Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gang v. Montgomery County

Court of Appeals of Maryland

June 24, 2019


          Argued: April 5, 2019

          Circuit Court for Montgomery County Case No.: 423509V

          Barbera, C.J., Greene, McDonald, Watts, Hotten, Getty, Battaglia, Lynne, A. (Senior Judge, Specially Assigned), JJ.


          BATTAGLIA, J.

         In this worker's compensation case, Officer Peter Gang, the Petitioner herein, was injured while working as a correctional officer for Montgomery County, the Respondent herein. We have been called upon to interpret Section 9-736 of the Labor and Employment Article, Maryland Code (1991, 2016 Repl. Vol), [1] and consider whether the Workers' Compensation Commission is statutorily authorized to modify an order that provided Officer Gang a compensation award for a permanent partial disability resulting from his workplace injury, by retroactively adjusting the rate of compensation as a result of his application within the five-year statutorily defined period of time. The Commission adjusted the rate of compensation because, as a public safety employee, Officer Gang had been entitled to a higher rate of compensation than that which he initially received, a fact that is not in dispute.

         On judicial review, the Circuit Court for Montgomery County affirmed the decision of the Commission, but the Court of Special Appeals reversed, holding that the Commission was not statutorily authorized to retroactively modify Officer Gang's rate of compensation. Montgomery Cty. v. Gang, 239 Md.App. 321, 196 A.3d 533 (2018). For the reasons that follow, we shall hold that the Commission may modify the compensation award within five years from the date of the last compensation payment under Section 9-736(b) of the Workers' Compensation Act.

         On September 17, 2011, Officer Peter Gang was injured while working as a Montgomery County correctional officer and, subsequently, filed a claim with the Workers' Compensation Commission ("Commission"), seeking compensation. The Commission held a hearing to determine the nature and extent of Officer Gang's injury under the Workers' Compensation Act ("the Act"), [2] and, thereafter, in May of 2012, issued an Award of Compensation, providing Officer Gang recompense "at the rate of $157.00, payable weekly, beginning October 21, 2011, for a period of 70 weeks" based on a 14% industrial loss of the use of his body, which was attributable to the accidental injury.

         Nearly four years later, Officer Gang filed a form entitled "Request for Document Correction"[3] with the Commission, seeking an adjustment of the 2012 award, alleging that the rate of his compensation was incorrectly calculated, because he qualified as a "public safety employee" under Section 9-628(a)(5) of the Labor and Employment Article, [4] and as such, was entitled to a greater rate of compensation.[5] He also posited, in his Request for Document Correction, that the Commission had the power to amend his previous award because it possessed "continuing jurisdiction" over the previous order. The Commission agreed, and issued an amended award retroactively changing Officer Gang's rate of compensation from $157.00 to $314.00 per week for seventy weeks beginning October 21, 2011.

         Montgomery County, however, filed a Request for a Rehearing on the matter with the Commission, stating: "The County did not agree to this document correction and was not asked for its agreement. Please rescind the revised order and reinstate the original order as there was no agreement to the document correction. Moreover, the original order was issued on May 2, 2012, almost four years ago." The Commission held a hearing on the matter, and after hearing arguments, affirmed the Order which increased the rate of compensation for Officer Gang's permanent partial disability award from $157.00 to $314.00 a week, beginning October 21, 2011, for a period of seventy weeks based on his status as a "public safety employee" at the time of his injury. At the hearing, the Commissioner stated that he believed the Commission had the jurisdiction to correct an error such as this, particularly if it was a mistake made by the Commission of which none of the parties was aware.

         Montgomery County filed a Petition for Judicial Review in the Circuit Court for Montgomery County. The Circuit Court held a hearing on the matter, and by order, affirmed the decision of the Commission, reasoning that the Act "provides the Commission with broad authority to make any changes that it believes are justified within five years from the latter of the date of the accident, the date of disablement or the last compensation payment, without the occurrence of" an aggravation, diminution or termination of disability.

         Montgomery County appealed the decision of the Circuit Court to the Court of Special Appeals, and in a reported opinion, [6] our intermediate appellate court reversed the decision of the Circuit Court, holding that the Commission erred in retroactively modifying Officer Gang's workers' compensation award. Montgomery Cty v. Gang, 239 Md.App. 321, 196 A.3d 533 (2018). The Court first noted that "although the revisory power of the Commission under § 9-736 is broad, it is not unlimited[, ]" id. at 329, 196 A.3d at 538 (quoting Sealy Furniture of Maryland v. Miller, 356 Md. 462, 468, 740 A.2d 594 (1999)), and concluded that the Act in fact limited the Commission's ability to reopen a claim and modify an award to situations in which the award was "based on a legal mistake in light of case law," id. at 330-32, 196 A.3d at 539 (citing Subsequent Injury Fund v. Baker, 40 Md.App. 339, 392 A.2d 94 (1978)), or based on a "statutory revision," Gang, 239 Md.App. at 331-32, 196 A.3d at 539 (citing Waters v. Pleasant Manor Nursing Home, 127 Md.App. 587, 736 A.2d 358 (1999), aff'd, 361 Md. 82, 760 A.2d 663 (2000)). It also concluded that the Commission may have the power to correct the rate of compensation prospectively but not retrospectively. Gang, 239 Md.App. at 332-33, 196 A.3d at 540.

         The Court also rejected Officer Gang's argument that the Commission was "merely 'correcting a clerical error'" because the 2012 order constituted a final award and "[n]o action was taken by [Officer Gang] to appeal or have the Commission reconsider its decision." Id. at 333, 196 A.3d at 540. Thus, "under the circumstances of this case," the Court posited, "four years after the final award, the Commission's authority was limited to readjustment of a future rate of compensation upon a worsening or diminution of condition." Id. Finally, the intermediate appellate court noted that the Commission's actions "impermissibly extended the five-year time limit [in which to file for a modification], and thus, exceeded its statutory authority." Id. at 333-34, 196 A.3d at 540- 41 (citing Seal v. Giant Food, Inc., 116 Md.App. 87, 96, 695 A.2d 597 (1997)).

         Officer Gang then filed a petition for certiorari, which we granted, Gang v. Montgomery County, 462 Md. 554, 201 A.3d 1227 (2019), to consider various questions, all of which we have rephrased and abbreviated into one[7]:

Does the Workers' Compensation Commission have the authority to reopen a claim and retroactively readjust a rate of compensation within five years from the date of the last compensation payment when it finds that, based on a mistake or error, the injured employee received a lower rate of compensation than that to which he was otherwise entitled?

For the reasons that follow, we shall hold that the Commission had the authority to reopen Officer Gang's award of permanent partial disability compensation and retroactively adjust his rate of compensation because his request for such, which was made within five years from the date of his last compensation, was based on a mistake or error.


         The Maryland Workers' Compensation Act was enacted by Chapter 800 of the Maryland Laws of 1914. The purpose of the Act is "'to protect workers and their families from hardships inflicted by work-related injuries by providing workers with compensation for loss of earning capacity resulting from accidental injury arising out of and in the course of employment.'" Roberts v. Montgomery Cty., 436 Md. 591, 603, 84 A.3d 87, 95 (2014) (quoting Johnson v. Mayor & City Council of Baltimore, 430 Md. 368, 377, 61 A.3d 33, 38 (2013) (internal citations omitted)). Employers also are the beneficiary of the Act because they no longer have to face the spectre of suits and inconsistent verdicts. Polomski v. Mayor & City Council of Baltimore, 344 Md. 70, 76-77, 684 A.3d 1338, 1341 (1996) ("[T]he Act also recognizes the need to protect employers from the unpredictable nature and expense of litigation" and relieves them "from the vagaries of tort liability." (citations omitted)).

         The Act is remedial in nature and "should be construed as liberally in favor of injured employees as its provisions will permit in order to effectuate its benevolent purposes. Any uncertainty in the law should be resolved in favor of the claimant." Stachowski v. Sysco Food Services of Baltimore, Inc., 402 Md. 506, 513, 937 A.2d 195, 199 (2007) (quoting Design Kitchen v. Lagos, 388 Md. 718, 724, 882 A.2d 817, 821 (2005) (internal citation omitted)); see also Roberts, 436 Md. at 603, 84 A.3d at 95; Montgomery Cty. v. Deibler, 423 Md. 54, 61, 31 A.3d 191, 195 (2011). Furthermore, in light of the Act's benevolent and remedial nature, the statutory scheme also evinces an intent to treat "public safety employees" differently by awarding them a higher rate of compensation where so provided. Section 9-628 of the Labor and Employment Article.

         The Act is intended "to give prompt relief to injured workmen, and it created the Commission to administer the law." Egeberg v. Maryland Steel Products Co., 190 Md. 374, 379, 58 A.2d 684, 685-86 (1948); see also Temporary Staffing, Inc. v. J.J. Haines & Co., Inc., 362 Md. 388, 398, 765 A.2d 602, 607 (2001). "Many sections of the law seem to demonstrate what is otherwise notorious," that the Commission "is the body to which decision upon claims is principally committed." Temporary Staffing, Inc., 362 Md. at 399- 400, 765 A.3d at 608 (quoting Hathcock v. Loftin, 179 Md. 676, 678, 22 A.2d 479, 480 (1941)). The General Assembly established the Commission "and provided it with the power to carry out the intent of the Act[, ]" such that its "jurisdiction includes the authority to approve claims, reopen cases, make determinations on employment relationships, determine liability of employers, award lump sum payments, approve settlements, award fees for legal services, funeral expenses, and medical services." Temporary Staffing, Inc., 362 Md. at 400, 765 A.3d at 608. Given the Commission's breadth of authority and discretion, we recognize its "expertise in the field of workers' compensation and consequently grant a degree of deference to the Commission's interpretation" of the statutes which it administers. Pro-Football, Inc. v. McCants, 428 Md. 270, 283, 51 A.3d 586, 593 (2012) (citing Motor Vehicle Admin. v. Carpenter, 424 Md. 401, 413, 36 A.3d 439, 446 (2012)).

         The particular statutory provisions of the Act upon which the instant dispute centers are contained in Section 9-736 of the Labor and Employment Article, which in pertinent part, provides:

(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)Except as provided in subsection (c) of this section, the 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.

Section 9-736(b), however, is the gravamen of the dispute between the parties and it is to our jurisprudence regarding the breadth of this provision that we now turn.

         In Electrical General Corp. v. Labonte, 454 Md. 113, 164 A.3d 157 (2017), we recently noted that, under Section 9-736(b), "the Commission is not bound to follow its previous awards and orders; to the contrary, the Commission has the express authority to modify the same." Id. at 143, 164 A.3d at 175. In that case, Section 9-736(b) "unequivocally" supported our holding that, "where the Commission has determined an employee's permanent partial disability and apportioned between an accidental personal injury[8] and a subsequent intervening injury, if the employee's condition worsens, the Commission is not precluded from awarding workers' compensation due to the accidental personal injury." Id.

         LaBonte, who incurred a back injury while working as an electrician, filed a claim with the Commission seeking temporary total disability benefits and temporary partial disability benefits, both of which the Commission subsequently awarded. He was subsequently injured outside of his workplace in an unrelated matter, but nonetheless, filed a claim with the Commission seeking additional temporary total disability benefits, which the Commission, by order, denied. Following that denial, LaBonte filed Issues[9] with the Commission seeking permanent partial disability benefits, which the Commission awarded, finding that his disability was partly due to his work-related injury and partially due to "pre-existing and subsequent conditions[.]" Id. at 119-20, 164 A.3d at 161.

         Within years, LaBonte filed a Petition to Reopen, alleging that his back condition had worsened and seeking additional permanent partial disability benefits. The Commission granted the petition but denied his request for more benefits, finding that there "had not been a worsening of LaBonte's back condition that was causally related to his" work-related injury "because the Commission's previous Order and Award of Compensation had established a 'subsequent intervening event' that broke the 'causal nexus'" between the work-place injury and his pre-existing condition. Id. at 120, 164 A.3d at 161-62. A jury in the Circuit Court, after LaBonte filed a petition for judicial review, found that his worsening back condition was a result of his work-related injury. The Court of Special Appeals affirmed, as did we. As a part of our analysis, we explained that nothing in the Commission's prior orders precluded the Commission from "determining at a later date how much, if any, a worsening of LaBonte's back condition was due to his accidental personal injury." Id. at 143, 164 A.3d at 175. We emphasized that Section 9-736(b)(2) provided the Commission with the wide discretion "to modify its previous finding of the proportion of LaBonte's back condition that was due to his accidental personal injury." Id. Labonte was not the first of our cases in which we recognized the wide breadth of the Commission's authority to modify its previous findings or orders. In Potomac Abatement, Inc. v. Sanchez, 424 Md. 701, 37 A.3d 972 (2012), we were asked whether the Commission retained jurisdiction over an employee's claim, under Section 9-736(b), to consider the employee's additional requests for relief while a previous order involving the same claim was on judicial review. We held that the Commission retained continuing jurisdiction to consider the claimant's new requests for temporary total disability benefits and vocational rehabilitation services even though a prior order of the Commission with regards to the claimant's permanent partial disability award was pending on judicial review. We reasoned that "[w]hether the Commission can hear new benefits requests pending appeal, and if so, when, affects claimants' ability to receive proper, prompt treatment and compensation during the often long and complex healing process." Id. at 710, 37 A.3d at 977. In the context of that case, we concluded that Sanchez, the injured employee/claimant, "should be entitled to a hearing on his new issues under Section 9-736(b), so long as no 'evidence was offered' or 'decision made' on those issues at the previously appealed hearings." Id. at 725, 37 A.3d at 986 (citing Pressman v. State Accident Fund, 246 Md. 406, 415-16, 228 A.2d 443, 449 (1967)).[10]

         As far back as 1936, we, in Stevenson v. Hill, 170 Md. 676, 185 A. 551 (1936), considered the breadth of the Commission's ability to modify its previous orders. In Stevenson, the wife of a deceased employee filed a claim seeking survivor benefits under the Workmen's Compensation Code as a result of her husband's accidental work-related death. The State Industrial Accident Commission[11] awarded her compensation, but she later requested a rehearing in the case, contending that the rate of compensation set forth in her award should have been greater: "I think the award is too small, as I am satisfied the earnings of my husband were greater than those given consideration in my claim. . . . I can show your Commission that the award should be increased[.]" Id. at 678, 185 A. at 552. The employer sought to dismiss the wife's claim, contending the Commission correctly calculated the employee's average weekly wage and that the wife was precluded from seeking modification, since she "took no appeal to the Circuit Court . . . within the period of thirty days as provided by law[.]" Id. at 678-79, 185 A. at 552. The Commission denied the employer's motion to dismiss, received evidence on the matter and ultimately concluded that the employee's average weekly wage was as the wife represented, but nonetheless, found that the wage was insufficient to support an increase in the rate of compensation.

         Both the employer and the wife-claimant sought judicial review in the Circuit Court. The employer filed a motion to dismiss, which the Circuit Court granted on the basis that the Commission was not authorized to reopen a case in which it had already issued a final order. When we were asked to review the decision, the wife argued that the Commission was authorized to re-open the claim based on an error in the calculation of her husband's average weekly rate, while the employer argued that the Commission was not authorized to re-open the claim because Section 43, the predecessor to Section 9-736(a), limited Section 54, the predecessor to Section 9-736(b). We agreed with the wife.

         In holding that the Commission possessed the authority to reopen its previous order, we distinguished the Commission's power under Section 54 and Section 43 of Article 101, stating that:

If the power to reopen cases was intended to be confined to those in which the disability had become aggravated, diminished, or terminated, the limitation of time as to the exercise of the power could readily have been included in section 43, and the enactment of section 54 would have been superfluous. In our opinion section 54 was intended to have a broader effect than section 43 in the scope of the authority granted to the commission to reopen cases under circumstances justifying such actions. Therefore, we are unable to ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.