Workers’ Compensation Commission Lacks Revisory Authority to Retroactively Re-Adjust Rate of Compensation Previously Paid

Montgomery County, Maryland v. Peter Gang, No. 768, September Term, 2017. Opinion by Shaw Geter, J.

In November of 2018, the Court of Special Appeals of Maryland determined that the revisory power of the Workers’ Compensation Commission ("Commission") did not permit the Commission to retroactively re-adjust the rate of compensation of an award previously paid. Rather, the Commission’s revisory power is limited by statute to future awards where certain statutory requirements exist.

            This action arose when Peter Gang, a correctional officer employed by Montgomery County, was injured on the job. He filed a workers’ compensation claim and the Commission, finding that he suffered permanent partial disability, awarded $157.00 per week, for seventy (70) weeks. Neither party filed a motion for a rehearing or appealed to the circuit court. 

Almost four years later, Mr. Gang made a “Request for Document Correction” claiming that he was paid at the incorrect rate. Both parties agreed that the $157.00 rate was erroneous because as a public safety officer, he was entitled to a higher pay rate. As a result, the Commission issued an amended award, retroactively modifying Mr. Gang’s compensation to $314.00 per week. 

Montgomery County filed two requests for a rehearing, and the Commission, granting the second request, affirmed its order, finding that the order constituted proper use of the Commission’s statutorily allowed power of “continuing jurisdiction.” Montgomery County appealed to the Circuit Court for Montgomery County, which affirmed the Commission’s decision. Montgomery County then appealed to the Court of Special Appeals of Maryland. 

Montgomery County argued that the retroactive award by the Commission violated its authority, relying on statutory and case law. Also relying upon prior case law, Mr. Gang argued that the Commission’s broad revisory powers allowed it to make the modification as a correction of a clerical mistake. 

            The Court of Special Appeals, using Section 9-736 of the Labor and Employment Article (which addresses the Commission’s revisory power), decided that the Statute did not give the Commission the express authority to retroactively modify an award. The Court reasoned that the Commission undeniably readjusted the rate of compensation and ordered additional compensation for a past award, even though there was no express authorization in the Statute to do so. It further rationalized that an interpretation to the contrary would render part of the Statute meaningless, which limits adjustments to future application only. Declining to infer a legislative intent, the Court also noted that this was not a correction of a clerical mistake, and the Commission's first award constituted a final award—especially when Mr. Gang took no action to correct the award for four years.

-Mitchell Fine, Law Clerk