*1
v.
Daniel WARD. Term, 115, Sept. 1991.
No. Maryland. Appeals Court Aug. 1993. *2 Stern, Cagley, Atty.
James J. Asst. R. County (Joyce Coun- brief) Robertson, ty Atty., County Atty., Joann Sr. Asst. all on Rockville, petitioner. (Law Conrad,
Stephen H. Chirumbole Offices of John H. brief) Gaithersburg, respondent. both on MURPHY, C.J., ELDRIDGE, Argued before and RODOWSKY, McAULIFFE, CHASANOW, and KARWACKI BELL, ROBERT M. JJ.
ELDRIDGE, Judge. case, The Compensation Workers’ Commission this after denied a claim hearing, and thereafter Twenty-one denied the claimant’s motion for a rehearing. days after the Commission’s denial of a the claim- rehearing, ant asked the to “review” The Commission rehearing. .granted request, rescinded denying rehearing, the earlier order and “reset” the case for The then rehearing. sought review of granting the Commission’s order the request resetting and rehearing. case for a The dispositive issue before us concerns employer’s entitlement review at this time.1 Ward, worker, Mr. Daniel a construction claimed that he injured accidentally his back while at work when he lifted a heavy piece of concrete. He filed a claim for compensation with the Compensation employer, Workers’ Commission. His claim, Montgomery County, contested the raising the issues of below, litigation 1. At the time of the the Workers’ Act (1957, Maryland Repl.Vol.), By was codified as Code Art. 101. wording Ch. 8 of the Acts of the statute was re-enacted with renumbered, (1991, changes and and is now contained in Code Supp.), Title 9 of the Labor and The Article. sections pertinent opinion change. were re-enacted without substantive convenience, usually statutory For we shall refer to the current sec- tions. injury which an accidental arose Mr. Ward sustained whether of his and whether his employment and in the course out of on-the-job injury. alleged disability was the result thereafter, Septem- hearing Commission held claim. disallowing Mr. Ward’s issued an order ber not that Mr. Ward had sustained found out of and the course of injury arising personal accidental disability was not caused his and that his employment injury. accidental alleged later, filed a days on October Mr. Ward
Eleven asserting just he identified a rehearing, motion for had employer op- alleged injury.2 accidental witness motion, that under the circumstances contending posed discovered identity newly did not constitute the witness’s complied with the that Mr. Ward had evidence and for rehear- rules motions procedural regarding *3 newly discovered evidence.3 On October ground on the ing for 1989, motion re- 12, Commission denied Mr. Ward’s the hearing. 2, 1989, a letter submitted November
Mr. Ward then of Claimant’s Motion for your “review requesting [of] jurisdiction un- Rehearing as the Commission has 40(c) The law.”4 der Section the Workers’ rehearing days from the date party may A a motion for within 15 file 2. (1991), 9-726(a) § of the Labor Commission’s decision. Code the rehearing only grounds upon Employment which a and Article. The newly may granted or evidence. 9- are error law discovered 726(d)(3). (1992), 14.09.01.14.D(3) (COMAR) Regulations By Maryland Code of 3. 14.09.01.10.C), (1983), seeking rehearing (formerly party COMAR newly specifically the basis of discovered evidence must describe on the delay discovering for the the new evidence and must state the reason addition, copies include of all documen- evidence. In the movant must forming tary basis for the motion. evidence continuing powers jurisdiction provision now found in and 4. Article, 9—736(b) provides which as of the Labor and follows: an order dated November responded by Commission as follows: part which stated November, 1989, by day is ... this 16th “It ORDERED Compensation Commission Workers’ 12, 1989, hereby be and the same is dated October Order annulled; and further ORDERED that rescinded and Undersigned.” Rehearing reset before case be Montgom- in the Circuit Court for then filed employer action for County present ery court, In 16. the circuit November motion, In its summary judgment. moved for each the November letter was essen- argued that employer provided is not rehearing, a second motion for which tially Consequently, or the Commission’s rules. by statute continued, only remedy fol- argument Ward’s employer’s denial of his October motion for lowing the Commission’s thirty review within petition was to file a argued further 1989.5 The days after October "(b) modification.—(1) jurisdiction; Continuing powers and continuing powers over each claim has under this title. subsection, (3) Subject paragraph of this justi- may modify any finding order as the Commission considers fied. section, (c) (3) Except provided of this the Com- in subsection applied may modify an award unless the modification is mission years payment.” for within 5 after the last B4, party aggrieved by agency Maryland Rule 5. Under former thirty days which to file an action for generally had decision July Chapter the circuit court. Effective review in *4 B, replaced by Maryland Rules was rescinded and Subtitle of the Rules, alia, Maryland governing, judicial review of 7 of the inter Title replaces agency Rule decisions. Rule 7-203 former administrative provides as follows: B4 and “(a) Generally statute, provided by petition Except in this Rule or a as otherwise days judicial within 30 after the latest of: for review shall be filed (1) sought; the order or action of which review is the date of (2) agency of the order or the date the administrative sent notice petitioner, required by to the if notice was law to be sent to action petitioner; or stayed by the was not filing petition time for such a that the therefore, that, for reconsideration and request November when absolutely final 12th became October days thirty was filed within for review no action Mr. Ward summary judgment, for In his motion thereafter. asked the Commis- simply he had argued that November that Mr. Ward maintained one of its orders. modify sion to is within the broad denying rehearing of an order modification 9-736(b) § of the by on the Commission conferred powers employer In response, Article. Labor and 9-736(b) been there has applies where contended that hearing, a the circuit court After compensation. an award and denied summary judgment motion for granted Ward’s motion. the employer’s Special to the Court appeal noted court, unreported in an intermediate
Appeals. appellate of the circuit court. The judgment affirmed the opinion, con- had held that the Commission Special Appeals Court of 9—736(b) grant Mr. Ward’s under tinuing jurisdiction that for The court reasoned request November modification. for period filing petition time for thirty-day not ex- 12th order had of the Commission’s October review lost when the Commission finality that order its pired because Special that Appeals to review it. The Court of stated agreed Commission, for “by accepting ruling a motion thereon, authority to its appeal pursuant extended the time 9-736(b) court concluded modify appellate ].” under [§ over Commission did lose running filing by of the time the claim virtue review. petition agency's petitioner notice of the order or the date the received action, by required by petitioner, was to be received notice law (b) Party Petition Other timely any person may file petition, one files a other If
petition agency days after the date the mailed notice petition, period forth in filing of the first or within the time set (a), section whichever is later.” *5 526 for a writ of
Thereafter, this Court employer petitioned granted. which we certiorari matter, of whether the we address the issue a threshold
As 1989, for a 16, setting the case November judicial immediate review.6 subject final and rehearing was the Work review of a decision of judicial right § 9-737 of the provided by ers’ Article, which states: Labor and of a covered employee, dependent covered employer, “An aby person aggrieved other interested any employee, Commission, Inju- including Subsequent decision of Fund, appeal Employers’ may Fund and the Uninsured ry in accordance with of the Commission from the decision Rules.”7 Maryland B of the Subtitle cases, the “decision” of it is well-established our Under under the subject judicial which is in a case. decision or order is the statutory language final Graham, 543, 553, 555 A.2d v. International 315 Md. Murray of the final order or final action 502, (defining a 507 v. review); Paolino for purposes finality of the Commission's order for the issue of the 6. Mr. Ward raised Court; by the trial was not raised in or decided time in this it the first Furthermore, Special Appeals. the issue does court or the Court the circuit court to subject-matter strictly involve the Ordinarily, we would not review. entertain the action 8-131(a). Maryland raised below. Rule which was not address issue issue, however, light of Bd. Ed. this We shall consider 625, 774, 787, (1986), Hubbard, 506 A.2d 631 305 Md. Dorchester Co. v. as follows: where we stated remedy and exhaust an administrative the failure to invoke “While being deprived of funda- ordinarily result in a trial court's does not nevertheless, policy public in- jurisdiction, because of mental volved, jurisdictional purposes like a matter is for some treated primary jurisdiction and exhaus- Consequently, question. issues Court sua will be addressed administrative remedies tion of by any though party.'' not raised sponte even (1957, formerly codified in Code provision for review was 7. The 5, noted, 101, 56(a). previously supra note Repl.VoL), As Art. 1985 7, Title Maryland is now set forth as B of the Rules former Subtitle Rules; govern judicial Maryland provisions these Chapter agencies. review of administrative 527 (1989); Co., A.2d 314 Md. & McCormick Leasure, A.2d 192 Md. v. Vein Coal Co. Big Goslin, 74, 78, 160 (1949); v. 163 Md. Company Tobacco *6 (1932) the order 804, obviously is meant (“by ‘decision’ A. 806 case”). See Holi disposes [the Commission] which 390, 395, 554 A.2d County, Md. 315 Spas Montgomery v. day (1989) (“As rule, an action 1197, general 1199 if the adminis- only lie an order will administrative review v. final”); Human Rel. B.G. Md. Comm’n on order is trative (1983) Co., 46, 205, (“Generally, 51, A.2d 209 E. Md. 459 & 296 final there is a can to a court when resort Corp. also Dust proceeding”). See Gold in the administrative (1930). 500, Zabawa, 664, 666-667, A. 501 Md. 152 159 v. however, falls within an that case employer argues, The finality. The employer “exception” principle requiring to the is immedi- interlocutory administrative order contends that appeal when “the issue on is ately subject to (Reply its Brief jurisdiction.” exceeded [agency] whether 6). at by the upon relied “exception”
We have held only under circumstances “where an employer applicable is ” jurisdiction.’ Hu is without Comm’n ‘agency palpably Transit, 385, v. 294 449 A.2d 390 man Rel. Mass Md. Treatise, Davis, 20, Law Ch. (quoting Administrative (1958)). Blumberg, Co. v. George’s § 20.01 See Prince denied, (1980), cert. Md. 418 A.2d U.S. (1981). 869, 66 Commission 101 S.Ct. L.Ed.2d 808 in jurisdiction” this case. Its not without “palpably was cases, compensation to workers’ jurisdiction clearly extends in and injury general, claims based on accidental in See on Human Rel. v. particular. to this claim Comm’n Transit, 235, 449 294 Md. at A.2d at 390. supra, Mass concern the disputed present issue in the case does not Instead, “jurisdiction.” fundamental the debate Commission’s of a in the interpretation procedural provision concerns the bottom, employer’s statute. At governing Commission’s misinterpreted that the the statute complaint over claims. granting violated the contends that the Commission that, a rehearing, claim for by setting statute Ward’s therefore, “jurisdiction,” was without and “jurisdictional” that, the case is ex- consequently, requiring rule a final administrative decision as ception rejected and prerequisite review. We considered in on Human Rel. v. Mass argument a similar Comm’n Transit, 389, stating: Md. at 449 A.2d at supra, 294 present statutory
“The MTA in the case has couched ‘authority’ interpretation issue terms of charged that the Com- ‘jurisdiction,’ and has ‘power’ or pro- mission is attempting ‘expand’ Nevertheless, many, in an ceed unauthorized manner. most, interpretation issues in adminis- statutory arising agen- could terms of the proceedings phrased trative *7 or take a certain cy’s ‘authority,’ ‘power’ ‘jurisdiction’ to that an A specific party’s argument of action a case. type ultimately if it inter- exceeding will be agency the case to that contrary the and decides prets statute a position, does not excuse the failure to await final party’s agency decision.”
Thus, fall within present “jurisdictional” the case does not finality as requiring administrative exception principle the review. If the order set- condition final, it was then was ting rehearing Mr. Ward’s case have the circuit court to undertaken improper review of the order. 1989, 16, was Commission’s order November In
clearly not final administrative decision. Md. Comm’n Co., 56, Rel. E. at 459 supra, Human v. B.G. & Md. A.2d controlling principles at summarized the Court follows: like
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McAULIFFE, Judge, dissenting. opinion Compensation
I am of the that the Workers’ Com- when, jurisdiction” by its order “palpably mission was without 1989, attempted 16 November it to take action with respect had passed completely case had final and to a that become The to the Commission. Workers’ beyond powers granted the statute; it possess- Commission is a creature of Compensation it at by statute or rule. claim powers given the es the subject the matter clearly was issue Commission—indeed, juris- the Commission had exercised its it, claim, the denied and denied motion diction over Instead, days than appeal was taken. more rehearing. No claim, and had the some the disallowed after Commission the motion rehear- after the Commission had denied days Commission a letter attorney sent the ing, claimant’s claim pursuant resuscitate the that requesting § under what was then 40C power allegedly existing ato law. Compensation the Workers’ Ward, claimant, it taken would In the view years passed following or 30 had days matter whether claim; the could continue 'advance of the claimant ad infinitum, and proffer and new witnesses new theories the claim could sparked, of a were the interest commissioner legisla- like I do not believe that the resurrected Lazarus. 9-736(b) 101, 40C, § ture, § of Article now by the enactment Article, grant intended to and of the Labor follows, I In the discussion power. Commission such of the applicable refer to the current codification sections shall law. of the Workers’- decision on aggrieved by If a is claim, rehearing either move for a before party may § file a petition under 9-726 or for rehear action under 9-737. motion agency’s newly must discovered evidence grounds be based on ing 9—726(d)(3), law, § within fifteen error of must be filed 9-726(a).1 decision, petition days the Commission’s (in regulation, at case By 1. effect the time this COMAR 14.09.01.10 14.09.01.14D, arose), the motion for must now COMAR specific support of the motion. If motion contain information evidence, allegation newly it describe on an discovered must based delay in specifically and forth the for the the evidence set reasons discovering the evidence.
531 days of thirty must be filed within judicial generally for review If the Maryland Rule 7-203. the Commission’s decision. filing for a rehearing, the time timely motion for files a is denied until the motion judicial stayed for review is petition its or, if until the Commission issues granted, the motion is 9—726(f). new order. “that the designed for is to assure rehearing provision full consider opportunity give has a reasonable allegations question that timely
ation to substantive to the orders moves on controversy of its before a propriety Tornillo, 192, 197, A.2d 320 Md. judicial level.” Alitalia v. (1990). timely rehearing operates A motion for filed review, in for stay judicial the time for an action filing reducing further the number policy v. Cort explained review actions. As Court Stinnett (1989), Furniture, 554 A.2d 315 Md. for “need not concerned with rehearing moves party who of the motion. Success appeal disposition an until after motion, course, any appeal.” obviate the need for would Act, however, provi- no makes Workers’ motion for rehearing. motion Once the sion for a second for for for upon, filing petition ruled the time rehearing is an which begins review to run. time within “[T]he [on taken the decision the motion appeal may be from on ... on which starts the date rehearing] ” 9—726(f)(1). rehearing.... for a denies the motion a motion for contemplates statute that once denied, aggrieved party petition should desired. the Com- proceedings Consequently, further are option did to consider a mission this case not have rehearing. second motion for however, he did make a second argues, Ward rehearing.
motion for He contends that he invoked continuing authority to the Com- statutory provision granting modify mission he and that asked the Commission authority. continuing October order under such 9-736, providing Section orders, states:
Commission over *10 rate (a) Readjustment compensation.—If aggrava- of of or is tion, diminution, disability place or of takes termination compen- is set or after the rate of discovered terminated, Commission, of application on the sation motion, may: on in interest or its own any party (1) compensa- of application for future rate readjust tion; or
(2) payments. terminate the appropriate, jurisdiction; (b) Continuing powers and modification.— (1) continuing powers has The Commission each claim under this title. over (3) subsection, (2) of this the Com- Subject paragraph to finding the Commission modify any or as may mission justified. considers (c) section,
(3) of provided as subsection Except modify the modifi- may not an award unless last years compensa- after the applied cation is within payment. tion
(c) If that a Estoppel; fraud.—(1) party it is established of an award application an modification failed file- to an amounting or and circumstances of fraud facts because of an for modification award apply shall estoppel, year after: within fraud;
(1) or discovery the date (ii) amounting the facts and circumstances date when operate. ceased to estoppel to an file for modification accor- application Failure to (1) of this subsection bars modifica- with paragraph dance under this title. tion 9-736(b) not apply contends that does employer instead, but, entirely applies been denied which have
claims previously-found compensable of a “reopening to allow only claim____” 4). contention, In of this support Brief at (Reply (b)(3) expressly provides notes that subsection an award modification for a apply must that a claimant In compensation. payment of the last years five (b)(3) does that subsection argues Mr. Ward response, (b)(1) (b)(2). under be modified may orders which limit the separate must be read the subsections contends that He applies terms time limit five-year provisions. asserts, there awards; therefore, Mr. Ward to modification over continuing authority limit the Commission’s is no time than awards. of orders other modifications of the statute. interpretation Mr. Ward’s disagree I with § 9- authority under Although the Commission’s it extends 736(b) broad, I not believe that do may well be case. by this presented situation strongly suggests § 9-736 as a whole language *11 prior has been a where there applicable the section is (a) with the Commis- deals disability. Subsection award for diminution, or aggravation, an if there is authority sion’s (b) the Com- to grants Subsection disability. of termination after years five an “award” within authority modify to mission (c) to relates Subsection compensation. payment the last The entire of an award. for modification apply the failure to a to address the Commission to enable designed section other circumstances medical condition or changing claimant’s claimant, already determined a affecting prior a award. When in condi- extent, change a experiences some be disabled to to during the change compensation tion, may the Commission the power retains The Commission payments. of the period payments even after the change the award to made modification is ended, as for the long application have 9-736(b)(3). It § period. year five limitations within the however, unreasonable, to construe the Commission’s would be duration cases where longer to be of continuing than in not to be disabled has been determined the claimant disability has been a determination where there cases compensation. award of 9-736, §of there Moreover, construction under Mr. Ward’s §in 9- limitation fifteen-day for the be little reason would 726(a) motion rehearing. a to file a for Ward’s party largely nugatory. render 9-726 of the statute would view 9—736(b)(3) made, § gives award has been In cases where an five over the claim for continuing authority the Commission In all other payment compensation. after last years statute, cases, under Mr. Ward’s construction over the claim continuing authority have Commission would simply request A could forever. dissatisfied case, or not there had been whether reopen Assembly certainly The General timely rehearing. motion for potential for endless expose parties to this did not intend Furniture, at supra, v. Cort Md. Stinnett litigation. Cf. 1229-1230; Red 456-457, 554 A.2d at v. Clarke’s Ratcliffe (1985) (The Barn, 494 A.2d Md.App. not allow authority over claims does running to restart the time it a case reopen review). filing an action claim, denied the where where the has In cases kind, and where the any been an award of there has never 9-726, under denied a motion for Commission has §of authority by have virtue 9-736 does not rehearing. of motion for modify previous circumstances, attempt by particular these Under repre- it had none power clearly exercise when Commission to limited that should be an excess of its sents I judgment would reverse the subject appeal. to immediate and direct that the Commission’s Special Appeals the Court *12 of 16 November 1989 vacated. CHASANOW, J., C.J., join in this MURPHY, dissent.