Buskirk v. C.J. Langenfelder & Son, Inc.

764 A.2d 857, 136 Md. App. 261, 2001 Md. App. LEXIS 4
CourtCourt of Special Appeals of Maryland
DecidedJanuary 3, 2001
DocketNo. 300
StatusPublished
Cited by15 cases

This text of 764 A.2d 857 (Buskirk v. C.J. Langenfelder & Son, Inc.) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Buskirk v. C.J. Langenfelder & Son, Inc., 764 A.2d 857, 136 Md. App. 261, 2001 Md. App. LEXIS 4 (Md. Ct. App. 2001).

Opinion

EYLER, Judge.

At all times relevant to this appeal, a petition to modify a workers’ compensation award had to be filed within five years after the date of the last compensation payment. Md. Code (1999 Repl. Vol.), Labor & Employment (LE) section 9-736. The issue presented in this case is whether a claimant who files a petition to reopen an award within that five-year period alleging a worsening of condition but not alleging a change in disability status, and not requesting a modification of disability status, is in compliance with section 9-736 when the claimant does seek such a modification after the five-year period has run. We hold that, when a petition to reopen to modify an award is based on a change in disability status, the petition must be filed within the five year period and allege a change in disability status, with a basis in fact, as opposed to [264]*264merely alleging continuing medical treatment. Because there was no such request nor a showing of such a basis in this case, we hold that the petition was not timely filed and affirm the Circuit Court for Allegany County, which affirmed the decision of the Workers’ Compensation Commission (Commission).

Factual Background

Carl E. Buskirk, appellant, filed a workers’ compensation claim against C.J. Langenfelder & Son, employer, and Maryland Casualty Company, insurer, both appellees.

The parties have submitted the case on an Agreed Statement of Facts as follows:

1. The Claimant in this Workers’ Compensation appeal, received a Supplemental Award of Compensation on January 9, 1989, finding that he had a 60% industrial loss of use of his body, 35% of the disability to his back attributable to the October 22, 1986 work injury, and 25% due to preexisting conditions. Under the Supplemental Award, the Employer and Insurer were directed to pay the Claimant 175 weeks of benefits, and, beginning at the end of the compensation paid by the Employer and Insurer, the Subsequent Injury Fund was directed to pay 125 weeks of benefits to the Claimant.
2. The Employer and Insurer made their last payment of benefits to the Claimant on March 28, 1990, and thereafter the Subsequent Injury Fund made its final payment on July 31,1992.
3. On or about May 13, 1993, the Claimant filed a Petition to Reopen for Worsening of Condition. That Petition was also accompanied by a letter asking the Commission not to schedule a hearing in this case until one was requested. In accordance with the Claimant’s request, no hearing date was scheduled by the Commission. That Petition to Reopen was never withdrawn.
4. The medical treatment that precipitated the Petition to Reopen, was a May 5, 1993 office visit with Dr. Jose Corvera. Following that, the Claimant did not see Dr. [265]*265Corvera again until September 26, 1996. At that time, Dr. Corvera recommended an MRI scan of the lumbar spine.
5. On or about January 16, 1997, the Claimant filed Issues with the Commission seeking “Medical Care and Treatment—MRI lumbar spine—Dr. Corvera.” Thereafter, the Commission scheduled a hearing on the Claimant’s Issues on June 17,1997. The Subsequent Injury Fund requested a postponement of that hearing on the basis that “the issue in this case is worsening of condition” and the Fund had not received any medical reports since the last Award. The Claimant responded with a Request for Document Correction, stating that “the issue is medical care—authorization for MRI” and that the case should not be postponed. Subsequently, the Employer and Insurer agreed to pay the outstanding MRI bill, and the Claimant filed a Request for Continuance of the June 17, 1997, indicating that the Issues were resolved by the parties.
6. In June of 1997, the Claimant resumed treatment with Dr. Corvera, and on September 15, 1997, the Claimant filed Issues with the Commission, along with a Request for Reopening, Reconsideration, or Rehearing. The Issues raised by the Claimant included medical care and treatment, as well as temporary total disability benefits from July 21, 1997 to the present and continuing.
7. On or about January 7, 1998, the Employer and Insurer filed Issues regarding whether the claim for temporary total disability benefits is barred by limitations under Section 9-786(b) of the Act. On June 2, 1998, a hearing was held before the Commission, and as a result, on June 5, 1998, the Commission issued an Order finding that the Petition to Reopen was not timely filed within the five year limitation period. Thereafter, the Claimant filed a timely request for Rehearing which was denied by the Commission in an Order dated July 8, 1998. The June 5, 1998 and July 8, 1998 Orders are the subject of this Petition for Judicial Review.

Discussion

The relevant statutory provision is LE section 9-736, which provides:

[266]*266Readjustment; continuing powers and jurisdiction; modification .
(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 (8) 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 last compensation payment.
(c) Estoppel; fraud.—(1) If it is established that a party failed to file an application for modification of an award because of fraud or facts and circumstances amounting to an estoppel, the party shall apply for modification of an award within 1 year after:
(i) the date of discovery of the fraud; or
(ii) the date when the facts and circumstances amounting to an estoppel ceased to operate.
(2) Failure to file an application for modification in accordance with paragraph (1) of this subsection bars modification under this title.

As is apparent from the above, the parties agree that the date of the last disability benefit payment was July 31, 1992, and that on May 13,1993, appellant filed a “Petition to Reopen for Worsening of Condition,” which was never withdrawn. The petition recited that “claimant has had an increased [267]*267worsening of condition” and that the claimant “has seen a physician for these further difficulties.” The petition did not allege a change in disability status, nor did it request modification of claimant’s disability status or any other relief. The petition was accompanied by a letter requesting that the case not be scheduled for a hearing.

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Bluebook (online)
764 A.2d 857, 136 Md. App. 261, 2001 Md. App. LEXIS 4, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buskirk-v-cj-langenfelder-son-inc-mdctspecapp-2001.