This аppeal stems from an order of the Circuit Court for Baltimore County affirming the Workers’ Compensation Commission’s (the “Commission”) denial of a Petition to Reopen
Whether the Workers’ Compensation Commission erred in ruling that appellant’s withdrawal of the Issues filed in conjunction with the Petition to Reopen constituted a withdrawal of the petition?
We answer this question in the negative, and, therefore, shall affirm the judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
Beforе this Court, appellees, Gill Simpson Electric and Zurich American Insurance Company, and appellant presented an agreed statement of facts, which we quote:
On November 9, 2002, [ajppellant [ ] sustained a compensable work related injury to his back. Following a course of treatment, a hearing was held on the nature and extent of any permanent disability that [appellant] suffered as a result of the injury.
On February 26, 2004, the Workers’ Compensation Commission found [ajppellantsustained a 25% disability under “other causes” for injuries related to his back, with 20% related to the accident and 5% related to pre-existing conditions. The award entitled [ajppellant to 100 weeks of payments (less attorney’s fees and expenses) and was properly paid by [ajppellees. It is agreed that the last payment of compensation to [ajppellant was July 27, 2004.
On February 15, 2005, [ajppellant properly filed a Petition to Reopen under Section 9-736 of the Labor & Employment Article.[3 ] In addition, [ajppellant filed an Issue Sheet asking for Authorization for Medical Treatment. At that time, [ajppellees agreed that the medical treatment was causally related, reasonable and necessary. At that point, with no hearing necessary, [ajppellant filed a withdrawal of the Issues at the Commission and no hearing was held.
During the next few years, various [Ijssues arose between the parties regarding the payment and provision of medical treatment. The parties were able to resolve these [Ijssues without a hearing and, each time, the [Ijssues were withdrawn by [ajppellant and no hearing was held.
On September 22, 2009, [ajppellant obtained a permanency evaluation from the same physician who rated him for the prior permanency hearing in 2004. On October 22, 2009, [ajppellant filed Issues with the Commission requesting a hearing on the issue of “Worsening-Back”. Appellees filed an Issue sheet with the Commission on the issue of “Is this claim barred by 9-736, since the last payment of compensation took place o[n] 7/24/04?”
After a hearing, on January 14[ ], 2010, the Commission found, inter alia:
[TJhat the Petition to Reopen for Worsening of Condition is barred by Limitations:
The Order of permanent partial disability is dated 2/26/04 and the final payment of that Award was 7/27/04. The claimant filed a Petition to Reopen for Worsening of Condition on 2/15/05, but those [Ijssues were withdrawn on 3/30/05. No new [Ijssues for worsening of condition were filеd until 10/22/09, more than five years after the last indemnity payment.
(Emphasis added).
On February 4, 2010, appellant timely filed a Petition for Judicial Review. On September 24, 2010, appellant filed a motion for summary judgment. On November 1, 2010, appellees filed “Employer and Insurer’s Re[ Jsponse to Claimant’s M[ Jotion for Summary Judgment and Cross-Motion for Summary Judgment by the Employer and Insurer.” In a memorandum in support of the cross-motion for summary judgment, appellees argued that appellant’s “[wjithdrawal of Issues [wajs [tjantamount to a [wjithdrawal of the Petition to Reopen.” On February 8, 2011, the circuit court held a hearing on the motions. On April 25, 2011, the circuit court issued an Opinion and Ruling, granting appellee’s cross-motion for summary judgment and affirming the Commission’s January 14, 2010 order. The circuit court found that appellant’s withdrawal of the Issues constituted a withdrawal of the Petition to Reopen.
Appellant contends that the circuit court erred in granting the cross-motion for summary judgment and in finding that withdrawal of the Issues filed with the Commission constituted a withdrawal of the Petition to Reopen. Appellant argues that, because the filing of Issues is governed by the Code of Maryland Regulations (COMAR) and a Petition to Reopen is filed pursuant to the Maryland Annotated Code, the withdrаwal of the Issues is not a withdrawal of the petition. Appellant asserts that the “doctrine of liberal construction” applies in this case, requiring that all provisions in the Workers’ Compensation Act be construed liberally in his favor. Relying on Dove v. Montgomery Cnty. Bd. of Educ.,
Appellees respond that the withdrawal of the Issues constituted a withdrawal of the Petition to Reopen. Appellees contend that the allegation of a change in disability status in a Petition to Reopen must be accompanied by the submission of Issues at the time of filing. Relying on Dove,
Appellant replies that the holding in Buskirk,
Standard of Review
Generally, in an appeal from judicial review of an agency action, we review the agency action directly, not the decision of the trial court. Anderson v. Gen. Cas. Ins. Co.,
Judicial review of the Commission’s decisions is governed by Md.Code Ann., Labor and Employment Art. (“L.E.”) § 9-745, which provides, in pertinent part:
(c) Determination by court.—The court shall determine whether the Commission:
(1) justly considered all of the facts about the accidental personal injury, occupational disease, or compensable hernia;
(2) exceeded the powers granted to it under this title; or
(3) miscоnstrued the law and facts applicable in the case decided.
(d) Request for jury trial.—On a motion of any party filed with the clerk of the court in accordance with the practice in civil cases, the court shall submit to a jury any question of fact involved in the case.
(e) Disposition.—
(1) If the court determines that the Commission acted within its powers and correctly construed the law and facts, the court shall confirm the decision of the Commission.
(2) If the court determines that the Commission did not act within its powers or did not correctly construe the law and facts, the court shall reverse or modify the decisiоn or remand the case to the Commission for further proceedings.
Under the statutory scheme, “an appeal from the Workers’ Compensation Commission may follow two alternative modalities” in the trial court. Simmons v. Comfort Suites Hotel,
Applicable Law
The Maryland Workers’ Compensation Act is remedial and, as a result, is generally interpreted liberally in favor of the claimant. Harris v. Bd. of Educ.,
Where the statutory languаge is plain and free from ambiguity, and expresses a definite and simple meaning, courts do not normally look beyond the words of the statute itself to determine legislative intent. If the words of the statute are susceptible to more than one meaning, it is necessary to consider their meaning and effect in light of the setting, the objectives and [the] purpose of the enactment. Therefore, we construe the statute as a whole and interpret each of its provisions in the context of the entire statutory scheme.
Md. Ins. Admin. v. Md. Individual Practice Assn., Inc.,
The modification of a disability award by the Commission is governed by L.E. § 9-736, which provides, in pertinent part:
(a) Readjustment of rate of compensation.—If aggravation, diminution, or termination of disability takes place or is discovered after the rate of compensation is set or compensation is terminated, the Commission, on the application of any party in interest or on its own motion, may:
(1) readjust for future application the rate of compensation; or
(2) if appropriate, terminate the payments.
(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.
(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 added). Despite the general tendency toward liberal interpretation of the Workers’ Compensation Act, the statute of limitations in L.E. § 9-736(b)(3) is to be strictly construed. Stevens v. Rite-Aid Corp.,
The Commission is granted the power to promulgate regulations pursuаnt to L.E. §§ 9-309 and 9-701. L.E. § 9-309(a) provides generally that “[t]he Commission may adopt regulations to carry out [][T]itle[ 9 of the Maryland Annotated Code.]” L.E. § 9-701 provides, more specifically:
Subject to [ ][T]itle[ 9 of the Maryland Annotated Code], the Commission shall:
(1) adopt reasonable and proper regulations to govern the procedures of the Commission, which shall be as simple and brief as reasonably possible;
(2) determine the nature and the form of an application for benefits or compensation;
(3) regulate and provide for the nature and form of notices and for the service of notiсes;
(4) regulate and provide for the nature and extent of evidence and proof and for the method of taking and providing evidence and proof to establish a right to compensation;
(5) regulate the method of conducting an investigation or physical examination; and
(6) set the time within which an adjudication or award shall be made.
Pursuant to this grant of authority, in order to administer L.E. § 9-736, the Commission has enacted several applicable regulations which are contained in COMAR, Title 14, Section 9. COMAR 14.09.01.16 provides, in pertinent part:
A. A party seeking modification by the Commission of a prior finding or оrder shall file with the Commission a motion for reconsideration.
B. The motion shall state specifically the finding or order that the party wishes modified and the facts and law upon which the party is relying as grounds for modification.
C. When the movant seeks an increase in a prior award for permanent partial disability, the parties shall comply with Regulations .10,[6 ] .12, and .14A.[7 ]
(Emphasis added). COMAR 14.09.01.12A, in turn, instructs that “[a] claimant alleging permanent disability shall file with the Commission an issue expressly claiming permanent disability.” (Emphasis added).
“[W]ith regard to the validity of a regulation promulgated by an administrative agency, the governing standard is whеther the regulation is consistent with the letter and spirit of the law under which the agency acts.” Lussier v. Md. Racing Comm’n,
Analysis
In this case, the parties agree that there is no dispute of material facts. The request for judicial review of the Commission’s decision involved only whether the withdrawal of the Issues submitted with the Petition to Reopen constituted a withdrawal of the petition itself, and thus whether the October 22, 2009, filing was barred by L.E. § 9-736(b)(3). Because our review concerns a question of law, specifically one of statutory interpretation, we review the Commission’s decision de novo. Kelly,
On July 27, 2004, the last compensation payment was made to appellant. Under the statute of limitations in L.E. § 9-736(b)(3), the Commission was divested of authority to modify the award five years from that date, unless a Petition to Reopen alleging a change in disability was properly filed. Vest,
Having reviewed the matter, we agree with the Commission that withdrawal of the Issues constituted a withdrawal of the Petition to Reopen. Although L.E. § 9-736 allows a party to apply for modification of a previous award, the statute does not specify the procedure to be employed for such an application. Section 9-701 provides that the Commission shall adopt “regulations to govern the procedures of thе Commission” and “determine the nature and form of an application for benefits[.]” In accordance with the grant of authority under these sections, the Commission promulgated COMAR 14.09.01.16 and COMAR 14.09.01.12. COMAR 14.09.01.16 states that any request for an increase of an award for
It is well settled in Maryland that “unless the context indicates otherwise the word ‘shall’ is presumed to have a mandatory meaning inconsistent with the exercise of discretion.” Carter v. Harris,
Aside from the matter of their withdrawal, the Issues filed by appellant on February 15, 2005, failed to satisfy the requirement of COMAR 14.09.01.12 that Issues “expressly claim[] permanent disability.” In the Issues, appellant requested only continuing medical treatment, which as appellees agreed, was warranted and causally related to appellant’s compensable injury. As this Court made clear in Buskirk, supra, continuing medical treatment is different from increased permanent disability. In Buskirk, we stated that the: “Reopening of disability is not tied to the unlimited obligation for medical benefits[.]”
Appellant contends that the Petition to Reopen stands on its own as a request for a change in disability status because, “[u]nlike Buskirk, the petition in the instant case not only requested medical treatment, but also [] allege[d] a change in disability status[,]” thus putting appellee on notice of the request for increased disability. Simply put, we disagree. In the Petition to Reopen filed in February 2005, appellant checked a box indicating an increase in disability. At the same time, in the petition, appellant alleged that he required additional medical treatment. The petition was accompanied by Issues requesting only continuing medical treatment. The parties came to an agreement regarding the medical treatment, and the Issues were withdrawn. For the next four years, appellant made no reference to any request for an increase in disability before the Commission. Appellant subsequently filed Issues on June 15, 2005, and July 20, 2009, requesting medical treatment and, in both instances, the matter was resolved by the parties.
In Buskirk,
The language and history of [L.E. §] 9-736 reveals the General Assembly’s intent to restrict the Commission’s authority to reopen prior awards. See Waskiewicz v. GMC,342 Md. 699 , 712,679 A.2d 1094 (1996), overruled on other grounds by Mayor of Baltimore v. Schwing,351 Md. 178 , 180,717 A.2d 919 (1998); Vest,329 Md. at 475-76 ,620 A.2d 340 ....
Ordinarily, remedial legislation is “construed liberally in favor of injured employees in order to effectuate the legislation’s remedial purpose.” Marsheck v. Board of Trustees of the Fire & Police Employees’ Retirement Sys.,358 Md. 393 , 403,749 A.2d 774 (2000); see Martin v. Beverage Capital Corp.,353 Md. 388 , 400,726 A.2d 728 (1999); Montgomery County v. McDonald,317 Md. 466 , 472,564 A.2d 797 (1989). This general rule of construction does not apply to limitations provisions, however, including the one in question. See Stevens v. Rite-Aid Corp.,340 Md. 555 , 569,667 A.2d 642 (1995) (“The general rule of liberal construction of the Wоrkers’ Compensation Act is not applicable to the limitations provision of [L.E. §] 9-736.”).
While the issue before us is one of first impression, prior appellate decisions have strictly applied the five-year bar contained in [L.E. §] 9-736. As previously stated, the Commission may not modify an award unless the modification is applied for within five years after the last compensation payment.
In the case before us, appellant argues that his petition filed on May 13, 1993, placed the Commission on notice of his worsening condition because, although resolved by the parties, the petition was never withdrawn. We do not agree. Appellant’s May 13, 1993, petition was filed to seek medical benefits, which were paid. The petition did not allege or request a change in disability status. Appellant’s reasoning is contrary to the General Assembly’s intentin enacting [L.E. §] 9-736 and would allow all recipients of workers compensation to file a protective petition for modification and avoid the statute of limitations in the event a change in disability status occurred at a future date. See McMahan v. Dorchester Fertilizer Co., 184 Md. 155 , 160,40 A.2d 313 (1944) (“Accordingly, the Courts should refuse to give statutes of limitations a strained construction to evade their effeсt.”).
As evident, appellant’s contention that he may file a protective request for a change in disability status within the five-year time frame, and later supplement the request with Issues, is directly refuted by this Court’s observation in Buskirk—that such reasoning is contrary to the intent of the General Assembly in enacting L.E. § 9-736 and would allow petitioners to “avoid the statute of limitations in the event a change is disability status occurred at a future date.”
Equally as important, although appellant checked the box indicating an increase in disability on the petition that was filed in February 2005, it is evident that he filed the petition to seek medical benefits—which were paid—and not to obtain an increase in disability. This is demonstrated by the withdrawal of the Issues filed in February 2005, and the subsequent filings of Issues in June 2005, and July 2009, for medical benefits, which were resolved by the parties. Although appellant indicated in the February 2005, petition that there was an increase in disability, he did not file an Issue expressly claiming permanent disability, as required by COMAR 14.09.01.12A, until 2009, after the expiration of the five-year statute of limitations. By failing to file an Issue requesting a change in disability, appellant failed to effectively request an increase in disability under L.E. § 9-736 or place aрpellees on notice as to his claim for a change in disability. Rather, the Issues placed appellees on notice only as to appellant’s claims for continuing medical treatment.
Appellant "wrongly relies on Dove, supra, for the proposition that Issues need not be filed at the time of filing a petition to reopen. In Dove, we held that, pursuant to COMAR 14.09.01.10 and 14.09.01.14, a claimant need not submit complete documentation of disability at the time of filing, as long as there is a basis in fact for the claim and all medical documentation is submitted prior to hearing.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
Notes
. In his brief, appellant refers to a Request for Reconsideration/Modification, which is the title of the form that was providеd by the Commission. In case law, the terms “Petition to Reopen” and “Request for Reconsideration/Modification” are used interchangeably. See Giant Food, Inc. v. Eddy,
. Appellant phrased the issue as follows:
There is no legal basis that supports a finding that the withdrawal of an ''Issue”, filed under COMAR, amounts to the withdrawal of a Request for Reconsideration/Modification, filed pursuant to § 9-736 Labor & Employment Article.
. The record reflects that on the Petition to Reopen, appellant checked two boxes on a pre-printed fоrm—one box labeled ”[t]he claimant’s permanent disability has increased” and another box labeled "Other.” In the box labeled "Other,” appellant included the following additional information: "The Claimant requires additional medical treatment.”
. This Court noted in Spradlin that the references in L.E. § 9-745(c) and (e) to “facts” apply “only to the issue of whether the Commission’s fact-finding was, as a matter of law, clearly erroneous because not supported by legally sufficient evidence.”
. Vest was decided under Md.Code Ann., Art. 101,' § 40(c), the predecessor to L.E. § 9-736. The Court explained that the holding would be applicable to cases concerning L.E. § 9-736, as follows:
[I]n 1991 the General Assembly recodified Article 101, § 40, as [L.E.] § 9-736....
According to the Revisor's Note this provision is "new language derived without substantive change from former Art. 101, § 40(b) through (d).” We apply former § 40 since this case arose prior to the recodification, but note that this decision is applicable to the Act in its present form as well.
Vest,
. COMAR 14.09.01.10 concerns the transmission of medical documentation, which is not at issue in this appeal.
. COMAR 14.09.01.14A provides, in pertinent part:
(1) A party desiring a hearing shall file a Request for Hearing with the Commission. In the request, the party shall state with clarity and in detail the facts or matters of law to be determined, including but not limited to the following issues:
(a) The inclusive dates of any temporary total disability;
(b) Permanent disability, designating each part of the body affected, and any alleged psychiatric disability; and
(c) Medical expenses, designating each amount and creditor.
Appellant contends that a Request for Hearing is synonymous with Issues. That Issues may serve a secondary purpose under COMAR 14.09.01.14A does not alter any requirement under COMAR 14.09.01.12 related to the filing of Issues.
. At oral argument, appellant contended that, in Eddy,
It is clear that, when a Petition to Reopen is filed immediately prior to the expiration of the five year limitation period, the Commission is not barred from promptly hearing the claimant’s Issues. See Dove,
. Although we are not required to give deference to the Commission's interpretation of the regulation, we note that the Commission clearly considers the filing of Issues to be mandatory. At the top of WCC H30R, the form provided by the Commission for a Petition to Reopen, the instructions state: "This form must be accompanied by Issues (WCC Form H24R).” Available at http://www.wcc.state.md.us/PDF/ PDF_Forms/eReqMod.pdf (Emphasis in original).
. At oral argument, appellant contended that there is no difference between a change in disability status and the need for continuing medical treatment. We find no support for this contention, and note that it directly contradicts Maryland case law.
. Appellees contend that if the Petition to Reopen was not withdrawn by the withdrawal of the Issues, appellant’s claim is still barred by the statute of limitations because he did not provide medical documentation in a timely manner and did not have a basis in fact for filing a Petition to Reopen for worsening of condition. Because we conclude that the withdrawal of the Issues in this case constituted a withdrawal of the Petition to Reopen, we need not reach this issue.