Waters v. Pleasant Manor Nursing Home

HARRELL, Judge. Mildred Waters, Petitioner, challenges a judgment of the Circuit Court for Baltimore City. The Circuit Court affirmed an Order of the Workers’ Compensation Commission (Commission) limiting an award of permanent total disability, paid by Pleasant Manor Nursing Home (the Nursing Home) and the Injured Workers’ Insurance Fund (the Fund), Respondents, to the statutory amount in effect at the time of her compensable injury, rather than that applicable when she was determined to be permanently totally disabled. The Court of Special Appeals affirmed.

Waters v. Pleasant Manor Nurs ⁸⁶ ing Home, 127 Md.App. 587 , 736 A.2d 358 (1999). We granted Petitioner’s petition for writ of certiorari. 1 We affirm. Petitioner asks us to consider the following issue: Is the total amount of Petitioner’s permanent total disability compensation established by the statute in effect when Petitioner became permanently totally disabled? I On 6 May 1973, Petitioner, a nursing assistant at the Nursing Home in Baltimore, was injured when she and another nurse’s aide attempted to pull a patient out "of a chair.

According to the accident report that documented Petitioner’s injury, the other aide mistakenly released the patient, shifting all of the patient’s weight on Petitioner and causing Petitioner and the patient to fall to the floor. As a result of the fall, Petitioner sustained a back injury. Petitioner filed for workers’ compensation benefits with the Commission on 15 May 1973. The Commission held a hearing on 10 August 1973 to address Petitioner’s claim and found that Petitioner experienced a compensable accidental injury on 6 May 1973.

The Commission awarded her temporary total disability benefits in an Order dated 5 September 1973. The Order directed the Nursing Home and the State Accident Fund, 2 its insurer, to pay workers’ compensation benefits to Petitioner for five weeks, subject to further consideration. Although she returned to work at the Nursing Home for a brief time, Petitioner’s physical condition did not improve, and she returned to the Commission for modification of her benefits. On six separate occasions from 1973 to 1987, the Commission held several hearings and issued Orders modifying Petitioner’s award, ordering temporary total disability and permanent partial disability benefits. ⁸⁷ Upon the expiration of the permanent partial disability payments in 1991, pursuant to an Order dated 3 February 1987, Petitioner again requested a hearing to reopen her case.

In a 13 June 1991 Order, the Commission found Petitioner permanently totally disabled and ordered permanent total disability payments, pursuant to Maryland Code (1957, 1972 Cum.Supp.), Article 101 § 36(l)(a). 3 The Commission further ordered the payments to be paid retroactively from 28 March 1985, with the total benefit not to exceed $45,000. Due to the retroactivity of this award, after credit for previous payments, Petitioner received her last compensation payment on 9 July 1991. At a hearing held on 27 September 1993, Petitioner requested that the Commission reopen her claim for continuing permanent total disability benefits. She argued that the date of the Commission’s finding that she was permanently totally disabled should govern the amount of her benefits, rather than the date of the injury.

By this argument, Petitioner sought to take advantage of the amended version of Article 101 § 36(l)(a), which the Legislature had enacted on 24 May 1973, shortly after her injury occurred. 4 The amended statute ⁸⁸ removed the $45,000 compensation “cap” and, therefore, she would be entitled to permanent total disability benefits as long as she remained permanently totally disabled. The Commission denied Petitioner’s request by Order dated 8 October 1993. No judicial review was sought of this Order. Petitioner filed a written issue with the Commission on 24 April 1996, essentially again requesting a reopening of her claim.

During Petitioner’s tenth and final hearing on 30 September 1996, she asked the Commission to resume payment of permanent total disability benefits pursuant to the amended statute. The Commission, in a 7 October 1996 Order, denied the petition. On 6 November 1996, Petitioner filed an action in the Circuit Court for Baltimore City seeking judicial review of the 7 October 1996 Commission Order. The Circuit Court, after holding a hearing on 1 December 1997, affirmed the Commission’s Order on 4 December 1997.

Petitioner then appealed to the Court of Special Appeals. The Court of Special Appeals first addressed Respondent’s argument that the Circuit Court lacked jurisdiction, pursuant to Maryland Code (1974, 1991 Repl.Vol.), Labor and Employment Article, § 9-736(b), 5 to ⁸⁹ review the Commission’s 7 October 1996 Order because the Order was a denial of reconsideration rather than a ruling on the merits following the grant of a rehearing or reopening request. Waters, 127 Md.App. at 590 , 736 A.2d at 360 . The intermediate appellate court concluded that Petitioner “appropriately” had asked for her claim to be reopened in light of Maryland’s broad reopening statute, Maryland Code § 9-736, which “not only gives the Commission continuing jurisdiction over each case, it also invests the Commission with blanket power to make such changes as in its opinion may be justified.” Waters, 127 Md.App. at 591 , 736 A.2d at 360 (quoting Subsequent Injury Fund v. Baker, 40 Md.App. 339, 345 , 392 A.2d 94 (1978) (discussing Article 101, § 40, the precursor to Md.Code § 9-736)).

As to the substantive issue, the Court of Special Appeals affirmed the Circuit Court judgment, holding that Petitioner was not entitled to a higher benefit level because the statute in effect on the date of injury, Maryland Code (1957, 1972 Cum.Supp.), Article 101 § 36(l)(a), capped her benefits at $45,000. II Before we reach the substantive issue presented by this case, we pause to consider Respondents’ argument that the Circuit Court did not have jurisdiction to review the Commission’s Order of 7 October 1996. Relying on our recent decision in Blevins v. Baltimore County, 352 Md. 620 , 724 A.2d 22 (1999), Respondents assert that a claimant may not seek judicial review of the Commission’s mere refusal to reopen or reconsider an earlier decision when the previous decision settled the merits of the claim. See also Robin Express, Inc. ⁹⁰ v. Cuccaro, 247 Md. 262, 264-65 , 230 A.2d 671, 672 (1967) (stating that if a court or administrative body refuses to reopen a case, “it decides only not to interfere with its previous decision which stands unimpeached as of its original date”); Gold Dust Corp. v. Zabawa, 159 Md. 664, 666 , 152 A. 500, 501 (1930) (explaining that “it is regularly considered that a decision declining to interfere with a previous decision is not one intended to be included under a general statutory allowance of appeal from any decision”).

In Blevins , we consolidated for argument and decision the cases of Blevins v. Baltimore County and Wills v. Baltimore County, 120 Md.App. 281 , 707 A.2d 108 (1998). The Wills case presented a procedural issue, not present in the Blevins case, whether a Commission decision amounted to a mere refusal to reopen or reconsider a case, or whether it had issued a new, and therefore appealable, order. We explained: [w]hen, upon the filing of an application to reopen or on its own initiative, the Commission enters a new order that differs in any material way from the earlier order, whether or not the end result is the same, it is obvious that the matter has been reconsidered and a new holding made. Conversely, if the Commission denies an application without discussing the merits or propriety of the earlier order, it is evident that the earlier order has not been reconsidered and no new holding has been made.

The prospect of ambiguity arises when the Commission considers an application' to reopen and, without making clear its intent, enters an order declining to revise the earlier order. The reviewing court then must attempt to determine from the record whether the Commission has, in effect, granted the application and affirmed its earlier ruling or has simply declined to reconsider that ruling. In trying to fathom the Commission’s intent, the court should consider, among other things, whether evidence was taken on the application, whether, in entering its new order, the Commission discussed or made findings with respect to the correctness, validity, or propriety of the earlier order, and whether, in denying relief, the ⁹¹ Commission either acted summarily, without assigning reasons, or focused only upon defects in the application itself. Blevins, 352 Md. at 633-34 , 724 A.2d at 28 (emphasis added).

Respondents argue that the Commission’s 7 October 1996 Order in the present case, after applying the Blevins test, amounts to a decision not to reopen or reconsider its prior suspension, or “capping,” of Petitioner’s disability payments at $45,000. According to Respondents, although the Commission held a hearing on 30 September 1996 regarding Petitioner’s 24 April 1996 filing of issues, no evidence was taken at the hearing; there was no discussion regarding the correctness of the earlier Order; the Commissioner that presided over the hearing merely inquired into the argument presented by Petitioner; and the Order issued after the hearing stated that “the said Petition is hereby denied,” without further elaboration. Respondents’ view of these proceedings is that the Commission made no new holding and that Petitioner’s right to seek judicial review of the Commission’s “cap” on her benefits expired, at the latest, thirty days after the Commission’s 8 October 1993 Order. See Maryland Code (1991, 1999 Repl.Vol.), Labor and Employment Article, § 9-737 (stating that unless the claimant has filed a petition for review within thirty days of the previous appealable decision, his or her right to appeal has expired). 6 It is necessary first to examine the hearing of 27 September 1993, which lead to the 8 October 1993 Order, and compare it to the 30 September 1996 hearing (and its precipitating paperwork), which lead to the 7 October 1993 Order, to determine the legal effect of the latter hearing and Order relative to the former hearing and Order. ⁹² The 27 September 1993 hearing was held, apparently at Petitioner’s former counsel’s request, 7 to discuss Petitioner’s position that she was entitled to more benefits because it was the date of the Commission’s determination that she was permanently totally disabled that was controlling, not the date of her injury.

Petitioner’s former attorney, however, did not present any specific support or meaningful legal arguments at the hearing to support this proposition. 8 In response, the Commissioner seemed to reprimand counsel for not being prepared to address fully the reason for the hearing and stated, before concluding the hearing, that the Commission should not be required to withhold its ruling until Petitioner’s counsel was prepared. Her counsel then stated that he was “already submitting a memorandum today.” No such memorandum is to be found in the record. The resultant 8 October 1993 Commission Order found that Petitioner was not entitled to continuing benefits pursuant to the 13 June 1991 Order and suspended further payments. On 24 April 1996, Petitioner’s present attorney filed a written issue with the Commission asking for the “[rjesumption of payments for permanent total disability ordered by the Order of June 13, 1991 and suspended by the Order of October 8, 1993.” At the 30 September 1996 hearing on this written issue, the question of which statute to apply in determining the maximum amount of benefits available to Petitioner was raised.

The Commissioner and counsel did not discuss the issue at length, however, perhaps because the Commis ⁹³ sioner already had read Petitioner’s written, pre-hearing memorandum of law on the issue. The following discussion occurred: COMMISSIONER: I have a memo, please don’t read it to me. Didn’t [Commissioner] Jefferson deal with this? [PETITIONER’S COUNSEL]: Not really. They went on the record, very briefly, and the earlier transcript doesn’t indicate much of anything except for the fact that her earlier counsel had a suggestion about the case of Cooper v. Wicomico County, but he really wasn’t prepared to deal with that.

COMMISSIONER: What do you mean, he put out an order. What do you mean he wasn’t able to deal with it? COMMISSIONER: Did you appeal this? [PETITIONER’S COUNSEL]: I was not her counsel at this time. COMMISSIONER: Was the order appealed? [PETITIONER’S COUNSEL]: That particular order, no.

However, that order was merely suspended, not to deny the matter. COMMISSIONER: Okay. What do you want me to do today? [PETITIONER’S COUNSEL]: Your Honor, I would like you to, based on what is contained in the memorandum that I have written here, because I believe that there is a very strong case that Mildred Waters was not — was not permanently disabled until 1985. That’s very clear on the record, and with the orders, in fact, there were findings prior to the 1991 order that she was indeed not permanently totally disabled.

Also, the legislative history of this where the legislature initially designed the law to be retroactive, that portion was found to be not the case in the case of Cooper v. Wicomico County. ⁹⁴ The distinction with Cooper, that person was already on temporary total disability at the time that the order — at the time that the legislation was passed. In Mildred’s case she was not found so until many years later. COMMISSIONER: Thank you. That’s it.

The Commission, in its 7 October 1996 Order, simply stated that Petitioner’s “Petition is hereby denied.” It appears that the 30 September 1996 hearing was the first time that substantive law, possibly bearing on the written issue common to both the 1993 and 1996 hearings, was presented and considered; however, the 7 October 1996 Order provides no insight into the Commission’s intent, leaving somewhat ambiguous whether there was an actual reconsideration granted and a “new” decision made on the issue. Our review of the record leads us to conclude that the present case is equally as equivocal as that encountered in the Wills issue in Blevins . In Wills , Ms. Wills suffered a work-related injury on 26 March 1992. Blevins, 352 Md. at 627 , 724 A.2d at 25 .

She was unable to return to work and retired on 8 February 1993. Id. Ms. Wills received retirement benefits, and after a hearing, was awarded workers’ compensation benefits. Blevins, 352 Md. at 628 , 724 A.2d at 25 .

At the initial hearing, Baltimore County, Ms. Wills’s employer, failed to raise “the issue of whether any workers’ compensation benefits to which she might be entitled were subject to set-off by the retirement benefits.” Id. In January 1996, Baltimore County filed issues with the Commission asking that her retirement benefits be set-off against her compensation award, pursuant to “the 1991 rewriting of Article 101, § 33, in the form of § 9-610 of the Labor and Employment Article.” Id. The Commission denied relief, and the Circuit Court for Baltimore County reversed. See Blevins, 352 Md. at 630 , 724 A.2d at 26 .

On appeal, Ms. Wills argued “that the Commission’s decision declining to revise its ... order was not subject to judicial review, and that the circuit court should therefore have dismissed the county’s petition.” Id. The Court of Special Appeals found that the Commission’s decision was “an ⁹⁵ appealable new holding.” Id. (internal quotation marks omitted) (quoting Wills, 120 Md.App. at 294 , 707 A.2d at 115 ). After articulating the analytical standard for an examination of whether such a Commission Order is subject to judicial review (supra at p. 90-91), we applied the standard to the facts of Wills .

We found that the Commission’s 1996 action was ambiguous because it did not summarily “deny the ... [employer’s] application,” and the Commission held a hearing at which “it [in oral remarks] denied the ... [employer’s] request for set-off solely on the ground that the right to and amount of any set-off had to be determined at the time of the initial award and could not be considered later.” Blevins, 352 Md. at 634 , 724 A.2d at 28-29 . Furthermore, the Commission’s 1996 Order simply denied the employer’s request for a set-off. Id. In Ms. Waters’s case, the Commission did not deny her claim summarily; there was some discussion of the arguably applicable law at the hearing, and the Order denied the claim without explanation.

Although Respondents’ argument, in the present case, may have as much merit as Wills’s employer’s claim in Blevins did, we shall follow the route that we took in Blevins and not rest our decision on the jurisdictional issue. Blevins, 352 Md. at 631 , 724 A.2d at 29 . Rather, we shall focus on the substantive issued decided in the present case by the Court of Special Appeals, for which we granted certiorari. As was the case with Blevins , “reasonable minds could differ, on this record, of what the Commission’s true intent was with respect to the application.” Blevins, 352 Md. at 635 , 724 A.2d at 29 .

The Commission’s 7 October 1996 Order denied Petitioner’s request to resume permanent total disability; whether a reopening merely was denied is debatable. Furthermore, the Commission did hold a hearing on 30 September 1996 during which the Commission discussed the previous orders, the injury, and the applicable statute and proffered case law. Nonetheless, we echo advice given in Blevins that we strongly urge the Commission ... when considering applications to revise an earlier final decision, to make clear whether it is denying the application or granting it and ⁹⁶ entering a new order. That is not an onerous burden, and it will help remove the uncertainty with respect to the right of the applicant to seek judicial review____ Id.

Ill We must determine whether Petitioner’s entitlement to a specific maximum amount of permanent total disability compensation is determined as of the time that she was injured, 6 May 1973, or when the Commission determined that she was permanently totally disabled, 13 June 1991. If the date of injury controls, Petitioner already has received maximum compensation and is entitled to no further compensation as provided by the then controlling Maryland Code (1957, 1972 Cum.Supp.), Article 101 § 36(l)(a). If the date of the Commission’s determination of her permanent total disability controls, Petitioner is entitled to additional benefits beyond $45,-000, as provided in the amended version of Article 101 § 36(l)(a). The general rule in workers’ compensation benefit cases is that the date of injury controls for determining compensation benefits.

See DeBusk v. Johns Hopkins Hosp., 342 Md. 432, 447 , 677 A.2d 73, 80 (1996) (holding that, in accidental injury cases, the date of the accident controls and “not the date that the employee became aware of a compensable injury or disability”); Shifflett v. Powhattan Mining Co., 293 Md. 198, 200 , 442 A.2d 980, 982 (1982) (“The general rule is that benefit increases are not retroactive and that the benefit level in effect at the time of the injury controls.” (citing 2 A. Larson, Workmen’s Compensation Law § 60.50 (1981 rev. ed.))); Mutual Chem. Co. of America, v. Pinckney, 205 Md. 107, 113 , 106 A.2d 488, 491 (1954) (“The claimant’s rights are governed by the statute at the time of the injury and not as of the time of filing the claim.” (citing Meyler v. Mayor and City Council of Baltimore, 179 Md. 211 , 17 A.2d 762 (1941); Furley v. Warren-Ehret Co., 195 Md. 339 , 73 A.2d 497 (1950))); Gorman v. Atlantic Gulf & Pac. Co., 178 Md. 71, 74 , 12 A.2d ⁹⁷ 525, 527 (1940) (conceding that an amended statute, increasing the amount of receivable benefits after the date of injury, does not apply); Baltimore County v. Fleming, 113 Md.App. 254, 258, 260 , 686 A.2d 1161, 1164 (1996) (finding that the law in effect at the time of the injury applies). Petitioner argues that the Commission erred in making its determination and suggests that the statute in effect on the date the Commission found her permanently totally disabled should govern the award that she receives rather than the date of her initial injury.

In support of this proposition, Petitioner cites Shifflett v. Powhattan Mining Co., 293 Md. 198 , 442 A.2d 980 (1982). In Shifflett , we addressed a legislative increase in the amount of benefits in an occupational disease case that may be awarded under the Workers’ Compensation Act and which date is the date of injury-“last injurious exposure” or “the event of disablement.” Shifflett, 293 Md. at 199, 203 , 442 A.2d at 981 . The claimant, Shifflett, was exposed to asbestos dust sometime between 1950 and 1959 while working at Powhattan Mining Company (Powhattan). Id.

Shifflett then left Powhat-tan and worked in a number of jobs, primarily as a security guard. Id. In 1975, Shifflett was diagnosed with pulmonary asbestosis, among other ailments, as a result of his previous exposure to asbestos. Id.

Between Shifflett’s “last injurious exposure” to asbestos, as late as 1959, and his “date of disablement,” 1975, “the statutory ceiling” for workers’ compensation benefits was twice raised. Id. We held that the date to be employed in determining benefits in occupational disease cases is the “event of disablement” or in other words, “the date when the claimant becomes permanently totally disabled.” Shifflett, 293 Md. at 206 , 442 A.2d at 983 (holding that “any increase in benefits which becomes effective after the date of last exposure to the occupational disease, but before the event of disablement resulting from that disease, would apply to the disability claim”). The Shifflett case is distinguishable from the present one because Shifflett involved an occupational disease whereas ⁹⁸ Petitioner suffered an accidental injury.

We acknowledged, in Shifflett , a difference between the two types of claims. We stated that an occupational disease case, such as the asbestosis case in Shifflett , is “unlike claims arising out of industrial accidents, in which some disability ordinarily is manifest at the time of the accidental injury or relatively soon after;” while an occupational disease is “ ‘insidious in its onset’ and ‘can be well advanced before a claimant is aware that it has’ ” manifested itself. Shifflett, 293 Md. at 200-01 , 442 A.2d at 982 (quoting Babcock & Wilcox, Inc. v. Steiner, 258 Md. 468, 474 , 265 A.2d 871, 875 (1970)). We further analogized that the event of disablement for occupational diseases is the equivalent of the date of injury for accidental injury cases in determining workers’ compensation benefits.

Shifflett, 293 Md. at 202 , 442 A.2d at 983 (“The [Workers’ Compensation] Act’s occupational disease provisions as a whole reflect that the General Assembly considers disablement from occupational disease as an event which is then statutorily treated much like an injury caused by an accident.” (referring to Md.Code (1957), 1979 RepLVol.), Art. 101 § 22(a)). Petitioner argues here that the finding that she was permanently totally disabled as of 28 March 1985 qualifies as a determination of the date of disability as required by our holding in Shifflett . Petitioner is mistaken. She fails to take into account a fundamental difference in determining benefits for