Suber v. Washington Metropolitan Area Transit Authority

ROBERT M. BELL, Judge. The facts of this case are not in dispute. James W. Súber, appellant, an employee of Washington Metropolitan Area Transit Authority (W.M.A.T.A.), appellee, reported to his supervisor, on January 21, 1986, that he had been injured in the course of his employment. After he had completed an Employee Report of Injury form, the matter was referred to appellee’s workmen’s compensation claims agent for investigation.

Thereafter, appellant received temporary total disability benefits accounting from January 22, 1986 through April 30, 1986. Appellant returned to full time employment duties after having been examined by a doctor to whom appellee had referred him. ⁷¹⁸ Appellant filed a claim for workmen’s compensation with the Workmen’s Compensation Commission on or about May 22, 1986. Having assigned a consideration date 1 of June 16, 1986, the Commission notified appellee both that a claim had been filed and of the consideration date. When there was no response from appellee, the Commission issued a pro forma order on June 20, 1986.

That order provided, in pertinent part: After due consideration of the above entitled case the Commission finds that the said claimant sustained an accidental personal injury arising out of and in the course of employment by the said employer on 1/21/86 that the nature and extent of disability sustained, if any, cannot be determined at this time. Pursuant to that order, appellant, on July 7, 1986, submitted for consideration by the Commission the “issue” of the “nature and extent of any permanent partial disability” to appellant’s cervical spine and shoulder. A copy of the “issue” was sent to appellee. On August 25, 1986, appellee responded by filing four “issues” of its own.

In addition to the issue raised'by appellant, it challenged whether appellant sustained an accidental personal injury arising out of and in the course of his employment and whether his disability was the result of an accidental personal injury arising out of and in the course of employment. When the matter came on for hearing, the Commissioner, over appellant’s objection, permitted appellee to pursue its late filed issues: I’ll tell you what we’ll do. That’s quite a time after the consideration date. I don’t know whether it slipped through the Claims Examiner, but whatever the situation, I’m going to hear the testimony, but I’ll tell you now that I’m inclined to look very distastefully at raising the issue ⁷¹⁹ at this particular time after this long period of time has passed.

It might work as a prejudice—we’ll take the testimony and I’ll make a ruling. After hearing the testimony, the Commissioner passed an order finding that “... the claimant did not [sustain] an accidental injury arising out of and in the course of his employment as alleged to have occurred on January 21, 1986____” Therefore, he disallowed the claim and rescinded and annulled the June 20, 1986 order. Appellant appealed to the Circuit Court for Prince George’s County, attacking the authority of the Commission to consider issues which were submitted after the consideration date and after the pro forma order had been issued by the Commission, in violation of its published rules and regulations. He also questioned whether appellee had waived its right to contest the claim.

No issue was presented as to the propriety of the Commission’s ruling on the merits. Both sides moved for summary judgment. The lower court granted appellee’s motion, ruling that Maryland Code Ann. art. 101 § 40(c) “allows the Commission to hear those issues at a later time, to litigate those issues at a later time, and the Commissioner ruled correctly.... ” On appeal, appellant presents the same two issues: 1. Did the Maryland Workmen’s Compensation Commission commit error by its refusal to enforce and adhere to the published agency rules and to permit the Employer— self-insurer to raise defenses of accidental injury and causal connection to the claim for workmen’s compensation benefits? 2.

Did the Employer—self-insurer knowingly or intentionally waive its defenses to the claim for worker’s compensation benefits by failing to contest the claim within the period of time allowed under the Commission’s procedural rules as well as by voluntarily paying Appellant James W. Súber all temporary total disability benefits claimed before deciding to contest the claim and only ⁷²⁰ after receiving notice that Claimant intended to seek additional workmen’s compensation benefits? For the reasons that follow, we will affirm. Section 40(c) provides: (c) Modification or changes. 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; provided, however, that no modification or change of any award of compensation shall be made by the Commission unless application therefor shall be made to the Commission within five years next following the last payment of compensation.

This provision is exceedingly broad, indeed, it is “one of the broadest re-opening statutes”, which, “not only gives the Commission continuing jurisdiction over each case, [but] it also invests the Commission with blanket power to make such changes [in its former findings or orders] as in its opinion may be justified.” Subsequent Injury Fund v. Baker, 40 Md.App. 339, 345 , 392 A.2d 94 (1978). It authorizes the Commission to reopen a case for the purpose of reconsidering an issue already decided, Adkins v. Weisner, 238 Md. 411, 412-14 , 209 A.2d 255 (1965); Charles Free-land v. Couplin, 211 Md. 160, 164-68 , 126 A.2d 606 (1956); Hathcock v. Loftin, 179 Md. 676, 678 , 22 A.2d 479 (1941); Stevenson v. Hill, 170 Md. 676, 681-84 , 185 A. 551 (1936), even in the absence of a change of facts or newly discovered evidence. Baker, 40 Md.App. at 346 , 392 A.2d 94 . See Ratcliffe v. Clarke’s Red Barn, 64 Md.App. 293, 300 , 494 A.2d 983 (1985).

Because, “[i]n a real sense, § 40 (c) gives the Commission a revisionary power akin to that available to courts under Md.Ann. Code Courts article § 6-408, and Maryland Rule 625 a. [present Rule 2-535], but without the ⁷²¹ thirty day limitation,” 2 it is clear that the Commission is not “irrevocably bound by its earlier findings.” Vinci v. Allied Research, 51 Md.App. 517, 522 , 444 A.2d 462 (1982). See Anchor Motor v. Sub. Injury Fund, 278 Md. 320, 328 , 363 A.2d 505 (1976). This Court, in East Coast Freight Lines, Inc. v. Harris, 37 Md.App. 256 , 377 A.2d 530 (1977), considered the question whether the Commission had authority to entertain “issues” filed after the adoption of an award of compensation and to vacate that award.

There, the employer filed issues late, and the question whether the employer was insured was a matter that was the subject of considerable confusion. 37 Md.App. at 262 , 377 A.2d 530 . The Commission, having entertained the late filed issues and found that the employee’s claim for compensation should be disallowed, “rescinded and annulled” its prior order. 37 Md. App. at 261 , 377 A.2d 530 . On appeal to the Circuit Court, the employee argued that filing issues late was, in effect, a request for rehearing pursuant to Art. 101 § 56(e), which permits the Commission to grant a motion for rehearing “only upon grounds of error of law, or newly discovered evidence”. The Circuit Court agreed and reversed the Commission’s order.

We reversed. Noting that because no hearing had been held in the first place, filing of issues late could not constitute a Motion for Rehearing, we rejected the § 56(e) argument. 37 Md.App. at 262 , 377 A.2d 530 . Then, declining to “decide whether the Commission’s actions in that case was a modification or change within the meaning of Art. 101, § 40(c)”, 37 Md.App. at 264 , 377 A.2d 530 , we acknowledged that the Commission’s powers and jurisdiction over its cases “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 ⁷²² be justified____” (emphasis in original) 37 Md.App. at 263 , 377 A.2d 530 , quoting Plater v. Kane Warehouse Co., 241 Md. 462, 466 , 217 A.2d 102 (1966). We held: ... when, as here, the Commission without a hearing renders an award of temporary total disability, it has continuing jurisdiction under § 40(c) and Rule 11 3 , and may, under the rule, for good cause, set the case down for a plenary hearing upon “issues” timely filed. 37 Md.App. at 264 , 377 A.2d 530 .

We went on to say: Even in the absence of a specific rule, we think the Commission would have authority to reserve continuing jurisdiction where, as here, the award which was made was inadvertent, was not one upon which a hearing had been held, was temporary only and could not be deemed to constitute a final award. 37 Md.App. at 264-265 , 377 A.2d 530 , citing Porter v. Bethlehem—Fairfield Shipyard, Inc., 188 Md. 668 , 53 A.2d 668 (1947); 3 A. Larson, The Law of Workmen’s Compensation § 81.53 (1976). The case sub judice, of course, is not on all fours with East Coast Freight Lines, supra: in the instant case, the issues were filed more than two months after the pro forma order issued, as opposed to three days in East Coast Freight Lines, and the award which was made may not be characterized as “inadvertent”. Furthermore, in this case, the Commission’s rules of procedure