Yingling v. Millenium Chemicals

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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 75 September Term, 2007 LARRY YINGLING v. MILLENNIUM INORG ANIC CHEMICALS, ET AL. Eyler, De borah S ., Wright, Sharer, J. Frederick (Ret'd, Specially Assigned), JJ. Opinion by Eyler, Deborah S., J. Filed: May 29, 2008 Larry Yingling, the appellant, challenges a judgment by the Circuit Court for Baltimore County denying, as time-barred, his request to re-open his temporary total disability benefits claim against M illennium Inorganic Chemic als ( Millen nium ), his employer, an d Pacific E mployers Insu rance Co mpany, its insurer, the appellees. He poses two questions for review, which we have rephrased:1 I. Did the circuit court err by ruling that Y ingling s req uest to re-op en his claim for temporary total disability benefits was time-barred by the five-year limitations provision in M d. Cod e (1957 , 1999 R epl. Vo l., 2007 Cum. Supp.) section 9-736(b)(3) of the Labor and Employment Article ( LE )? II. If not, was the Workers Compensation Commission bound by that limitations provision when it was asked to modify a 2000 Award of Compensation by the Commission? For the fo llowing rea sons, we s hall affirm th e judgme nt of the circu it court. FACTS AND PROCEEDINGS Yingling has been employed by Millennium since 1972. On April 1, 1995, he sustained an accidental injury in the course of his employment. As a consequence, he lost time from w ork in 1 995, 19 96, 199 7, and 1998. On February 11, 1998, the Workers 1 The questions as phrased by Yingling are as follows: 1. Was the employer s involuntary payment of wages to an employee while attending a medical examination required by the insurer a compensation payment under LE § 9-667 sufficient to toll the five year limitations rule? 2. Alternatively, was the Commission even bound by the five year limitations rule when asked to modify the 2000 award of compensation? Compensation Commission ( Commission ) awarded him temporary total disability ( TTD ) benefits for his lost time from work. The last TTD benefits were paid on April 13, 1998. In 1999, Yingling filed issues with the Commission seeking authorization for neck surgery for treatme nt of his inju ry. The issues were heard and on February 17, 2000, the Commission issued an Award of Compensation authorizing treatment as recommended by Dr. Kenneth Murray and payment of TTD benefits to commence on the date of the surgery. Despite the Commission s award, Yingling did not follo w throug h with Dr. Murray s treatment plan or un derg o neck su rgery.2 At some point in October of 2003, more than three and one-half years after the award was issued, Yingling asked Millennium to authorize surgery for his neck and back. Millennium opted to have Yingling undergo an independent medical examination ( IME ). By letter of January 19, 2004, Yingling was notified that the IME had been scheduled for February 26, 2004, at noon, at the office of neurosurgeon Richard Cohen, M.D ., at Greater Baltimore Medical Center ( G BMC ). Yingling already was s cheduled to work a twelve hour shift o n Februa ry 26. His sup ervisor told h im that he would be taken off the schedule for that day. Yingling protested that he did not want to be taken off the schedule. Rather, he would come to work that day and attend the IME, and he expected to 2 There was evidence that Dr. Murray referred Yingling to another doctor, who became his primary treating physician, and that that doctor did not agree that surgery was needed right away. Only after numerous tests, and a substantial period of time, did that doctor later come to the opinion that surgery was needed. 2 be paid his regular wage for the full day, including th e time the ex amination would e ntail. His supervisor advised Yingling that he would not be paid for the time spent attending the IME. Yingling complain ed to his union representative, who intervened and had discussions with representatives of Millennium. As a result, Millennium and Yingling entered into an agreeme nt, as memorialized in a February 9, 2004 memorandum from Rodney Hagins, Yingling s supervisor, to Yingling. The memorandum states: Larr y, you have requested time off to go for your Independent Medical Evaluation (IME), on February 26, 2004 at 12:00 PM. I have made arrangem ents on the labor schedule to cover your JOB while you are off site. You will be expected to report to work at your normal starting time at 8:00 AM, you can leave for your appointment at 10:30 am. After you have finished with your Evalua tion you will be expected to report bac k to work . You w ill be allowed 1 ½ hours for travel time. You will need a signed document from G.B.M.C. or the Doctor stating the time they were finished with you. In fact, Yingling attended the IME on February 26 , 2004, and was paid his full regular wage for that d ay. Based on the IM E and inf ormation in the records of Ying ling s treating neurosurgeon, Millen nium d enied th e reque st for ne ck and back su rgery. On Septemb er 29, 2004 , six and on e-half years after the las t (April 13, 1998) payment of TTD benefits, Yingling filed issues with the Commission seeking authorization for the surgeries and for TTD benefits. On October 22, 2004, Millennium filed issues challenging the surgeries as not medically necessary for treatment of the injuries and opposing the TTD 3 benefits request on the ground that it was barred by the five-year limitations provision in LE section 9-736 (b)(3). The Commission held a hearing on the issues on February 9, 2005. On March 15, 2005, it entered an order denying the authorization request for the surgeries and ruling that the TTD benefits request was time-barred. Yingling filed an action for judicial review in the Circuit Court for Balt imore County. By then, he had undergone both surgeries. The case was tried to the court in an evidentiary hearing, in which te stimony and o ther eviden ce that was no t presented to the Commission was introdu ced. The court reversed th e Commission s decision denying authorization for the neck surgery, affirmed its decision denying authorization for the back surgery, and further affirmed its decision denying TTD benefits on the basis of limitations. Yingling noted a timely appeal of the circuit court s decision denying him TTD benefits. DISCUSSION I. The Maryland Workers Compensation Act is codified at LE sections 9-101 et seq. ( the Act ). 3 Three sec tions of the A ct bear on th e contentio ns advan ced in this appeal. First, in pertinen t part, section 9 -736 prov ides: 3 Unless otherwise provided, all further statutory references are to the Labor and Employment Article of the Maryland Code (1957, 1999 Repl. Vol., 2007 Cum. Supp.). 4 (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) [T]he Com mission m ay not modif y an award u nless the modification is applied for within 5 years after the latter of: (i) the date of the acciden t; (ii) the date of disablement; or (iii) the last com pensation payme nt. (Empha sis supplie d.) Seco nd, section 9-667, under the Benefits subtitle, is captioned Wage reimbursement, and reads: In addition to any other compensation paid to a covered employee entitled to compensation under this title, the employer or its insurer shall reimburse the covered e mployee fo r lost wage s due to time spent: (1) being examined by a physician or other examiner at the request of the employer or its insurer; and (2) attending and traveling to and from a Commission hearing scheduled as a result of a continuance caused by action of th e employer o r its insurer. (Empha sis added.) Finally, section 9-101(e)(1) defines compe nsation as money pa yable under t his title to a covere d emp loyee or th e depe ndents of a co vered e mployee . 4 Yingling contends that the regular wage Millennium paid him for February 26, 2004, the day of his IME, was a wage reimbursement benefit under section 9-667, and hence was a compensation payment within the meaning of section 9-736(b)(3)(iii). Therefore, the five-year limitations period in that subsection began to run on February 26, 2004, not on April 13, 1998, and had yet to expire on September 29, 2004, when he filed his request to re- 4 There is no dispute in this case that Yingling was a covered employee. 5 open his claim for TT D ben efits. Yingling maintains that, on the facts before it, the circuit court erred in concluding otherwise. Millennium responds that Yingling was not paid to attend the IME on February 26, 2004; rather, his regular wages were not docked for that time. Therefore, he did not receive a wage re imbursem ent bene fit under sec tion 9-667 . Alternatively, even if the wage Yingling was paid for the time he spent attending the IME on February 26, 2004 qualifies as a wage reimbursement, under section 9-667, it was not a compensation payment, within the meaning of section 9-736(b)(3)(iii), as it was not paid incident to an order or award of the Commission. We conclude that the regular pay that Yingling received for February 26, 2004, was not a wage reimbursement, under section 9-667. The meaning of statutory language is a question of law that we decide de novo. D avis v. Slater, 383 Md. 599 , 604 (2004). Our p rimary goal in con struing a statu te is to ascertain and effect uate th e intent o f the leg islature. Clipper Windpower v. Sprenger, 399 Md. 539, 553 (2007 ). We b egin w ith a read ing of th e plain la nguag e of the statutory te xt. Walker v. Dep't of Human Res., 379 M d. 407, 420 (2004). If the legislative in tent is clear fro m this plain language reading, there is normally no need to pro be further, and our in quiry comes to an end. Casey v. M ayor and City Cou ncil of Rock ville, 400 M d. 259, 2 88 (20 07). Neither Maryland a ppellate cou rt has had re ason to interpret the meaning of section 9-667, as it now exists, or its predecessor statutes. Yingling argues that the opening clause 6 of the section, [i]n addition to any other compen sation paid to the cov ered em ployee . . . , means that wage reimbu rsement is a form of a compen sation under the A ct. In the case at bar, wheth er wage reimburse ment is a form of compensation is only a relevant question, however, if the regular pay that Yingling receive d for February 26, 2004 was, for the period of time Yingling attended the IME that day, a wage reimbursement. The plain meaning of the wo rd reim bursem ent do es not su pport su ch a co nclusio n, how ever. The ordinary dictionary definition of reimburse is to make repayment to for expense or loss in curred and to pay ba ck; refu nd; rep ay. R ANDOM H OUSE W EBSTER S C OLLEGIATE D ICTIONARY , 1135 (1995 ). See also M ERRIAM W EBSTER S C OLLEGIATE D ICTIONARY 1049 (11th ed. 2003) (defining reimburse to mean to pay back to someone or to make restoration or payment of an equiva lent to ). In a leg al context, reimburs ement means repayment o r indemn ification. B LACK S L AW D ICTIONARY 1312 (8th ed. 2004). See also D ICTIONARY OF M ODERN L EGAL U SAGE 748, 846 (2nd ed. 1995) (definition of reimbursement merely refers to subrogation (c), which in turn explains that the equitable doctrine of reimb ursemen t serve[s] to prevent the unearned enrichment of one party at the expense of another by creating a r elation similar to a constructiv e trust in favor of the party m aking paym ent in the creditor s le gal rights. ). In a ll of these definitions, reimbursement connotes repayment of a loss -- not regular payment in the absence of loss. Likewise, it is clear from the contex t of the sha ll reimburse language in section 9-6 67 that, for a payment to be a reimbursement, it must be a repayment of what otherwise would be a 7 loss: . . . the employer or its insurer shall reimburse the cove red employee for lost wages . . . . In the case at b ar, Yingling did not lose a ny wages d ue to time sp ent attending the IME at Millennium s request. He was paid his regular wage, as if he had not taken any time off to attend the IME. He was paid, not reimbursed. The regular wage that Yingling received for a full day s work on February 26, 2004, was not a reimbursement of wages, under the ordinary meaning of the word re imbursem ent, and the refore und er the plain meaning of section 9-667. In his brief, Yingling makes much of the fact that Millennium at first was refusing to pay him for th e time he w ould be sp ending at th e IME, a nd only agree d to pay him when a union representativ e intervene d and a w ritten memorandum of agreement was prepared. Whether Millennium paid Yingling his regular wage for February 26, 2004 happily, or unhappily, is of no moment. The wage w as paid at the time it was due, as regular pay. Yingling did not lose any wages for which he later was reimbursed. Moreover, the fact that Millennium paid the wage involuntarily, as Yingling puts it, because he asserted his right to be paid in f ull, also matters not. Millen nium did not refuse to pay Yingling his full wage for February 26, 2004; for that reason, Yingling did not sustain a loss, and Millennium was not ordered, nor was there any reason to order it, to repay him. Yingling s statute of limitations argument hinges upon his having received a wage reimbursement. As explained above, he argues that a wage re imbursem ent is 8 com pensat ion, under section 9-101, and further is a compensation payment, within the meaning of 9-736(b)(3)(iii). We express n o opinion about w hether a wage reim burseme nt, if made, is compensation for purposes of the five-year statute of limitations. Millennium offers many legal and policy reasons why a wage reimbursement is not and should not be a payment of compensation so as to toll the running of that limitations period. Because the regular pay Yingling received for February 26, 2004, was as a matter of law not a wage reimbu rsemen t, howev er, we nee d not decid e whethe r a wage r eimbursement is compensation w ithin the meanings of se ctions 9-101(e)(1) and 9 -736(b)(3)(iii). When Yingling was paid his regular wage for the day he attended the IME, he did not receive a wage reimbursement under section 9-667, and therefore, even if a wage reimburse ment were compensation, he did not receive compensation that day. The last payment of compensation Yingling received was on April 13, 1998. As his request to reopen his award of TTD was not made until more than five years after that last compensation date, it was time-barred, under section 9-736(b)(3)(iii). The circuit court properly granted summary judgment on the TTD claim on that basis. II. Alte rnatively, Yingling contends that the Commission erred by treating the February 17, 2000 Aw ard of Com pensation as an aw ard at all for purposes of section 9-736(b) because Yingling did not receive an actual payment of compensation from the 2000 Award of Co mpen sation. Thus, he a rgues, the C ommissio n should have treated the 2000 9 Award of Com pensation as an ord er to continue treatment under Dr. Murray and to pay TTD benefits upon surge ry. As an order instead of an award, the request for modification would not have been subject to the five-year statute of limitations in section 9736(b)(3). Instead, an order of the Commission is governed by section 9-736(b)(2), which provides that the C omm issio n ma y modify any finding or order as the Commission considers justified without time restrictions. Yingling raised this point before the Commission but not before the circ uit court. Acc ordingly, for reasons that we sh all explain further infra, this assignm ent of error is not preserved for our review. An aggrieved party has two options when seeking judicial review of a Commission decision. Under section 9-745(e), the party can request what this Court has characterized as a routin e adm inistrativ e appe al, Bd. of Educ. for Montgomery County v. Spradlin, 161 Md. App. 155, 160 (2005), in which the circuit court proceeds on the same record as the Commission and determ ines whe ther the C ommissio n acted w ithin its powers and correctly construed the law and facts. § 9 -745(e). See Applied Indus. Technologies v. Ludemann, 148 Md. App. 272, 287 (2002) (trial court review under § 9-745(e) is based on the record before the Co mmiss ion), cert. denied, 374 M d. 82 (2 003). Or, pursua nt to section 9-745(d), [o]n a motion of any party filed with the clerk of the c ourt . . . the court shall submit to a jury any question of fact inv olved in the case. In this manne r of review , the court co nducts what is e ssen tially [a] de novo trial -- receiving evidence outside of the record before the 10 Commission and making indepe ndent f inding s of fac t. Baltimor e Coun ty v. Kelly, 391 Md. 64, 74-75 (20 06); see also Richardson v. Home Mut. Life Ins. Co., 235 Md. 252 , 255 (1964). Under either mod e of review , the decision of the Co mmission is presume d to be prima facie correct. § 9 -745(b)(1) ; Kelly, supra, 391 M d. at 74. As we observed in Board of Education for Montgomery County v. Spradlin, supra, although section 9-745(d) expressly contemplates a jury sitting as the fact-finder in such an essentially de novo trial, it has long b een the practice in Maryland for the trial judg e to serve as the fa ct-find er whe n reque sted by a p arty. 161 M d. App . at 176- 77. See also R.P. Gilbert and R.L. Hum phrey, Maryland Workers Compensation Handbook § 17.4 (2nd ed. 1993) ( The practice is that appeals are presented to trial courts in one of two fashions: (1) the submission of the case to the judge on the basis of the record made before the Commission; or (2) a de novo evid entiary hearing before the court sitting with or without the jury. ). When a party pursues judicial review under section 9-745(d) by means of an essentially de novo trial in the circu it court, we review the decision of the circuit court, not that of the Com mission . See Commercial Transfer Co. v. Quasny, 245 Md. 572, 578 (1967) (on appeal from a de cision by the C ommissio n, appellate review is limited to the questions raised in the appeal to the lower court perm itted by the Ac t ); Gly Co nst. Co. v. D avis, 60 Md. App . 602 , 605 (198 4) (after a n ess entia lly de novo trial in the circuit court, this Court does not review a decision of the [Commission] but rather th at of the circuit co urt. ), cert. 11 denied, 302 Md. 288 (1985). And, pursuant to Rule 8-131(a), we shall not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court. See Mo ntgome ry Coun ty v. Ward, 331 M d. 521, 526 n.6 (1993 ) (explaining that, ordinarily, the Court of Appeals would not entertain an assignment of error as to the Commission s decision unless it was raised in the circuit court and Court of Special Appeals); Applied Indus. Technologies, supra, 148 Md. App. at 287 (failure to present an issue to trial court on appeal from a Commission decision was fatal to preservation of the issue for appellate review). It is clear from the record in this case that the circuit court was proceeding under section 9-745(d), with a separate evidentiary hearing and independent findings o f fact. Acc ordingly, our review of Ying ling s claims is limited to thos e issues raised in or decided by the circuit cou rt. Yingling d id not argue in the circuit co urt that the 2000 Award of Compensation actually was an order by the Commission that could be modified at any time, and the court did not decide the issue. Th erefore, the is sue is not pro perly before th is Court for decision. JUDGMENT A F F I R ME D . COSTS TO BE PAID BY THE APPELLANT. 12 13

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