Yingling v. Millennium Inorganic Chemicals

EYLER, DEBORAH S., J. Larry Yingling, the appellant, challenges a judgment by the Circuit Court for Baltimore County denying, as time-barred, his request to re-open his temporary total disability benefits claim against Millennium Inorganic Chemicals (“Millennium”), his employer, and Pacific Employers Insurance Company, its insurer, the appellees. He poses two questions for review, which we have rephrased: 1 I. Did the circuit court err by ruling that Yingling’s request to re-open his claim for temporary total disability benefits was time-barred by the five-year limitations provision in Md.Code (1957, 1999 Repl.Vol., 2007 Cum. Supp.) section 9-736(b)(3) of the Labor and Employment Article (“LE”)? ¹²⁷ II. If not, was the Workers’ Compensation Commission bound by that limitations provision when it was asked to modify a 2000 “Award of Compensation” by the Commission?

For the following reasons, we shall affirm the judgment of the circuit court. FACTS AND PROCEEDINGS Yingling has been employed by Millennium since 1972. On April 1,1995, he sustained an accidental injury in the course of his employment. As a consequence, he lost time from work in 1995, 1996, 1997, and 1998.

On February 11, 1998, the Workers’ Compensation Commission (“Commission”) awarded him temporary total disability (“TTD”) benefits for his lost time from work. The last TTD benefits were paid on April 13, 1998. In 1999, Yingling filed issues with the Commission seeking authorization for neck surgery for treatment of his injury. The issues were heard and on February 17, 2000, the Commission issued an “Award of Compensation” authorizing “treatment as recommended by Dr. Kenneth Murray” and payment of TTD benefits to commence on the date of the surgery.

Despite the Commission’s award, Yingling did not follow through with Dr. Murray’s treatment plan or undergo neck surgery. 2 At some point in October of 2003, more than three and one-half years after the award was issued, Yingling asked Millennium to authorize surgery for his neck and back. Millennium opted to have Yingling undergo an independent medical examination (“IME”). By letter of January 19, 2004, Yingling was notified that the IME had been scheduled for February 26, 2004, at noon, at the office of neurosurgeon ¹²⁸ Richard Cohen, M.D., at Greater Baltimore Medical Center (“GBMC”). Yingling already was scheduled to work a twelve hour shift on February 26.

His supervisor told him that he would be taken off the schedule for that day. Yingling protested that he did not want to be taken off the schedule. Rather, he would come to work that day and attend the IME, and he expected to be paid his regular wage for the full day, including the time the examination would entail. His supervisor advised Yingling that he would not be paid for the time spent attending the IME.

Yingling complained to his union representative, who intervened and had discussions with representatives of Millennium. As a result, Millennium and Yingling entered into an agreement, as memorialized in a February 9, 2004 memorandum from Rodney Hagins, Yingling’s supervisor, to Yingling. The memorandum states: Larry, you have requested time off to go for your Independent Medical Evaluation (IME), on February 26, 2004 at 12:00 PM. I have made arrangements on the labor schedule to cover your JOB while you are off site.

You will be expected to report to work at your normal starting time at 8:00 AM, you can leave for your appointment at 10:30 am. After you have finished with your Evaluation you will be expected to report back to work. You will be allowed Vk hours for travel time. You will need a signed document from G.B.M.C. or the Doctor stating the time they were finished with you.

In fact, Yingling attended the IME on February 26, 2004, and was paid his full regular wage for that day. Based on the IME and information in the records of Yingling’s treating neurosurgeon, Millennium denied the request for neck and back surgery. On September 29, 2004, six and one-half years after the last (April 13, 1998) payment of TTD benefits, Yingling filed issues with the Commission seeking authorization for the surgeries and for TTD benefits. On October 22, 2004, Millennium filed issues challenging the surgeries as not medically necessary for ¹²⁹ treatment of the injuries and opposing the TTD benefits request on the ground that it was barred by the five-year limitations provision in LE section 9 — 736(b)(3).

The Commission held a hearing on the issues on February 9, 2005. On March 15, 2005, it entered an order denying the authorization request for the surgeries and ruling that the TTD benefits request was time-barred. Yingling filed an action for judicial review in the Circuit Court for Baltimore County. By then, he had undergone both surgeries.

The case was tried to the court in an evidentiary hearing, in which testimony and other evidence that was not presented to the Commission was introduced. The court reversed the Commission’s decision denying authorization for the neck surgery, affirmed its decision denying authorization for the back surgery, and further affirmed its decision denying TTD benefits on the basis of limitations. Yingling noted a timely appeal of the circuit court’s decision denying him TTD benefits. DISCUSSION I. The Maryland Workers’ Compensation Act is codified at LE sections 9-101 et seq.

(“the Act”). 3 Three sections of the Act bear on the contentions advanced in this appeal. First, in pertinent part, section 9-736 provides: (b) Continuing powers and jurisdiction; modification. — (1) The Commission has continuing powers and jurisdiction over each claim under this title. (2) Subject to paragraph (3) of this subsection, the Commission may modify any finding or order as the Commission considers justified. ¹³⁰ (3) [T]he Commission may not modify an award unless the modification is applied for within 5 years after the latter of: (i) the date of the accident; (ii) the date of disablement; or (iii) the last compensation payment. (Emphasis supplied.) Second, section 9-667, under the “Benefits” subtitle, is captioned “Wage reimbursement,” and reads: In addition to any other compensation paid to a covered employee entitled to compensation under this title, the employer or its insurer shall reimburse the covered employee for lost wages due to time spent: (1) being examined by a physician or other examiner at the request of the employer or its insurer; and (2) attending and traveling to and from a Commission hearing scheduled as a result of a continuance caused by action of the employer or its insurer.

(Emphasis added.) Finally, section 9-101(e)(l) defines “compensation” as “money payable under this title to a covered employee or the dependents of a covered employee.” 4 Yingling contends that the regular wage Millennium paid him for February 26, 2004, the day of his IME, was a “wage reimbursement” benefit under section 9-667, and hence was a “compensation payment” within the meaning of section 9-736(b)(3)(iii). Therefore, the five-year limitations period in that subsection began to run on February 26, 2004, not on April 13, 1998, and had yet to expire on September 29, 2004, when he filed his request to re-open his claim for TTD benefits. Yingling maintains that, on the facts before it, the circuit court erred in concluding otherwise. Millennium responds that Yingling was not paid to attend the IME on February 26, 2004; rather, his regular wages were not docked for that time.

Therefore, he did not receive a “wage reimbursement” benefit under section 9-667. Alterna ¹³¹ tively, even if the wage Yingling was paid for the time he spent attending the IME on February 26, 2004 qualifies as a “wage reimbursement,” under section 9-667, it was not a “compensation payment,” within the meaning of section 9-736(b)(3)(üi), as it was not paid incident to an order or award of the Commission. We conclude that the regular pay that Yingling received for February 26, 2004, was not a “wage reimbursement,” under section 9-667. The meaning of statutory language is a question of law that we decide de novo.

Davis v. Slater, 383 Md. 599, 604 , 861 A.2d 78 (2004). Our primary goal in construing a statute is to “ascertain and effectuate” the intent of the legislature. Clipper Windpower v. Sprenger, 399 Md. 539, 553 , 924 A.2d 1160 (2007). We begin with a reading of the plain language of the statutory text.

Walker v. Dep’t of Human Res., 379 Md. 407, 420 , 842 A.2d 53 (2004). “If the legislative intent is clear from this plain language reading, there is normally no need to probe further, and our inquiry comes to an end.” Casey v. Mayor and City Council of Rockville, 400 Md. 259, 288 , 929 A.2d 74 (2007). Neither Maryland appellate court has had reason to interpret the meaning of section 9-667, as it now exists, or its predecessor statutes. Yingling argues that the opening clause of the section, “[i]n addition to any other compensation paid to the covered employee ...,” means that “wage reimbursement” is a form of a “compensation” under the Act. In the case at bar, whether “wage reimbursement” is a form of compensation is only a relevant question, however, if the regular pay that Yingling received for February 26, 2004 was, for the period of time Yingling attended the IME that day, a “wage reimbursement.” The plain meaning of the word “reimbursement” does not support such a conclusion, however.

The ordinary dictionary definition of “reimburse” is “to make repayment to for expense or loss incurred” and “to pay back; refund; repay.” Random House Webster’s Collegiate Dictionary, 1135 (1995). See also Merriam Webster’s Colle ¹³² giate Dictionary 1049 (11th ed.2003) (defining “reimburse” to mean “to pay back to someone” or “to make restoration or payment of an equivalent to”). In a