Washington Metropolitan Area Transit Authority v. Hewitt

SHARER, Judge. In this appeal, we are called upon to construe the language of a Workers’ Compensation Commission rule governing the payment of approved fees to attorneys for successful claimants. Appellant, Washington Metropolitan Area Transit Authority (“WMATA”), noted an appeal from an order entered by the Maryland Workers’ Compensation Commission (“the Commission”) awarding a penalty, as a sanction for the late payment of attorney’s fees, to counsel for Kenneth D. Hewitt, appellee. The entitlement to fees arose from an order of the Commission of May 25, 2001, ordering benefits to be paid to appellee as a result of a compensable injury.

Because neither party sought judicial review of the Commission’s order, the provisions of the Commission’s rules, as promulgated in the Code of Maryland Regulations (“CO-MAR”) 14.09.01.24A(4), 1 came into play. Appellant issued a check for attorney’s fees sixteen days after the time for appeal expired, which appellee deemed to be late and in violation of the Commission rule. As a result, appellee’s counsel requested that the Commission assess late payment penalties. Following a hearing before the Commission on September 24, 2001, WMATA was assessed a fine in the amount of 20% of the fee awarded by the Commission.

WMATA sought judicial review of that order in the Circuit Court for Prince George’s County. Appellee responded by filing a motion for summary ⁴⁶ judgment. A motions hearing was held on August 23, 2002, at the conclusion of which the court granted summary judgment in favor of appellee and remanded the matter to the Commission for issuance of an Order affirming its September 24, 2001 Order. WMATA noted a timely appeal to this court on-September 23, 2002.

WMATA presents two questions for review, as recast: I. Whether as a matter of law WMATA is entitled to fifteen (15) days following the expiration of the appeal period of a Maryland workers’ compensation award of benefits to make timely payment of attorneys fees?

II

Whether the Commission erred in awarding sanctions where the employer established good cause for the delay in payment and the claimant suffered no prejudice by reason of the payments? We answer both questions in the negative, and shall affirm. FACTUAL and PROCEDURAL HISTORY On August 13, 1998, appellee sustained an injury arising out of, and in the course of, his employment with WMATA. Appellee filed a workers’ compensation claim and a hearing was held on May 18, 2001, before the Commission.

The' Commission issued its Order on May 25, 2001, awarding appellee both temporary total disability and permanent partial disability. Additionally, the Commission awarded appellee’s counsel attorney’s fees in the amount of $3,365, plus $96.92 in advanced costs, to be paid out of the final weeks of appellee’s compensation. 2 When the time in which to seek judicial review of the Commission’s order expired on June 25, 2001, neither party had filed a notice of judicial review. The checks satisfying the Commission’s order for attorney’s fees were issued and mailed on July 10, 2001, and received by appellee’s counsel on July 11, 2001. As a result of the delay, appellee filed issues with the ⁴⁷ Commission requesting a hearing on whether a penalty for late payments of attorney’s fees should be assessed against WMATA.

On September 20, 2001, the Commission held a hearing on the issue of late payment of attorney’s fees. Appellee argued that attorney’s fees should have been paid immediately after the expiration of the appeal period, as required by COMAR 14.09.01.24A(4). At the hearing, the Commissioner inquired into the exact date the check for fees was paid: THE COMMISSION: When was the check paid? ❖ ❖ * [APPELLANT’S ATTORNEY]: It got sent about sixteen days after the date of the appeal period expiring. THE COMMISSION: What was the date of the mailing? [APPELLANT’S ATTORNEY]: July 10th.

We received it on July 11th. The checks were cut and mailed July 10th, which is forty-six days after the order. [APPELLANT’S ATTORNEY]: No dispute about that, Your Honor. Sixteen days after it became due as under the regs. [sic ], and that’s when we issued the check. We think that’s reasonable.

The Commission issued an Order on September 24, 2001, finding that WMATA had failed to pay the Order of May 25, 2001, in a timely manner pursuant to COMAR 14.09.01.24A(4). A fíne of 20% of the legal fee awarded was assessed as a penalty, in accordance with § 9-728 of the Labor and Employment Article. 3 ⁴⁸ WMATA originally appealed the decision of the Commission to the Circuit Court for Montgomery County on October 23, 2001. That court granted appellee’s motion to transfer, based on improper venue, on November 26, 2001, and the appeal was transferred to the Circuit Court for Prince George’s County. 4 Appellant’s appeal of the Commission’s decision was heard on August 23, 2002. The fact that the checks were mailed sixteen days after the expiration of appellee’s appeal was undisputed.

In support of its argument of timely payment, appellant’s counsel stated: THE COURT: Didn’t you tell—I’m sorry to interrupt you. Didn’t you tell the commission it was 16 days afterwards? [APPELLANT’S ATTORNEY]: Sixteen days after—doing it mathematically, yes. THE COURT: I mean, you basically conceded to the—that it was a day late? [APPELLANT’S ATTORNEY]: No, I said it was 16 days. I never said it was late.

I said I thought that was still timely. In granting appellee’s motion for summary judgment, the court stated: All right. I’m going to grant the motion for summary judgment in this case and for this reason: It always is interesting to see how other judges look at things. To me the phrase “The parties shall remit the approved fee to the attorney immediately” is not a legal issue that a judge or a commissioner would have equal standing under a statutory scheme. ⁴⁹ To me “Shall remit the fee immediately” is a factual matter.

We all know what the word immediately means. Immediately means right away, you do it right now, you do it as soon as you can, you do it as soon as the predicate that requires you to do it do it[sic]. It’s—to me that is a factual matter, and therefore I believe that the Workers Compensation Committee [sic] is presumed to be correct in that matter. I also find—well, I will also grant the motion for summary judgment totally.

I don’t think whether or not there was an abuse of discretion has been properly raised, and even if it had been properly raised, I mean, I have not seen that pleaded anywhere. Even if it had been properly raised that is not a matter for a circuit court jury, so I’m going to sign the order in the file granting the motion for summary judgment. STANDARD of REVIEW A decision of the Commission is prima facie correct and the burden of proof is upon the party attacking the decision. Blake Construction Co. v. Wells, 245 Md. 282, 286 , 225 A.2d 857 (1967). “[I]f the mind of the trier of facts is in equal balance on the evidence in the record, the finding of the Commission should be affirmed.” Blake Construction Co., supra, 245 Md. at 286-87 , 225 A.2d 857 (citing Greenwalt v. Brauns Bldg.

Specialties Corp., 203 Md. 313, 318 , 100 A.2d 804 (1953)). The standard of review for workers’ compensation cases requires the examination of three factors: “(1) did the Commission justly consider all the facts ‘concerning the injury’; (2) did it exceed the powers granted to it by art. 101; 5 and (3) did it misconstrue the law and facts ‘applicable in the case decided’?” Mayor & City Council of Baltimore v. Bowen, 54 Md.App. 375, 385 , 458 A.2d 1242 (1983). The Workers’ Compensation Act (“the Act”) 6 ‘“should be construed as ⁵⁰ liberally in favor of injured employees as its provisions will permit in order to effectuate its benevolent purposes’ and ... any uncertainty ‘should be resolved in favor of the claimant.’ ” Holy Cross Hospital v. Nichols, 290 Md. 149, 162 , 428 A.2d 447 (1981) (quoting Howard County Ass’n for Retarded Citizens v. Walls, 288 Md. 526, 530 , 418 A.2d 1210 (1980)). When reviewing an award of attorney’s fees by the Commission, the standard of review utilized by both the circuit and appellate courts is “limited to determining whether the Commission exceeded the powers granted to it by [former] Md.Code Ann., art. 101, and whether it misconstrued the law and facts applicable to the case decided.” Workers’ Compensation Comm’n v. May, 88 Md.App. 408, 416 , 594 A.2d 1232 (1991) (citing former Md.Code Ann., art. 101, § 56).

See also Mitchell v. Goodyear Serv. Store, 63 Md.App. 426, 433-34 , 492 A.2d 984 (1985), aff'd, 306 Md. 27 , 506 A.2d 1178 (1986). The amount of such fees awarded is a decision within the sound discretion of the Commission, and “it is not the province of the courts to constrain the legitimate exercise of the Commission’s discretion.” May, supra, 88 Md.App. at 416 , 594 A.2d 1232 (quoting Bowen, supra, 54 Md.App. at 386 , 458 A.2d 1242 ). DISCUSSION I. Is WMATA entitled, as a matter of law, to fifteen (15) days following the expiration of the appeal period of a Maryland workers compensation award of benefits to make timely payment of attorneys fees?

Appellant argues that its payment of attorney’s fees pursuant to Commission orders is governed by both § 9-727 of the Labor and Employment Article and COMAR 14.09.01.24A(4). From that premise, WMATA draws the conclusion that the provisions of COMAR 14.09.01.24A(4), requiring the payment of attorney’s fees “immediately” after the expiration of a claimant’s thirty day appeal period, and § 9-727 of the Labor and