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.
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),  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.
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.
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"),
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
four years later, Officer Gang filed a form entitled
"Request for Document Correction" 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,  and as such, was entitled to a greater
rate of compensation. 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.
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.
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.
County appealed the decision of the Circuit Court to the
Court of Special Appeals, and in a reported opinion,
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.
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)).
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:
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
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)).
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.
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)).
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,
(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,
(1)readjust for future application the rate of compensation;
(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
(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.
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 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."
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 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.
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)).
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 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.
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.
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
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 ...