Rideout v. Department of Public Safety & Correctional Services

KENNEY, Judge. Claretta Rideout, appellant/cross-appellee (“Rideout”), and the Department of Public Safety & Correctional Services, appellee/cross-appellant (the “Department”), appeal from a judgment of the Circuit Court for Baltimore City affirming the ruling of an administrative law judge (“ALJ”) of the Office of Administrative Hearings (“OAH”). 1 In that ruling, the ALJ determined that the Department incorrectly denied a request by Rideout for work-related accident leave pursuant to Md. Code (1993, 1997 Repl.Vol.), § 9-701 of the State Personnel & Pensions Article (“SP & P”), but that Rideout had waived any right to “other benefits” under SP & P § 9-704(c) by receiving temporary total disability benefits under the Maryland Work ⁶⁵² ers’ Compensation Act. On appeal, the parties present three questions, which we have reworded and consolidated as follows: 1. Did the ALJ err, as a matter of law, in finding that the Department incorrectly denied appellant’s request for work-related accident leave? 2.

Did the ALJ err, as a matter of law, in concluding that appellant waived any right to “other benefits,” under SP & P § 9-704(c), by receiving temporary total disability benefits under the Maryland Workers’ Compensation Act? We answer “no” to the first question and “yes” to the second. We shall remand the case to determine the length of time Rideout is entitled to receive “other benefits” under SP & P § 9-704(c). FACTUAL AND PROCEDURAL BACKGROUND In 1998, Rideout injured her left shoulder in a work-related accident and did not return to the Maryland House of Correction-Annex in Jessup, where she worked as a Correctional Officer II, until September 20, 1999. 2 The following day, she “was sent to the firing range to qualify with the 12-gauge shotgun.” In order to qualify, she had to fire twenty “rounds.” After firing two rounds, the shotgun “jumped out— slipped out of the socket, ... hit me on the right side of my cheek, down on the right side of my neck area, shoulders, and down to my forearms.” 3 She reported the incident to a sergeant at the range, and then continued firing the shotgun, which “slipped ... two or three more times.” After qualifying, Rideout reported her injuries to Sergeant Spencer, who “was the sergeant from [her] agency.” She was then “sent home for that day.” ⁶⁵³ Rideout went to work on September 22 and reported her injuries to Lieutenant Dorn and Captain Smith.

Because of a “shortage of personnel” that day, she could not leave work to seek medical treatment. She returned to work the next day and again met with Captain Smith. She provided a written report relating to her injuries and then the two met with Assistant Warden William Smith. According to Rideout, “they did not like the report that I had written.

That I had to rewrite the report and then, and only then, [could I get medical treatment], I rewrote the report and I did it under distress[.]” Afterwards, she was sent to Concentra, a medical services provider to which the “Maryland House of Correction-Annex sends all the officers ... when they have a job related injury.” There, she was examined by Colleen Vogele, a physician assistant working under the supervision of Dr. Roger Mehl pursuant to a delegation agreement. Vogele diagnosed the injuries as contusions to the right shoulder and upper arm and determined that Rideout could return to “regular duty on 9/23/99” because [s]he had no functional deficit during [the] exam, she had full range of motion of both extremities. Actually, upper and lower. No complaints of pain throughout the examination.

The only physical finding on exam was a large bruise on the right upper bicep area, looking like from the butt of a rifle. She also recommended that Rideout’s orthopedic surgeon, Dr. Raymond Drapkin, determine any work restrictions resulting from the prior injury to her left shoulder. Although Dr. Mehl “signed off at the end of the day ... [on Rideout’s] chart,” he did not examine her. Thereafter, the Department did not have its own physician examine Rideout.

On September 24, Dr. Drapkin examined Rideout and determined that she could not work because of injuries to her right side. Rideout stated that “[Drapkin] believed that I had a tear, so he scheduled an MRI. He did x-rays of the upper right side face, neck and shoulder, and upper inner forearm. ⁶⁵⁴ And then he referred me to off work status.” At the hearing, Rideout was still on “off work” status. As a result of Dr. Drapkin’s diagnosis, Rideout requested work-related accident leave from the Department.

According to Rideout, she telephoned several persons at the Department, over a three month period, to inquire about that request but did not learn until December that it had been denied by Assistant Warden Smith. She then filed a grievance disputing that denial and, after two hearings before the Department, was denied again. She then appealed the Department’s denial to the OAH. In the meantime, Rideout filed a claim with the Workers’ Compensation Commission (the “Commission”) because she was not “[getting] any pay.” On March 13, 2000, the Commission determined that she had suffered a disability to her right shoulder and neck from an accidental personal injury arising out of and in the course of employment.

It awarded her compensation for temporary total disability (“TTD”) from September 22, 1999, to the present, as well as continuing medical expenses and attorney’s fees. Rideout’s appeal to the OAH was heard by an ALJ on May 31 and June 20, 2001. She argued that the Department incorrectly denied her request for accident leave pursuant to SP & P § 9-701(a). Addressing subsection (a)(1), she contended that the Commission’s award of TTD established that she sustained “a disabling personal injury that [was] compensable under the Maryland Workers’ Compensation Act.” As to subsection (a)(2), she maintained that Dr. Drapkin examined her and certified that she was “disabled because of the injury.” Rideout indicated that she was not seeking payment for accident leave pursuant to SP & P § 9-704(a) but, instead, was seeking “other benefits” as set forth in SP & P § 9-704(c)(1) & (2).

The Department, relying upon SP & P § 9-702(a)(2)(i), contended that the accident leave ended on September 23, 1999, because Dr. Mehl “signed off’ on Vogele’s determination that Rideout could return to work on that day. In support, it ⁶⁵⁵ relied upon two declaratory rulings issued by the Department’s Secretary of Personnel, one in 1984 (the “1984 ruling”) and the other in 1995 (the “1995 ruling”). The 1984 ruling provided that the agency’s physician, not the employee’s, determines the date upon which accident leave ends. The 1995 ruling was that accident leave ended on the date certified by a physician, not the date determined by the Commission.

The ALJ issued a written decision on August 8, 2001, concluding as a “matter of law” that [the Department’s] initial denial of accident leave constituted a misinterpretation or misapplication of a policy or regulation over which [the Department] had control. Nevertheless, once [Rideout] accepted the Commission’s retroactive award of temporary total disability benefits, she waived any entitlement to accident leave for the same period [of] time, along with any leave accumulation or retirement credits she would have obtained incident to the award of accident leave. In so concluding, the ALJ noted that the Department could not rely upon a diagnosis by a physician assistant, even if it was “signed off’ by a physician, because SP & P § 9-701(a)(2) required that a physician examine Rideout. The ALJ found the 1984 ruling inapposite because the question addressed by the Department concerned employees who were examined by physicians, not physician assistants.

Relying on the 1995 ruling, however, the ALJ stated that the Commissioner’s award of TTD did not establish Rideout’s “entitlement to accident leave” under SP & P 9—701(a)(1), but rather, a “physician’s certification ... [was] controlling.” Finally, the ALJ found that SP & P § 9-704(d) precluded Rideout from receiving both TTD benefits and accident leave and, therefore, “once [Rideout] accepted and collected the TTD award, she waived any right thereafter to recover accident leave for the same period of time.” Rideout sought judicial review of that decision in the Circuit Court for Baltimore City. After a hearing on January 18, 2001, ⁶⁵⁶ the circuit court affirmed the ALJ’s decision. This timely appeal followed. STANDARD OF REVIEW We review the decision of an administrative agency to determine if it is “ ‘in accordance with the law or whether it is arbitrary, illegal, and capricious.’” Maryland Dep’t of the Env’t v. Ives, 136 Md.App. 581, 585 , 766 A.2d 657 , cert. denied, 364 Md. 462 , 773 A.2d 514 (2001) (quoting Moseman v. County Council, 99 Md.App. 258, 262 , 636 A.2d 499 (1994)).

We are “ ‘limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.’ ” Board of Physician Quality Assurance v. Banks, 354 Md. 59, 67-68 , 729 A.2d 376, 380 (1999) (quoting United Parcel Serv., Inc. v. People’s Counsel for Baltimore County, 336 Md. 569, 577 , 650 A.2d 226, 230 (1994)). In applying the substantial evidence test, we must decide “‘ “whether a reasoning mind reasonably could have reached the factual conclusion the agency reached.” ’ ” Banks, 354 Md. at 68 , 729 A.2d 376 (quoting Bulluck v. Pelham Wood Apts., 283 Md. 505, 512 , 390 A.2d 1119, 1123 (1978)). When reviewing the agency’s legal conclusions, “we may substitute our judgment for that of the agency if there are erroneous conclusions of law.” Ives, 136 Md.App. at 585 , 766 A.2d 657 . DISCUSSION I. The Department argues that the ALJ erred, as a matter of law, in finding that it could not rely upon the diagnosis of a physician assistant (“assistant”) in denying Rideout’s request for work-related accident leave (“accident leave”).

Essentially, the Department contends that “physician,” as used in SP & P § 9-701(a)(2), should be read in conjunction with Md.Code (1981, 2000 Repl.Vol., 2002 Supp.), §§ 14-101 et seq. and 15-101 et seq. of the Health Occupation Article (“Health”). It ⁶⁵⁷ maintains that, because an assistant “is an agent of the supervising physician in the performance of all practice-related activities,” SP & P § 9—701(a)(2) “must be interpreted to mean that the examination required therein may be performed” by an assistant. It also argues that the 1984 ruling controls, because “any conflict between the State’s physician and an employee’s personal physician may properly be resolved in favor of the State’s physician.” When we interpret a statute, our “inquiry begins with the words of the statute and, ordinarily, also ends there.” Ives, 136 Md.App. at 586 , 766 A.2d 657 . “If the words of the statute are clear and free from ambiguity, we need not look further.” Ives, 136 Md.App. at 586-87 , 766 A.2d 657 . In Ives , we found that SP & P § 9—701(a)(1) did not permit State employees to use accident leave for treatment of an occupational disease.

In so finding, we noted that the plain language of SP & P § 9-701 was “clear and unambiguous,” but, “in the interest of completeness,” we examined the purpose of that statute to ascertain the meaning of the phrase “disabling personal injury.” Ives, 136 Md.App. at 589 , 766 A.2d 657 . Here, the plain language of SP & P § 9—701(a)(2) is clear and unambiguous. It provides that an employee is entitled to accident leave if “a physician examines the employee and certifies that the employee is disabled because of the injury.” (Emphasis added). Thus, a physician, not an assistant, must examine an employee.

We are not persuaded that SP & P § 9-701(a)(2) must be read in conjunction with Health §§ 14-101 et seq. and 15-101 et seq. Even if it were, however, an examination by an assistant would not satisfy the requirements of (a)(2) because an assistant is not a physician, but rather, “an individual who is certified under this title to perform delegated medical acts under the supervision of a physician.” Health § 15-101(m). In the Health Article, an assistant is not included in any definition for physician. For example, in § 1—101(i), a physician “means, except in Title 14 of this article, an individual who is authorized by a law of this State to practice medicine in ⁶⁵⁸ this State.” § 14—101(j) defines physician as “an individual who practices medicine.” And, a “licensed physician” is a “physician ... who is licensed by the Board to practice medicine.” § 14-101(g).

Although, pursuant to a delegation agreement, a physician may delegate certain medical acts such as taking patient histories, reviewing patient records, and performing physical examinations, Health § 15-301 (c), the delegated performance of such acts by an assistant does not negate the plain language of SP & P § 9-701(a)(2) that a physician examine an employee and certify that the employee is disabled as a result of the injury. The 1984 ruling is also unpersuasive because it provides that the agency’s physician, not the employee’s, determines the date upon which accident leave ends. Again, it is a physician, not an assistant, who makes that determination. Thus, we conclude that the ALJ did not err, as a matter of law, in finding that the Department could not rely upon the diagnosis of an assistant to deny Rideout’s request for accident leave.

II

Rideout argues that the ALJ erred, as a matter of'law, in concluding that she waived any right to “other benefits,” under SP & P § 9-704(c), by receiving TTD benefits under the Maryland Workers’ Compensation Act. In support, she contends there was no waiver because the “record is replete with testimony ... evidencing her continued efforts to secure work-related accident leave together with her incidental benefits.” She also maintains that while SP & P 9-704(d) does not allow an employee to “collect both sick pay and workers’ compensation,” it does not preclude an employee, who is receiving TTD benefits, from “continuing leave accruals and health benefits.” The Department contends that Rideout would collect a “double recovery as a result of the same injury” if