Prince George's County v. Minor

JAMES A. KENNEY, III (Retired, Specially Assigned), J. Appellant, Prince George’s County (“the County”), appeals the decision of the Circuit Court for Charles County that reversed the decision of the Worker’s Compensation Commission (“the Commission”) regarding the payment of attorney’s ²³⁶ fees to the attorney for appellee Frederick Minor (“Mr. Minor.”). The County presents a single question for our review: Whether the circuit court erred when it determined that the County is responsible for payment of Mr. Minor’s attorney’s fees? For the reasons that follow, we shall reverse. FACTUAL AND PROCEDURAL BACKGROUND On September 3, 2008, Mr. Minor, a deputy sheriff with the Prince George’s County Police Department, filed a claim for workers’ compensation stemming from an injury he sustained when his right middle-finger became caught in his canine partner’s collar and twisted sideways.

The Commission, on October 15, 2008, found that he “sustained an accidental injury ... arising out of and in the course of employment on 7/08/2008 and that the average weekly wage was $1,500.00 and that the nature and extent of the disability sustained, if any, [could not be] determined at [that] time.” A hearing on the nature and extent of disability was held, and the Commission, on December 8, 2009, entered the following award: Disability leave in lieu of temporary total disability from November 7, 2008 to November 28, 2008 inclusive; based on an average weekly wage of $1,500.00 for an accidental injury sustained on July 8, 2008. PERMANENT PARTIAL DISABILITY: Resulting in 20% loss of use of the right hand, due to the accident of July 8, 2008; at the rate of $293.00, payable weekly, beginning November 29, 2008 for a period of 50 weeks. In the award, the Commission noted that “No Claimant’s Consent to Pay Attorney Fee and Doctor Fees [was] Submitted.” Mr. Minor’s counsel wrote the Commission on December 7, 2009, and “attached Claimant’s Consent to Pay Attorney Fee and Doctor Fee which was mistakenly not turned in at the time of the hearing.” The consent form, signed by Mr. Minor ²³⁷ on December 8, 2009, certified that counsel had “explained to [him] the amounts allowable by the Commission as counsel fee under the Schedule of Fees and [he] consented] to the Award of a Fee to [his] attorney in accordance with the Commission’s Fee Schedule.” Both the County’s counsel, Antonia St. John, and the senior claims specialist for the County’s third party claim administrator, Melissa Casselman, were copied on the letter, but neither acknowledged receiving it. The Commission docketed the letter and accompanying consent form on December 9, 2009.

On December 15, 2009, Ms. Casselman, emailed Mr. Minor’s counsel’s office 1 regarding the attorney’s fees: “I have received the Award Order on Fred Minor. What are the fees so I can deduct them?” When there was no response to the email inquiry, the County, on December 22, 2009, wrote a check for $14,650.00 (the full amount of the award) made payable to “Frederick Minor C/O John Hall, Esquire” and mailed it to Mr. Minor’s attorney’s office. Counsel delivered the check to Mr. Minor, who cashed or deposited it on January 6, 2010. On January 11, 2010, the Commission rescinded its December 8, 2009 compensation award and entered a new award that included Mr. Minor’s consent to pay counsel “in the amount of $2,930.00, plus reimbursement of expenses in the amount of $24.46 [and medical expenses] in the amount of $410.85.” On May 23, 2013, Mr. Minor’s counsel filed issues with the Commission for the County’s “non compliance of award dated 1/11/10 in which the atty and doctor fees have not been paid to the respective parties.” A hearing was held on September 13, 2013, and, on September 20, 2013, the Commission issued its order that: the [appellant], Prince George’s County Maryland, is not responsible for the payment of attorney’s fees.

The fee is approved and is payable by [Mr. Minor]. The fee may be ²³⁸ collected from [Mr. Minor] or shall constitute a lien against the payment of any future benefits to [him]. On October 15, 2013, Mr. Minor filed for judicial review of the order. A hearing was held in the circuit court on June 6, 2014.

Mr. Minor’s counsel argued that “by issuing [the] lump sum check to [Mr. Minor, the County] created a situation where they overpaid [him]. The[ County’s] remedy is that should [he] come back for additional benefits in the future [it] may have a credit for an overpayment.” But, according to counsel, the County was not relieved of the obligation to pay any attorney’s fees awarded in the case. Mr. Minor’s counsel further argued that the Commission order stating that fees may be collected from Mr. Minor is a violation of workers’ compensation law, and requested that the circuit court vacate the September 2013 Commission order. The County responded that the law requires that any fee shall be paid from an award of compensation in the manner stated by the Commission, and in this case, no fee was provided for in the initial award because no fee consent form was filed.

Moreover, if the County had held payment and did not submit payment to Mr. Minor within fifteen days of the award, it would have been subject to a penalty. According to the County, it did not receive a copy of counsel’s December 7, 2009 letter, and Mr. Minor’s Counsel did not respond to Ms. Casselman’s December 15 email, and therefore, the Commission order should be affirmed. To do otherwise, it asserted, would impose a burden on the County not provided for in existing law. At the conclusion of the hearing, the circuit court, commenting that it was “obvious that steps could have been taken on either side to avoid this problem,” took the case under advisement.

On September 16, 2014, the circuit court filed an “Opinion and Order” finding that “the Commission’s September 20, 2013 order placing responsibility on Mr. Minor was an incorrect construction of the law and facts” and that the County is “required to pay $2,930.00” to Mr. Minor’s counsel: ²³⁹ The record reflects that the County and its agents should have known that a fee petition was filed with the Commission on December 9, 2009 and that the Commission’s approval of the fee was pending. First, the December 7, 2009 letter and attached fee petition from Counsel for Mr. Minor was copied to the County’s attorney and Ms. Casselman. This letter put the County and Ms. Casselman on notice of the fee petition three weeks before the check was issued. Second, the fee petition was docketed the day after the First Award was issued, and the County and Ms. Casselman easily could have checked the Commission’s dockets for any updates.

Third, Ms. Casselman’s email indicates her knowledge that the issue of counsel fees was still outstanding. While Counsel for Mr. Minor concedes that there was some communication between Ms. Casselman and counsel for Mr. Minor’s office, Ms. Casselman, as the County’s agent, should have acted more diligently by following up with Counsel for Mr. Minor, checking to see if anything new was docketed with the Commission, directly inquiring of the Commission to determine the requested amount of attorney’s fees, or making the check payable to both Mr. Minor and Counsel for Mr. Minor. Instead, Ms. Casselman took no further action in the seven days before payment was due. As the individual responsible for processing Mr. Minor’s compensation award, Ms. Casselman was responsible for ensuring she had all the necessary information to make a proper payment, and the information was readily available from the Commission’s public records.

Notwithstanding the fact that 20% of the award was not reserved in escrow, on January 11, 2010, a lien attached to the Revised Award approving attorney’s fees. The revised award was notice to the County to reserve the $2,930.00 fee in an escrow account. Although the County paid Mr. Minor in full under the First Award, the Commission expressly rescinded the First Award and the County has not been discharged from its liability under the revised award.... Furthermore, the Court accepts the argument by Counsel for appellee that an attorney cannot collect legal fees direct ²⁴⁰ ly from a claimant in a worker’s compensation case.

The Commission’s attorney fee approval system is such that an attorney cannot collect any legal fees unless approved by the Commission.... Given these policies and considerations and the principles [espoused in the relevant case law], the County is responsible for paying attorney’s fees in the event of an overpayment to the claimant. (Internal citations and footnotes omitted). On October 14, 2014, appellant filed this appeal.

Standard of Review A party can petition for judicial review of a Commission decision pursuant to Md.Code (1991, 2008 RepLVol.), § 9-737 of the Labor and Employment Article (“L.E. § 9-737”). In that review, “the decision[ ] of the Commission ([is]) entitled to [a presumption of] prima facie correctness[,]” Frank v. Balt. Cnty., 284 Md. 655, 658 , 399 A.2d 250 (1979) (quoting Md. Bureau of Mines v. Powers, 258 Md. 379, 382 , 265 A.2d 860 (1970)), but a court “may reverse a commission ruling only upon a finding that its action was based upon an erroneous construction of the law or facts.” Frank, 284 Md. at 658 , 399 A.2d 250 . In addition, “[Reviewing courts should give special deference to an agency’s interpretation of its own regulations because the agency is best able to discern its intent in promulgating those regulations.” Brunson v. Univ. of Md. Med.

Sys. Corp., 221 Md.App. 583, 591 , 110 A.3d 713 (2015) (alteration in original) (citing Kim v. Md. State Bd. of Physicians, 196 Md.App. 362, 372 , 9 A.3d 534 (2010)). Discussion The County relies on its compliance “with the Dec. 2009 Award as ordered,” and argues that “no lien attached to the Dec. 2009 Award because no fee was approved [by the Commission] at that time,” and, in the absence of an approved fee, it was not required to take steps “in furtherance of securing or paying attorney fees.” It takes issue with the circuit court’s statement that it “should have expected [that] a fee petition ²⁴¹ ... would be filed and approved,” and argues that the circuit court’s decision was inconsistent with the Code of Maryland Regulations, which places an employer/insurer on notice of attorney’s fees by a Commission award. In its view, it “reached out beyond its obligation to [Mr. Minor]’s attorney in an attempt to put him on notice of the fee issue,” and the Commission correctly found that the “last clear chance” to correct any oversight rested with Mr. Minor and his counsel.

Mr. Minor responds that the County “essentially made an over payment” by writing a check made payable to Mr. Minor without reserving the appropriate attorney’s fees, and that an “over payment of worker’s compensation benefits can not be recouped from the claimant.” Mr. Minor relies heavily on the reasoning of the circuit court in the discussion section of that court’s “Opinion and Order.” A brief overview of the relevant workers’ compensation law will inform our discussion. L.E. § 9-731 states: (a)(1) Unless approved by the Commission, a person may not charge or collect a fee for: (1) legal services in connection with a claim under this title; (ii) medical services, supplies, or treatment provided under Subtitle 6, Part IX of this title; or (iii) funeral expenses under Subtitle 6, Part XIII of this title. (2) When the Commission approves a fee, the fee is a lien on the compensation awarded. (3) Notwithstanding paragraph (2) of this subsection, a fee shall be paid from an award of compensation only in the manner set by the Commission.

(Emphasis added). This provision has a twofold purpose: one is to protect attorneys by imposing a statutory lien on a portion of any compensation award; the other is to protect injured workers by limiting the amount of allowable attorney’s fees so that awards will not be exhausted by excessive fees. Feissner v. Prince George’s Cnty., 282 Md. 413, 418 , 384 A.2d 742 (1978); ²⁴² Chanticleer Skyline Room, Inc. v. Greer, 271 Md. 693, 699-700 , 319 A.2d 802 (1974). “To balance the need to protect claimants from excessive legal fees against the need of workers to retain competent counsel, the legislature delegated to the Commission, an administrative agency with special expertise in worker’s compensation law, the authority over attorney’s fees in worker’s compensation cases, including the power to promulgate rules governing such fees.” Brunson, 221 Md.App. at 592-93 , 110 A.3d 713 . To that end, the Commission has adopted the following regulation: A. Request for Fee Not in Excess of Schedule.

(1) An attorney seeking approval of an attorney’s fee that does not exceed the maximum amount set forth in Regulation .03 of this chapter, 2 may request approval of the fee by filing the Claimant’s Consent to Pay Attorney and Doctor Fee form. (2) A completed Claimant’s Consent to Pay Attorney and Doctor Fee form shall: (a) Be signed by the claimant; (b) Include the amount of any medical evaluation fee requested to be approved; (c) Include any amount of costs advanced by claimant’s attorney for which the attorney is seeking payment; and (d) Include any appeal fee requested under Regulation .03B(9) of this chapter. (3) An attorney shall substantiate a request for medical evaluation fee, costs or a fee under Regulation .03B(9) of this chapter by: (a) Submitting medical bills, receipts, or other evidence of costs; ... (5) An award by the Commission approving an attorney’s fee under this regulation shall be notice to the party ²⁴³ responsible for payment to reserve in escrow the amount of fee approved.

COMAR 14.09.04.02 (emphasis added). The Commission’s control over the amount of fees payable and when attorney’s fees are paid is plenary. See Greer,