Middleton v. Bd. of Educ.

KEVIN MIDDLETON v. BOARD OF EDUCATION OF MONTGOMERY COUNTY

No. 2193

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

December 15, 2020

Circuit Court for Montgomery County

Case No. 433951V

UNREPORTED

Nazarian, Beachley, Zic, JJ.

Opinion by Beachley, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

On February 3, 2011, appellant Kevin Middleton was employed as a teacher by the Board of Education of Montgomery County (the "County") when he slipped on ice and fell, injuring his neck. After Middleton filed a workers' compensation claim, the Maryland Workers' Compensation Commission ("Commission") found, by an Order dated October 26, 2012, that Middleton sustained a compensable accidental injury. The October 26, 2012 Order expressly provided that Middleton's claim for compensation remained "pending until such time as the nature and extent of [Middleton's] disability, if any, can be determined."

On January 8, 2016, Middleton filed a claim for permanent partial injury.¹ The parties do not dispute that Middleton filed his January 8, 2016 claim within the five-year statute of limitations prescribed in Md. Code (1991, 2016 Repl. Vol.), § 9-736(b)(3) of the Labor and Employment Article ("LE").

The Commission heard Middleton's January 8, 2016 claim on January 30, 2017. At that hearing, Middleton affirmed that he was still experiencing "discomfort," including headaches "at the base" of his neck and "tenderness" in his left shoulder. Although he was not receiving "active treatment" as of the date of the hearing, Middleton expressed a desire to seek further medical treatment. Because Middleton had not reached maximum medical improvement, the parties agreed that the permanency claim could not "go forward" at that hearing. Middleton's counsel stated that she could not withdraw Middleton's claimbecause of a "statute of limitations problem." The County's attorney responded that he "underst[ood] the issue with limitations but, of course, it's the County's position that this [] reserving on the issue or continuing the issue would be an improper use of the Commission's authority to essentially extend the limitations period[.]" The Commission granted a continuance, providing in its January 30, 2017 Order that "the issues were raised but not litigated."

The hearing was rescheduled for May 1, 2017. At the outset of that hearing, the County raised a statute of limitations defense. The County asserted two separate theories in support of its limitations defense. First, the County argued that under COMAR 14.09.03.02F,² Middleton's claim was withdrawn as a matter of law on January 30, 2017, when he was not prepared to litigate his permanency claim. Thus, according to the County, limitations expired on February 3, 2016, five years after Middleton's accidental injury. Second, though the County conceded that the January 8, 2016 claim was timely filed, the County contended that Middleton's claim was barred because he did not have a written evaluation of permanent impairment when he filed his permanency claim on January 8, 2016, as required by COMAR 14.09.09.02B.³

In its June 1, 2017 Order, the Commission awarded Middleton permanent partial disability benefits. Relevant to this appeal, the Commission determined that the "claim for permanent partial disability was timely filed and the statute of limitations has not run."

On June 29, 2017, the County filed in the Circuit Court for Montgomery County a "Petition For Judicial Review On The Record." Middleton filed a response to the County's petition and a separate request for de novo judicial review and request for jury trial pursuant to LE § 9-745(d). The court subsequently denied the County's Motion to Strike Request for De Novo Jury Trial.

The County thereafter moved for summary judgment, asserting the same two grounds that it had raised before the Commission:

Although issues were filed within the five year limitations period, the issues did not toll the running of the five year statute of limitations for filing for indemnity benefits for the following reasons: (1) the issues were not filed in compliance with the applicable COMAR regulations as [Middleton] did not obtain a medical evaluation regarding impairment prior to the time of filing and (2) even if the issues were filed timely, they were effectively withdrawn when [Middleton] was not ready to proceed with the hearing on permanent partial disability. By ordering an increase in permanent partial disability when [Middleton] did not have a timely written evaluation of permanent impairment and was not ready to proceed at the time of the hearing on permanent partial disability, the Commission exceeded its authority under the Maryland Worker's Compensation Act[.]

The County continued to press both grounds at the summary judgment hearing in the circuit court.

In granting summary judgment in favor of the County, the court stated in pertinent part,

The question is whether, if the regulatory scheme requires you to do A before doing B and you don't do it, does the statute run? Here it did under a plainreading of the statu[t]e and the regulation harmoniously. I certainly understand why the commissioner did what she did, but looking at what the Court of Special Appeals said in [McLaughlin v. Gill Simpson Elec., 206 Md. App. 242 (2012)] and other

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