under Section 9-736(b), the Commission retains jurisdiction to hear new issues while other issues in the same claim are pending on appeal, so long as no evidence was taken or decision made on the new issues in the hearing from which the appeal was taken. Section 9-742 was not intended to reduce the Commission’s ongoing jurisdiction to grant relief, notwithstanding the appeal.

FACTS AND LEGAL PROCEEDINGS On September 22, 1998, Respondent sustained a serious injury working for Petitioner Potomac Abatement, Inc. In his words: “I was cutting out a piece of the ceiling and the ceiling fell in on me and I fell about 7 feet.” He injured his back, pelvis, and leg, and for years suffered lower back pain, leg pain, sciatica, and depression. His ability to work was reduced. As a result of his injury, Respondent filed a claim with the Commission on or about May 5, 1999. During the next six years, he made a number of filings unrelated to this appeal.

Then, between 2006 and 2009, Respondent filed three new sets of issues with the Commission under his original claim, No. B464869. Following the Commission’s rulings, he appealed each set of issues to the Circuit Court for Baltimore County, 4 and again to the Court of Special Appeals. Because the sets of issues were filed and appealed at different times, they ⁷⁰⁷ became three different cases in the Circuit Court. We shall refer to the three cases chronologically, as Sanchez I, 5 Sanchez II, 6 and Sanchez III. 7 Respondent filed Sanchez I with the Commission on May 10, 2006.

He requested permanent partial disability benefits (“PPD”) 8 and temporary total disability benefits (“TTD”) 9 for several discrete periods. After a hearing, the Commission issued its decision on August 3, 2006, awarding some of the benefits he had requested. Respondent appealed that decision to the Circuit Court for Baltimore County and filed a Motion for Partial Summary Judgment. The motion argued that the Commission erred as a matter of law in determining the amount of the weekly compensation during the 150 week period for which permanent, partial disability was awarded.

The error of law pertains to an interpretation of the Worker’s Compensation Act and particularly, whether the cap or maximum amount of weekly benefits is based on the Maryland Statewide Average Weekly Wage at the time of the accident or during the period for which the permanent partial disability compensation was awarded. The above captioned issue is a legal issue and there are no material facts in dispute. After a trial in which he received an award, Respondent filed an appeal from the Circuit Court’s denial of the motion, seeking a ruling of law on the issue of “whether the Maryland Statewide Average Weekly Wage index [SAWW] used to ⁷⁰⁸ calculate and establish the maximum or cap of weekly compensation ... is that index on the date of the accident or on the date the right to such compensation commences.” 10 With this issue pending in the Court of Special Appeals, Respondent filed Sanchez II with the Commission on July 31, 2008, requesting TTD for a new period, from January 9, 2008, to June 11, 2008. Citing Section 9-742, the Commission decided that it lacked jurisdiction to hear the issue because Sanchez I was pending on appeal.

Respondent appealed this decision to the Circuit Court and the parties filed motions for summary judgment. The Circuit Court affirmed the Commission’s ruling, and Respondent appealed. While that appeal was pending before the Court of Special Appeals, we granted certiorari in Sanchez I on June 17, 2009. Sanchez v. Potomac Abatement, 409 Md. 47 , 972 A.2d 861 (2009).

Thus, while Sanchez I was pending in this Court and Sanchez II was pending in the CSA, 11 Respondent filed Sanchez III on August 19, 2009, claiming that he was entitled to vocational rehabilitation 12 in light of a doctor’s prescription dated May 5, 2009. In Sanchez III, the Commission again decided that it did not have jurisdiction to hear the issue, citing Section 9-742, ⁷⁰⁹ because the other two cases were pending on appeal. Respondent appealed to the Circuit Court, and the parties filed motions for summary judgment on that issue. The Circuit Court affirmed the Commission’s ruling, reasoning that the Commission lacked jurisdiction because of the cases pending on appeal.

Respondent appealed that decision on May 21, 2010. Because Sanchez II was still pending in the CSA on the same issue, the court consolidated Sanchez II and Sanchez III. Sanchez v. Potomac Abatement, Inc., 198 Md.App. 436, 443 , 18 A.3d 100, 104 (2011). Mootness While Sanchez II and Sanchez III were pending in the CSA, we decided Sanchez I, holding that “the SAWW of the year of the accidental injury controls the amount of a PPD award.” Sanchez v. Potomac Abatement, Inc., 417 Md. 76, 82-84 , 8 A.3d 737, 740-41 (2010).

The CSA then held that Sanchez II and Sanchez III had become moot because the obstacle to the Commission’s jurisdiction (the pending appeal) had been removed. Sanchez, 198 Md.App. at 444 , 18 A.3d at 105 . Nevertheless, the CSA reached the issue of the Commission’s jurisdiction pending an appeal. As Judge Zarnoch wrote: [T]his case implicates the “public interest” offshoot to the mootness doctrine. [Respondent] raises significant issues involving the proper interpretation of important social legislation that bears not only on future claimants’ rights to prompt compensation for their injuries, but also on the efficient operation of both the Commission and the courts.

Thus, we believe the public interest would be served by an expression of our views for the guidance of courts, litigants, and the Commission. Id. at 444-45 , 18 A.3d at 105 (citing Cottman v. State, 395 Md. 729, 745 , 912 A.2d 620, 629 (2006)). The Court then held that the Commission had jurisdiction over Respondent’s new issues under Section 9-736(b), even though other issues were pending on appeal in this Court and the CSA. Id. at 451, 18 A.3d at 109 .

The Petitioners sought certiorari, which we granted on ⁷¹⁰ August 12, 2011. See Potomac Abatement, Inc. v. Sanchez, 421 Md. 192 , 25 A.3d 1025 (2011). We agree with the CSA that this case became moot when we decided Sanchez I. See Sanchez, 198 Md.App. at 444 , 18 A.3d at 105 . A case is moot when it does not present “a controversy between the parties for which, by way of resolution, the court can fashion an effective remedy.” Adkins v. State, 324 Md. 641, 646 , 598 A.2d 194, 197 (1991).

As the Court of Special Appeals observed, “[t]he only effective remedy this Court could fashion — ordering the Commission to consider [Respondent’s] post-PPD claims — is one [he] now has an unfettered right to pursue.” Sanchez, 198 Md.App. at 444 , 18 A.3d at 105 . This is because, after we decided Sanchez I, there was no longer a case pending on appeal, and thus Respondent had no obstacle to raising his new issues before the Commission. Nevertheless, “[t]his Court ... is willing to decide moot questions where [i]t appears ... that there are important issues of public interest raised which merit an expression of our views for the guidance of courts and litigants in the future.” Robinson v. Lee, 317 Md. 371, 376 , 564 A.2d 395, 397 (1989). Yet “only where the urgency of establishing a rule of future conduct in matters of important public concern is imperative and manifest” will we make such a “departure from the general rule and practice of not deciding academic questions.” Lloyd v. Bd. of Supervisors, 206 Md. 36, 43 , 111 A.2d 379, 382 (1954).

We agree with the Court of Special Appeals that this case presents a question worthy of our guidance, despite its mootness. See Sanchez, 198 Md.App. at 444 n. 5, 18 A.3d at 105 n. 5. Whether the Commission can hear new benefits requests pending an appeal, and if so, when, affects claimants’ ability to receive proper, prompt treatment and compensation during the often long and complex healing process. Moreover, given that the Commission has reached different conclusions on this issue within this very case, it seems especially important to provide guidance to avoid future inconsistent rulings.

Accord ⁷¹¹ ingly, although we dismiss the appeal as moot, we will address the Commission’s jurisdiction pending an appeal. See Cottman, 395 Md. at 745 , 912 A.2d at 629 (“While we have, on prior occasions, discussed our view on the merits of moot questions ... we nonetheless dismissed those appeals pursuant to our mandate, as the mandate represents the judgment of the Court.”) Petitioner makes four arguments for why the Commission had no jurisdiction to consider Respondent’s claims while his earlier appeals were pending. Briefly stated, these are: (1) the plain language of Section 9-742 clearly sets exhaustively the extent of the Commission’s jurisdiction pending a related appeal; (2) legislative history is consistent with the plain language of Section 9-742; (3) Maryland courts have consistently applied Section 9-742, and never considered Section 9-736 in this context; and (4) to interpret Section 9-736 as granting the Commission additional jurisdiction outside of the terms of Section 9-742 is against public policy, because it will tend to create inconsistent rulings within the same case. Plain language of § 9-742 We turn to Petitioner’s “plain language” argument first, by examining the text of Section 9-742, titled “Jurisdiction of Commission pending appeal”: (a) In general. — The Commission retains jurisdiction pending an appeal to consider: (1) a request for additional medical treatment and attention; (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; and (2) a request for approval of a proposed settlement of all or part of a claim.

(b) Supplemental order.— ⁷¹² (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 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.

(Emphasis added.) Petitioner sees clarity in the bolded words, claiming that the section “was enacted to enumerate the limited situations in which the Commission retains jurisdiction during the pendency of an appeal.” Petitioner perceives clarity notwithstanding the absence of any words to indicate that this section was intended to exclude or override jurisdiction (pending appeal) granted elsewhere in the Act. Petitioner’s argument appears to rely on the interpretative canon expressio unius est exclusio alterius, under which statutory lists are often interpreted as exclusive, so that a court will draw the negative inference that no other items may be added. See, e.g., Comptroller of the Treasury v. Blanton, 390 Md. 528, 537 , 890 A.2d 279, 285 (2006) (“Maryland has long accepted the doctrine of expressio (or inclusio) unius est exclusio alterius, or the expression of one thing is the exclusion of another.”). Yet, not all statutory enumerations are limited by this canon.

As we recently observed, “this particular canon of construction ⁷¹³ should be applied with extreme caution, as [it] is not a rule of law, but merely an auxiliary rule of statutory construction applied to assist in determining the intention of the Legislature where such intention is not manifest from the language used.” Breslin v. Powell, 421 Md. 266, 294 , 26 A.3d 878, 895 (2011). 13 Petitioner would have us ignore the much older Section 9-736, upon which Respondents rely. This section provides, in pertinent part: (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. We are mindful that we read statutes “as a whole to ensure that no word, clause, sentence or phrase is rendered surplus-age, superfluous, meaningless or nugatory.” Evans v. State, 420 Md. 391, 400 , 23 A.3d 223, 228 (2011).

Additionally, Where the statute to be construed is a part of a statutory scheme, the legislative intention is not determined from that statute alone, rather it is to be discerned by considering it in light of the statutory scheme. When, in that scheme, two statutes, enacted at different times and not referring to each other, address the same subject, they must be read together, i.e., interpreted with reference to one another, and harmonized, to the extent possible, both with each other and with other provisions of the statutory scheme. (Citations and quotation marks omitted.) ⁷¹⁴ Mayor & City Council of Balt. v. Chase, 360 Md. 121, 129 , 756 A.2d 987, 992 (2000). We also bear in mind our mandate to interpret the Act “as liberally in favor of injured employees as its provisions will permit in order to effectuate its benevolent purposes.” Montgomery County v. Deibler, 423 Md. 54, 61 , 31 A.3d 191, 195 (2011).

The ‘Workers’ Compensation Act’s reopening provision is broad.” Vest v. Giant Food Stores, Inc., 329 Md. 461, 475 , 620 A.2d 340, 346 (1993); see also Vest v. Giant Food Stores, Inc., 91 Md.App. 570, 579 , 605 A.2d 627, 632 (1992) (“It is among the most liberal reopening provisions in the country[.]”). 14 In light of these principles, with two sections of the Labor and Employment article that purport to give the Commission continuing powers and jurisdiction pending an appeal, we are not persuaded by Petitioner’s argument that Section 9-742 plainly is the sole pronouncement of the extent of that jurisdiction. Thus, in Judge Zarnoch’s words, we have “A Tale of Two Statutes,” and our job is to discern which one applies here. In resolving the ambiguity in the statutory scheme, we will address the legislative history of these sections, but first, a discussion of an important case on this topic, Pressman v. State Accident Fund, 246 Md. 406 , 228 A.2d 443 (1967), is in order. The Pressman Case In Pressman , the claimant appealed from the Commission’s ruling and, while the appeal was pending, filed another set of issues with the Commission.

Id. at 409-10 , 228 A.2d at 445 . The issue pending on appeal was whether a certain party had been the claimant’s employer, while the issue at the new hearing was whether the defendant was the insurer. Id. at 409-10 , 228 A.2d at 445 . At the new hearing, the Commission resolved the insurance issue and the defendant appealed, ⁷¹⁵ arguing that “the taking of an appeal [from the prior ruling] automatically deprived the Commission of jurisdiction to act in the matter while the appeal was pending.” Id. at 414 , 228 A.2d at 448 .

We disagreed, holding that the Commission retained “jurisdiction and power ... to deal with aspects of a case that were not dealt with or embraced within a decision on the other aspects which had been appealed.” Id. at 415-16 , 228 A.2d at 449 . We held that the Commission had continuing jurisdiction under the predecessor to Section 9-736, which provided that “the powers and jurisdiction of the Commission over each case shall be continuing, and it may, from time to time, make such modifications or changes with respect to former findings or orders with respect thereto as in its opinion may be justified.” Id. at 415 , 228 A.2d at 449 (quoting Md.Code (1957), Art. 101, § 40(c)). In 1991, that provision became Section 9-736(b), “derived without substantive change from former Art. 101, § 40(b) through (d).” See Chapter 8 of the Acts of 1991. Section 9-736(b) uses the same language as Section 40(c), providing that the “Commission has continuing powers and jurisdiction over each claim under this title” and that “the Commission may modify any finding or order as the Commission considers justified.” § 9-736(b).

Because there is no substantive difference between the statute considered in Pressman and Section 9-736(b), the Pressman holding is instructive here. See Jung v. Southland Corp., 351 Md. 165 , 175 n. 12, 717 A.2d 387 , 392 n. 12 (1998) (“Maryland Code (1957, 1985 Repl.Vol.), Article 101, § 40 was recodified in 1991 as Labor & Employment Article, § 9-736. The Revisor’s Note indicates that it is ‘new language derived without substantive change from former Art. 101, § 40(b) through (d).’ Thus, interpretations of former § 40(c) are equally applicable to § 9-736(b).”). Petitioners want to distance us from Pressman , arguing that, there, the issue was whether the Commission retained jurisdiction ... to consider Issues raised at the time of the original hearing and ⁷¹⁶ reserved upon for later consideration.... [T]he Commission was essentially revising its prior Order ... as opposed to issuing a new decision on new Issues.

There is nothing in Pressman suggesting that the Commission should have unbridled authority pursuant to [Section 9-736 to hear] new Issues and enter new Orders while a prior Order is pending on appeal. We do not construe Pressman so narrowly. To be sure, we observed in Pressman that the Commission had reserved the issue raised at the new hearing (insurance) in its first order. See Pressman, 246 Md. at 409 , 228 A.2d at 445 .

Yet we do not read Pressman as limiting its holding to issues reserved in previous orders. It appears that Pressman mentioned the Commission’s reservation of the insurance issue simply to respond to the insurer’s argument that “the Commission had decided that [the employer] was uninsured by its [first order] and, having done this, cannot reverse itself[.]” See Pressman, 246 Md. at 414-15 , 228 A.2d at 448-49 . Responding to this argument, we observed: We think it plain that the Commission did not decide that [the employer] was uninsured----This is made manifest by the fact that no evidence on the point was offered or considered at the [first] hearing, by the hearing Commissioner’s statement that the issue of insurance would be specially set after notice to the Fund ... and by the fact that the issues listed in the [first order] did not include the insurance issue. Id.

Thus, it appears that we discussed the Commission’s reservation of the insurance issue simply to show that the Commission was not attempting to “reverse itself.” Whether the Commission retained jurisdiction, we said, turned on whether it had taken evidence or made a decision on the new issues at the earlier hearing: Inasmuch as no evidence was offered on the point of insurance before the [first order] and no decision made on the issue, the Commission had jurisdiction and power to adjudicate the status of [the employer] as insured or uninsured[.] ⁷¹⁷ Id. at 415 , 228 A.2d at 449 . We also described the inquiry as requiring that new issues be “independent and distinct” from the issues pending on appeal. Id. at 416 , 228 A.2d at 449 . There is simply no indication in Pressman or later cases that the Commission’s jurisdiction under Section 9-736(b) is limited to issues reserved for later consideration. 15 Nor does the language of Section 9-736 suggest such a limitation.

Keeping our Pressman decision in mind, we now look for insight from the legislative history of these competing statutes. Legislative History In his brief, Respondent takes us through the history of the more recent statute, Section 9-742, which was originally enacted in 1966 as an amendment to Art. 101, Section 56(a) (the Worker’s Compensation Act or “WCA”). See Chapter 298 of ⁷¹⁸ the Acts of 1966; Md.Code (1966), Art. 101, § 56(a). As Respondent explains, the WCA was amended almost annually, and “[vjarious sections of Article 101 of the 1957 Maryland Code that were existent in 1990 were repealed and reenacted into [the most relevant] sections of Title 9 of LE: ‘Workers’ Compensation’.” The provision remained in Article 101, Section 56(a) until 1991, when it was recodified in the Labor and Employment Article.

See Chapter 8 of the Acts of 1991. As explained in the Revisor’s Note to Section 9-742, the portion of Article 101 that became Section 9-742 was the ninth sentence of Art. 101, Section 56(a). That sentence provided: In the event a Claimant needs additional medical attention pending any appeal as provided herein, the Commission shall retain jurisdiction to entertain a request for additional medical treatment and attention and may issue a supplemental order requiring the employer to furnish additional medical treatment and attention, which order is subject to review on the pending appeal. As the Court of Special Appeals described it, this predecessor to Section 9-742 was neither a free-standing nor an obvious exclusive jurisdiction statute.

Rather, the legislation consisted of a single sentence and a single clause planted within a jungle of provisions dealing with appeals from Commission decisions. Sanchez, 198 Md.App. at 447 , 18 A.3d at 107 . As part of Section 56(a), that sentence was not an exclusive provision of jurisdiction pending appeal. Indeed, other portions of Art. 101 discussed jurisdiction pending an appeal in other circumstances.

For example, the tenth sentence of Section 56(a) provided that “an appeal shall not be a stay,” and as discussed in Pressman , Section 40(c) provided that the Commission’s “powers and jurisdiction ... over each case shall be continuing^]” Pressman, 246 Md. at 415 , 228 A.2d at 449 . As Judge Zarnoch wrote, “[t]his ‘additional medical treatment and attention’ language was transformed by the 1991 revision of the LE Article into an apparently self-contained ⁷¹⁹ provision,” designated as Section 9-742. Sanchez, 198 Md. App. at 448 , 18 A.3d at 107-08 . According to the Revisor’s Note, this transformation was done “without substantive change[.]” Chapter 8 of the Acts of 1991.

But as the CSA observed, despite this Revisor’s Note, the appearance of the statute had dramatically altered. Despite the absence of language of exclusivity, § 9-742 seemed to look a little more like a candidate for the expressio unius canon.