Appeal from the Circuit Court for Baltimore City. Charles Peters, JUDGE.
ARGUED BY James A. Lanier (Patrick J. Erwing, Law Offices of Peter T. Nicholl on the brief) all of Baltimore, MD FOR APPELLANT.
ARGUED BY Stan M. Haynes and Mary M. Wiethorn (Lindsey M. Cook, Semmes, Bowen & Semmes on the brief) all of Baltimore, MD FOP APPELLEE.
PANEL Graeff, Berger, Friedman, JJ. [*]
[221 Md.App. 585]
This appeal involves the right to attorney's fees in a worker's compensation case that the parties have described as having a " torrid history." Specifically, the case involves the right to attorney's fees when: (1) an initial award for temporary total disability is rescinded; and (2) a subsequent award for permanent partial disability results in no compensation to the claimant because the award is offset by a credit for payment of the invalidated initial award.
This appeal is brought by Aleathea Brunson, appellant, who injured her back during her employment with the University of Maryland Medical System Corporation (" UMMSC" ), one of the appellees. She appeals the order of the Circuit Court for Baltimore City, which affirmed the decision of the Maryland Workers' Compensation Commission (the " Commission" ), also an appellee, denying her request for attorney's fees.
On appeal, Ms. Brunson raises three questions for our review, which we have rephrased as follows:
1. Did the Commission err in declining to enforce an award of attorney's fees when the decisions granting the award subsequently were rescinded and annulled?
2. Did the Commission err in declining to award penalties and fees for failure to pay the attorney's fees upon conclusion of the appeal to circuit court?
[221 Md.App. 586] 3. Did the Commission err when it failed to award counsel fees, reimbursement for incurred expenses, and reimbursement for a doctor fee pursuant to the award of compensation for permanent partial disability?
For the reasons that follow, we shall affirm the judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
On September 9, 2010, Ms. Brunson sustained a " lifting injury" to her back while working as a patient care technician for UMMSC. Ms. Brunson filed a claim with the Commission, and on April 8, 2011, the Commission held a hearing on the issues of temporary total disability, authorization for medication treatment, and payment of medical expenses. The Commission found that, as a result of Ms. Brunson's accidental injury, she was temporarily totally disabled from December 30, 2010, to the time of the hearing and continuing. It authorized physical therapy that had been performed, as well as a new course of physical therapy, as recommended by Ms. Brunson's doctor. It also authorized an EMG and an MRI to Ms. Brunson's back, and it authorized payment of outstanding medical bills.
On May 3, 2011, the Commission ordered that UMMSC, a self-insured employer, pay Ms. Brunson temporary total disability at the rate of $432 per week, " beginning December 30, 2010 to present and continuing, so long as [she] remained temporarily totally disabled as a result of [the] claim." It further ordered that, " from the compensation herein awarded, James A. Lanier, attorney for claimant, is allowed a lump sum counsel fee in the amount of $756.00." Pursuant to the order, temporary total disability benefits were paid through July 13, 2011.
On November 9, 2011, the Commission held another hearing on Ms. Brunson's claim regarding temporary total disability, authorization for medical treatment, payment of outstanding medical expenses, and attorney's fees and penalties. On November 28, 2011, the Commission ordered, inter alia, that [221 Md.App. 587] UMMSC pay additional compensation for temporary total disability at the rate of $432 per week, from " July 14, 2011 to present and continuing, so long as [she] remained temporarily totally disabled as a result of [the] claim." It further ordered that, " from the compensation herein awarded, James A. Lanier, attorney for claimant, is allowed a lump sum counsel fee in the amount of $842.40."
Pending appeal of the Commission's orders, UMMSC paid Ms. Brunson weekly temporary total disability benefits at the rate of $432 per week, for a total of $30,554.74, for the period of December 30, 2010, through June 2, 2012. The payment of the attorney's fees awards was stayed during the pendency of the appeals, and the total awarded amount of $1,598.40 was held in escrow pending a final determination.
On December 12 and 13, 2012, the appeals brought by UMMSC were tried together before a jury in the Circuit Court for Baltimore County. The jury partially reversed the Commission's May 3, 2011, and November 28, 2011, decisions. It found that Ms. Brunson " was not temporarily and totally disabled from December 20, 2010 forward," and Ms. Brunson's " EMG, MRI of the back and pain management were not reasonable, necessary and causally related to the accidental injury of September 9, 2010." The jury affirmed the Commission's decision of May 3, 2011, that physical therapy was " reasonable, necessary and causally related to the accidental injury." On December 14, 2012, based on the jury's verdict, the Circuit Court for Baltimore County ordered that the Commission's decisions of May 3, 2011, and November 28, 2011, " be rescinded and annulled," and that the case be remanded to the Commission " for the entry of new Orders consistent with the jury's verdict."
On March 5, 2013, in accordance with the circuit court's order, the Commission ordered that the May 3, 2011, and November 28, 2011, Commission orders " are
hereby RESCINDED and ANNULLED." It ordered that the matter would be reset for hearing only upon request.
[221 Md.App. 588] On May 15, 2013, the Commission held another hearing to address Ms. Brunson's claim of permanent partial disability as a result of the accidental injury, as well as attorney's fees. Counsel for UMMSC asserted that it was seeking a $30,554.74 credit against any future benefits awarded, based on the temporary total disability benefits that had been paid pursuant to an award that subsequently was rescinded and annulled.
With respect to attorney's fees, counsel for Ms. Brunson argued that he was entitled to the $1,598.40 attorney's fees awarded in the prior two awards, asserting that the " lien of the attorney's fees still survives," even though the prior orders were rescinded. He argued that, once attorney's fees are " determined by the Commission, it is a lien. That lien is not exhausted at all, ever, until paid to the attorney. The lien attaches when awarded and it is not abated by appeal." He also asserted that, because UMMSC had not paid him the attorney's fees it owed him, the Commission could, in its discretion, award " fees and penalties on the nonpayment of the attorney fees." Counsel further argued that, if the court found permanent partial disability and awarded attorney's fees, that would be a lien that would attach " before any credit that would be paid or taken by the employer." Mr. Lanier did not argue that the Commission should award doctor's fees and expenses.
On May 21, 2013, the Commission issued the following order:
1. TEMPORARY TOTAL DISABILITY: The employer and insurer are entitled to a credit for overpayment [221 Md.App. 589] of temporary total disability in the amount of $30,554.74. . . .
2. PERMANENT PARTIAL DISABILITY: Under " Other Cases" amounting to 15% industrial loss of use of the body, 10% is reasonably attributable to the accidental injury to the back and 5% is due to pre-existing conditions to the back; at the rate of $142.00, payable weekly, beginning at the end of compensation previously paid, for a period of 50 weeks, subject to a credit for overpayment of temporary total disability in the amount of $30,554.74 (permanency total is $7,100.00, leaving a credit balance of $23,454.74).
3. ATTORNEY FEES: The Orders of this Commission dated May 3, 2011 and November 28, 2011 were rescinded and annulled per the Order dated March 5, 2013; therefore, the payment of attorney fees previously awarded totaling $1,598.00 is denied.
The Commission did not award any penalties, and it stated that " [n]o attorney fees or reimbursement of expenses are allowed under this Order."
On June 3, 2013, Ms. Brunson, by counsel, petitioned for judicial review in the Circuit Court for Baltimore City. On December 10, 2013, the court held a hearing. Counsel for Ms. Brunson asked the court to remand the case to the Commission to enforce the payment of the previously awarded $1,598.40 in attorney's fees and to determine whether attorney's ...