Gang v. Montgomery Cnty.

PETER GANG v. MONTGOMERY COUNTY, MARYLAND

No. 67

COURT OF APPEALS OF MARYLAND

Argued: April 5, 2019

September Term, 2018

June 24, 2019

WORKERS' COMPENSATION ACT - MD. CODE (1991, 2016 REPL. VOL.), § 9-736 LAB. & EMPL. ART. - CONTINUING POWERS AND JURISDICTION; MODIFICATION OF PREVIOUS ORDERS AND AWARDS

Court of Appeals held that the Workers' Compensation Commission had the authority to reopen an injured employee's award of permanent partial disability compensation and retroactively adjust the rate of compensation therein because the request for such, which was made within five years from the date of the employee's last compensation payment, was based on a mistake or error.

Court of Appeals held that Section 9-736(a) of the Labor and Employment Article, the subsection which governs the readjustment of a rate of compensation in cases of aggravation, diminution or termination of disability, does not limit or otherwise restrict the jurisdiction of the Workers' Compensation Commission to modify its previous findings, orders or awards under Section 9-736(b), provided the modification sought is applied for within five years after the date of the accident, the date of disablement or the last compensation payment.

Court of Appeals held that claimant had not waived right to request a higher rate of compensation by failure to appeal, seek judicial review pursuant to Section 9-737 of the Labor and Employment Article, or failing to file a motion for rehearing pursuant to Section 9-726 of the Labor and Employment Article, where the modification had been applied for within the statutory period of limitations.

Court of Appeals held that the claimant's failure to strictly comply with the procedures of the Workers' Compensation Commission for submitting a modification application did not defeat claimant's ability to apply for relief.

Court of Appeals held that the claimant's application for the correction of the rate of compensation received from the permanent partial disability award did not impermissibly prolong the statute of limitations because the application for modification had been filed before the five-year period of limitations had expired.

Circuit Court for Montgomery County

Case No.: 423509V

Barbera, C.J., Greene, McDonald, Watts, Hotten, Getty, Battaglia, Lynne, A. (Senior Judge, Specially Assigned), JJ.

Opinion by Battaglia, J.

In this worker's compensation case, Officer Peter Gang, the Petitioner herein, was injured while working as a correctional officer for Montgomery County, the Respondent herein. We have been called upon to interpret Section 9-736 of the Labor and Employment Article, Maryland Code (1991, 2016 Repl. Vol),¹ and consider whether the Workers' Compensation Commission is statutorily authorized to modify an order that provided Officer Gang a compensation award for a permanent partial disability resulting from his workplace injury, by retroactively adjusting the rate of compensation as a result of his application within the five-year statutorily defined period of time. The Commission adjusted the rate of compensation because, as a public safety employee, Officer Gang had been entitled to a higher rate of compensation than that which he initially received, a fact that is not in dispute.

On judicial review, the Circuit Court for Montgomery County affirmed the decision of the Commission, but the Court of Special Appeals reversed, holding that the Commission was not statutorily authorized to retroactively modify Officer Gang's rate of compensation. Montgomery Cty. v. Gang, 239 Md. App. 321, 196 A.3d 533 (2018). For the reasons that follow, we shall hold that the Commission may modify the compensation award within five years from the date of the last compensation payment under Section 9-736(b) of the Workers' Compensation Act.

On September 17, 2011, Officer Peter Gang was injured while working as a Montgomery County correctional officer and, subsequently, filed a claim with the Workers' Compensation Commission ("Commission"), seeking compensation. The Commission held a hearing to determine the nature and extent of Officer Gang's injury under the Workers' Compensation Act ("the Act"),² and, thereafter, in May of 2012, issuedan Award of Compensation, providing Officer Gang recompense "at the rate of $157.00, payable weekly, beginning October 21, 2011, for a period of 70 weeks" based on a 14% industrial loss of the use of his body, which was attributable to the accidental injury.

Nearly four years later, Officer Gang filed a form entitled "Request for Document Correction"³ with the Commission, seeking an adjustment of the 2012 award, alleging thatthe rate of his compensation was incorrectly calculated, because he qualified as a "public safety employee" under Section 9-628(a)(5) of the Labor and Employment Article,⁴ and as such, was entitled to a greater rate of compensation.⁵ He also posited, in his Request for Document Correction, that the Commission had the power to amend his previous award because it possessed "continuing jurisdiction" over the previous order. The Commission agreed, and issued an amended award retroactively changing Officer Gang's rate of compensation from $157.00 to $314.00 per week for seventy weeks beginning October 21, 2011.

Montgomery County, however, filed a Request for a Rehearing on the matter with the Commission, stating: "The County did not agree to this document correction and was not asked for its agreement. Please rescind the revised order and reinstate the original order as there was no agreement to the document correction. Moreover, the original order wasissued on May 2, 2012, almost four years ago." The Commission held a hearing on the matter, and after hearing arguments, affirmed the Order which increased the rate of compensation for Officer Gang's permanent partial disability award from $157.00 to $314.00 a week, beginning October 21, 2011, for a period of seventy weeks based on his status as a "public safety employee" at the time of his injury. At the hearing, the Commissioner stated that he believed the Commission had the jurisdiction to correct an error such as this, particularly if it was a mistake made by the Commission of which none of the parties was aware.

Montgomery County filed a Petition for Judicial Review in the Circuit Court for Montgomery County. The Circuit Court held a hearing on the matter, and by order, affirmed the decision of the Commission, reasoning that the Act "provides the Commission with broad authority to make any changes that it believes are justified within five years from the latter of the date of the accident, the date of disablement or the last compensation payment, without the occurrence of" an aggravation, diminution or termination of disability.

Montgomery County appealed the decision of the Circuit Court to the Court of Special Appeals, and in a reported opinion,⁶ our intermediate appellate court reversed the decision of the Circuit Court, holding that the Commission erred in retroactively modifying Officer Gang's workers' compensation award. Montgomery Cty v. Gang, 239 Md. App.321, 196 A.3d 533 (2018). The Court first noted that "although the revisory power of the Commission under § 9-736 is broad, it is not unlimited[,]" id. at 329, 196 A.3d at 538 (quoting Sealy Furniture of Maryland v. Miller, 356 Md. 462, 468, 740 A.2d 594 (1999)), and concluded that the Act in fact limited the Commission's ability to reopen a claim and modify an award to situations in which the award was "based on a legal mistake in light of case law," id. at 330-32, 196 A.3d at 539 (citing Subsequent Injury Fund v. Baker, 40 Md. App. 339, 392 A.2d 94 (1978)), or based on a "statutory revision," Gang, 239 Md. App. at 331-32, 196 A.3d at 539 (citing Waters v. Pleasant Manor Nursing Home, 127 Md. App. 587, 736 A.2d 358 (1999), aff'd, 361 Md. 82, 760 A.2d 663 (2000)). It also concluded that the Commission may have the power to correct the rate of compensation prospectively but not retrospectively. Gang, 239 Md. App. at 332-33, 196 A.3d at 540.

The Court also rejected Officer Gang's argument that the Commission was "merely 'correcting a clerical error'" because the 2012 order constituted a final award and "[n]o action was taken by [Officer Gang] to appeal or have the Commission reconsider its decision." Id. at 333, 196 A.3d at 540. Thus, "under the circumstances of this case," the Court posited, "four years after the final award, the Commission's authority was limited to readjustment of a future rate of compensation upon a worsening or diminution of condition." Id. Finally, the intermediate appellate court noted that the Commission's actions "impermissibly extended the five-year time limit [in which to file for a modification], and thus, exceeded its statutory authority." Id. at 333-34, 196 A.3d at 540-41 (citing Seal v. Giant Food, Inc., 116 Md. App. 87, 96, 695 A.2d 597 (1997)).

Officer Gang then filed a petition for certiorari, which we granted, Gang v. Montgomery County, 462 Md. 554, 201 A.3d 1227 (2019), to consider various questions, all of which we have rephrased and abbreviated into one⁷:

Does the Workers' Compensation Commission have the authority to reopen a claim and retroactively readjust a rate of compensation within five years from the date of the last compensation payment when it finds that, based on a mistake or error, the injured employee received a lower rate of compensation than that to which he was otherwise entitled?

For the reasons that follow, we shall hold that the Commission had the authority to reopen Officer Gang's award of permanent partial disability compensation and retroactively adjust his rate of compensation because his request for such, which was made within five years from the date of his last compensation, was based on a mistake or error.

DISCUSSION

The Maryland Workers' Compensation Act was enacted by Chapter 800 of the Maryland Laws of 1914. The purpose of the Act is "'to protect workers and their families from hardships inflicted by...