No Appeal Of Workers Compensation Commission Decision To Reserve On An Issue?

Issue: Can you appeal a Workers Compensation Commission decision to reserve on an issue?
At that hearing on April 2, 2013 despite the issue of the holiday and the material prejudice having been raised, the Maryland Workers Compensation Commission on 4-26-13 ordered the workers’ compensation carrier to pay the medical bills up front and ordered that the employee reimburse the workers’ compensation carrier within a period of thirty days. See attached Exhibit #4. Instead of resolving the issue of the amount of the holiday as requested by Hewitt Packard Company and Old Republic Insurance Company, the Maryland Workers’ Compensation Commission reserved on that issue thereby effectively refusing to address that issue.
By reserving on the issue and not deciding it, employer/insurer had no right to appeal that part of his decision since it is interlocutory in nature and not a final judgment entitling employer/insurer to immediate judicial review. Commissioner order did not determine or conclude the rights of the parties before the Commission, and it did not deny the parties the means to further prosecute their positions and interests before that agency. He made some suggestions to the parties on how to proceed and reserved on the issues until those avenues were pursued.
An order which is interlocutory in nature may not be appealed. Thus a Workers Compensation commission order permitting an employee to amend their claim is not subject to an appeal. Big Vein Coal Co of Lonaconing v. Leasure, 192 Md 435, 64A2nd 563 (1949) Similarly, a party may not appeal a commission decision to schedule for hearing a request for modification since it does not represent a final decision on the merits of the case. Montgomery County, Maryland v. Ward 331 Md 521, 629A2nd 619 (1993
In Montgomery County, Maryland v. Ward 331 Md 521, 629A2nd 619 (1993)The Commission’s order of November 16, 1989, was clearly not a final administrative decision. In Md. Comm’n on Human Rel. v. B.G. & E. Co., supra, 296 Md. at 56, 459 A.2d at 211, this Court summarized the controlling principles as follows:”[O]rdinarily the action of an administrative agency, like the order of a court, is final if it determines or concludes the rights of the parties, or if it denies the parties means of further prosecuting or defending their rights and interests in the subject matter in proceedings before the agency, thus leaving nothing further for the agency to do.”Applying these principles, we held in the B.G. & E. case that an administrative agency’s order,remanding a case to a hearing officer for further agency proceedings, “was not a final decision entitling B G & E to immediate judicial review.” 296 Md. at 58, 459 A.2d at 212. See also Paolino v. McCormick & Co., supra, 314 Md. at 582, 552 A.2d at 871-872.The Commission’s order setting the case for rehearing did not determine or conclude the rights of the parties before the Commission, and it did not deny the parties the means to further prosecute their positions and interests before that agency. Most importantly, it did not terminate the proceedings before the Commission. The order puts the parties’ contentions back before the agency. As the Commission’s order was not final, the judgments of the courts below must be vacated and the case remanded to the circuit court with instructions to dismiss the action. Consequently, we do not reach the issue concerning the propriety of the Commission’s reopening Mr. Ward’s claim.
Generally, any decision of the Commission which grants or denies some benefit under the Workmen’s Compensation Law may be appealed. Great American Insurance Co. v. Havenner 33 Md app 326, 364 A2nd 95 (1976)In Lawton Ewing v.Koppers Company, Inc 69 Md App 722, 519 A2nd 790 (1987)-Judge Powers said for this Court in Flying “A” Serv. Stat. v. Jordan, 17 Md. App. 477, 302 A.2d 650 (1973):`A decision of the Commission which an aggrieved party is entitled to have reviewed by a court must be an operative order which has the effect of granting or denying some benefit under the Workmen’s Compensation Law. Most often, such a decision is reached by giving effect to multiple findings, but it is the ultimate decision or order, not each individual finding, which is the basis for judicial review. Obviously, in a review of the correctness of a decision or order, each finding that contributed to the final result is examined, and one incorrect finding may make the result incorrect. But the appeal is from the result, rather than from each of its separate elements.
In Potomac Abatement Inc v. Sanchez 424 Md 701, 37A.3rd 972,(2012) , the Court of appeals refers to the case of Pressman v. State Accident Fund, 246 Md. 406, 228 A.2d 443. (1967)The Pressman case is instructive here only because at the initial hearing in Pressman the Commission reserved on the issue of who was the proper insurer and only issued an order on who was the proper employer. The claimant filed an appeal to the decision of who was the proper employer and while that issue was pending on appeal in the circuit court the claimant requested and received a hearing at the Workers Compensation Commission on the issue of who was the proper insurer which issue was reserved in the original order appealed from.
“In Pressman, the claimant appealed from the Commission’s ruling and, while the appeal was pending, filed another set of issues with the Commission. Id. at 409-10, 228 A.2d at 445. The issue pending on appeal was whether a certain party had been the claimant’s employer, while the issue at the new hearing was whether the defendant was the insurer. Id. at 409-10, 228 A.2d at 445. At the new hearing, the Commission resolved the insurance issue and the defendant appealed, arguing that “the taking of an appeal [from the prior ruling] automatically deprived the Commission of jurisdiction to act in the matter while the appeal was pending.” Id. at 414, 228 A.2d at 448. We disagreed, holding that the Commission retained “jurisdiction and power . . . to deal with aspects of a case that were not dealt with or embraced within a decision on the other aspects which had been appealed.” Id. at 415-16, 228 A.2d at 449.We held that the Commission had continuing jurisdiction under the predecessor to Section 9-736, which provided that “the powers and jurisdiction of the Commission over each case shall be continuing, and it may, from time to time, make such modifications or changes with respect to former findings or orders with respect thereto as in its opinion may be justified.” Id. at 415, 228 A.2d at 449 (quoting Md.Code (1957), Art. 101, § 40(c)). In 1991, that provision became Section 9-736(b), “derived without substantive change from former Art. 101, § 40(b) through (d).” See Chapter 8 of the Acts of 1991. Section 9-736(b) uses the same language as Section 40(c), providing that the “Commission has continuing powers and jurisdiction over each claim under this title” and that “the Commission may modify any finding or order as the Commission considers justified.” § 9-736(b).Because there is no substantive difference between the statute considered in Pressman and Section 9-736(b), the Pressman holding is instructive here. See Jung v. Southland Corp., 351 Md. 165, 175 n. 12, 717 A.2d 387, 392 n. 12 (1998) (“Maryland Code (1957, 1985 Repl.Vol.), Article 101, § 40 was recodified in 1991 as Labor & Employment Article, § 9-736. The Revisor’s Note indicates that it is `new language derived without substantive change from former Art. 101, § 40(b) through (d).’ Thus, interpretations of former § 40(c) are equally applicable to § 9-736(b).”).Petitioners want to distance us from Pressman, arguing that, there, the issue was whether the Commission retained jurisdiction. . . to consider Issues raised at the time of the original hearing and reserved upon for later consideration. . . . [T]he Commission was essentially revising its prior Order . . . as opposed to issuing a new decision on new Issues. There is nothing in Pressman suggesting that the Commission should have unbridled authority pursuant to [Section 9-736 to hear] new Issues and enter new Orders while a prior Order is pending on appeal.We do not construe Pressman so narrowly. To be sure, we observed in Pressman that the Commission had reserved the issue raised at the new hearing (insurance) in its first order. See Pressman, 246 Md. at 409, 228 A.2d at 445. Yet we do not read Pressman as limiting its holding to issues reserved in previous orders. It appears that Pressman mentioned the Commission’s reservation of the insurance issue simply to respond to the insurer’s argument that “the Commission had decided that [the employer] was uninsured by its [first order] and, having done this, cannot reverse itself[.]” See Pressman, 246 Md. at 414-15, 228 A.2d at 448-49. Responding to this argument, we observed: We think it plain that the Commission did not decide that [the employer] was uninsured. . . . This is made manifest by the fact that no evidence on the point was offered or considered at the [first] hearing, by the hearing Commissioner’s statement that the issue of insurance would be specially set after notice to the Fund . . . and by the fact that the issues listed in the [first order] did not include the insurance issue.Id. Thus, it appears that we discussed the Commission’s reservation of the insurance issue simply to show that the Commission was not attempting to “reverse itself.” Whether the Commission retained jurisdiction, we said, turned on whether it had taken evidence or made a decision on the new issues at the earlier hearing: Inasmuch as no evidence was offered on the point of insurance before the [first order] and no decision made on the issue, the Commission had jurisdiction and power to adjudicate the status of [the employer] as insured or uninsured” Potomac Abatement Inc v. Sanchez 424 Md 701, 37A.3rd 972,(2012)
In Trojan Boat Co, Inc v. Bolton 11 Md App 665, 276 A2nd 413 (1971)
The Workers Compensation Commission denied the claim based upon the finding that the claimant did not sustain an accidental injury arising out of and in the course of his employment. The employee filed an appeal and the decision was reversed on appeal. Back on remand from the Circuit Court, the claimant argued that the employer could not contest causal relationship as that issue should have been raised at the Circuit Court level. The Court of Special appeals believed differently. “The rule is generally stated as in Pressman v. State Accident Fund, 246 Md. 406, 228 A.2d 443, 449:
670*670 “The reviewing court considers and passes only on matters covered by the issues raised and decided below or on relevant matters as to which there was evidence before the Commission. Richardson v. Home Mutual, 235 Md. 252, 255, 201 A.2d 340, and cases cited.”
In Pressman, the Court found that in a prior order, the Commission received no evidence and made no decision as to whether the appellee was the insurer of the injured workman. Therefore, the Court held the Commission retained jurisdiction to decide this point even though an appeal had been filed from its decision on the substantive question as to the liability of the employer.
The difficulty with issues rendered moot by the Commission’s disposition of earlier issues comes not in the procedure for disposing of them on remand but rather in differentiating them from the Commission’s implicit decisions. The distinction between moot issues and implicitly decided issues, while abstract and largely undeveloped by the cases, is crucial since a moot decision is not able to be raised on appeal. Briefly stated, an implicit decision by the Commission is one that, in the logical process of disposing of the proceeding, the Commission encountered and solved, although without explicit mention of it in the record. By their very nature, they are elusive.
An implicit decision may be made by the Commission on the central issue of whether an injury is compensable. Butler Brothers v. Mabin, 171 Md. 126, 187 A. 872 and Jackson v. Bethlehem-Sparrows Point Shipyard, 189 Md. 583, 56 A.2d 702. In both cases, a single accident resulted in two injuries. Both injuries were presented in a single claim and both were supported by some evidence. The Commission allowed recovery on one injury but said nothing as to the other. The issues of both injuries were present, although not as formal issues specifically directed to their facts, but as issues with evidence giving the Commission the opportunity to pass upon them. Since the issue was not logically moot, the Commission’s refusal to allow recovery by remaining silent on the second injury amounted to an implicit decision in these cases to deny recovery. See also Albert F. Goetze, Inc. v. Pistorio, 201 Md. 152, 92 A.2d 762.
An implicit decision by the Commission may also be made on a sub-issue contained within the greater issue of whether to allow recovery. Thus, in Cabell Concrete Block Co. v. Yarborough, 192 Md. 360, 64 A.2d 292, the Commission allowed full recovery for paralysis resulting from cerebral hemorrhage without any mention of proportioning between the accident involved and the pre-existing disease of high blood pressure, although there was some evidence presented by the employer that the paralysis resulted at least partially from the claimant’s previously 672*672 existing high blood pressure. On appeal to the Circuit Court, the trial judge refused an instruction on proportioning of awards when pre-existing diseases were involved. The Court of Appeals held this denial was error, since the Commission, faced with some evidence showing a pre-existing disease, must have implicitly decided that no apportionment was necessary in order to reach the conclusion that it did in fact reach, i.e., no apportionment. Since the Commission made an implicit decision on this sub-issue, that issue was raisable on appeal.
While the presence of evidence before the Commission may well be a signpost indicating a certain specific issue was implicitly decided and while appellee’s testimony alone without medical testimony could possibly support a decision by the Commission, appellee’s argument fails since as soon as the Commission decided the injury was not accidental and in the course of employment, the issues of causation and nature of the injury became moot. The issue was obviously not implicitly decided by the Commission because in the logical process of disposing of the claim by deciding it was not accidental in the course of employment, the Commission did not reach the issue of causation.
In our case, at a hearing on April 2, 2013 with no testimony taken and no transcript prepared, despite the issue of the holiday and the material prejudice having been raised, the Maryland Workers Compensation Commission ordered the workers’ compensation carrier to pay the medical bills up front and ordered that the employee reimburse the workers’ compensation carrier within a period of thirty days. Instead of resolving the issue of the amount of the holiday as requested by Insurance Company, the Maryland Workers’ Compensation Commission reserved on that issue thereby effectively refusing to address that issue. At that hearing Commissioner orally indicated that those issues had to be resolved by the Circuit Court. A timely appeal was filed by the employer/insurer thru counsel, and after a motion for summary judgment was filed, the Circuit Court ordered that the motion for summary judgment was granted finding that Commissioner did not have the statutory authority to order the employer and insurer to pay causally related medical bills during the holiday period and reversed the commission. The appeal did not address the issue of prejudice and additional holiday raised in our motion because the commissioner did not make a finding on the issue and reserved on it. It was not necessary for Commissioner to rule on the prejudice issue or to add to the credit as there was already a credit agreed to by both parties from the original distribution of the third party claim.
The original order from Commissioner reserved on the issue of additional credit due for the loss of consortium and the prejudice issue. Exhibit#4.Under the tests outlined in Montgomery County, Maryland v. Ward 331 Md 521, 629A2nd 619 , Flying “A” Serv. Stat. v. Jordan, 17 Md. App. 477, 302 A.2d 650 , Pressman v. State Accident Fund, 246 Md. 406, 228 A.2d 443, Potomac Abatement Inc v. Sanchez 424 Md 701, 37A.3rd 972,, Trojan Boat Co, Inc v. Bolton 11 Md App 665, 276 A2nd 413, this part of the order was not an appealable issue and therefore would not bar this proceeding.
Test #1-Montgomery County, Maryland v. Ward 331 Md 521, 629A2nd 619- There is no appeal from an order interlocutory in nature and not a final judgment order or where the order did not determine or conclude the rights of the parties before the Commission, and it did not deny the parties the means to further prosecute their positions and interests before that agency. Because Commissioner reserved on the issues of the loss of consortium credit and prejudice, the parties were free to argue that issue at the next hearing.
Test #2-Flying “A” Serv. Stat. v. Jordan, 17 Md. App. 477, 302 A.2d 650- any decision of the Commission which grants or denies some benefit under the Workmen’s Compensation Law may be appealed. Because Commissioner reserved on the issues of the loss of consortium credit and prejudice, neither party was granted or denied a benefit. Commissioner was aware that there was at least a $61,196.57 credit available and knew there was time for the parties to litigate the issue at the Circuit Court level as part of a declaratory judgment or come back to the commission when the $61,196.57 credit was used up.
Test #3-Pressman v. State Accident Fund, 246 Md. 406, 228 A.2d 443.- Whether the Commission retained jurisdiction, we said, turned on whether it had taken evidence or made a decision on the new issues at the earlier hearing: Inasmuch as no evidence was offered on the point of insurance before the [first order] and no decision made on the issue, the Commission had jurisdiction and power to adjudicate the status of [the employer] as insured or uninsured” Potomac Abatement Inc v. Sanchez 424 Md 701, 37A.3rd 972,(2012). In or case Commissioner took no testimony on the issues of the loss of consortium credit and prejudice and made no ruling on the issue, buy simply reserved on these issues.
Test #4-In Trojan Boat Co, Inc v. Bolton 11 Md App 665, 276 A2nd 413 (1971) raises the issue regarding whether Commissioner implicitly decided the issues of the loss of consortium credit and prejudice or whether they were moot at the time of his decision.The distinction between moot issues and implicitly decided issues, while abstract and largely undeveloped by the cases, is crucial since a moot decision is not able to be raised on appeal. Briefly stated, an implicit decision by the Commission is one that, in the logical process of disposing of the proceeding, the Commission encountered and solved, although without explicit mention of it in the record. The issue was obviously not implicitly decided by the Commission because in the logical process of disposing of the claim by reserving on the issue due to the fact that there was already a sufficient credit in the short run, the Commission did not reach the issues of the loss of consortium credit and prejudice. While the issue could have been decided then, it did not need to be decided then, therefore it was moot.



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