Maryland Court of Special Appeals Holds that Written Evaluation of Permanent Impairment is Required to Toll Statute of Limitations in Workers’ Compensation Cases

Jesse Kelleher v. Montgomery County, Maryland, No. 2231, September Term, 2017 – Unreported

Circuit Court for Montgomery County Case No. 430553-V

            On February 6, 2007, while fighting a fire, Jesse Kelleher (“Kelleher”) injured his left knee.  Kelleher subsequently filed for temporary total disability and permanent partial disability with the Workers’ Compensation Commission (the “Commission”). On December 12, 2008, the Commission found that Kelleher sustained a thirty percent (30%) permanent impairment of his left knee and awarded him compensation for the injury.  In July 2011, Kelleher filed a Request for Modification of his award as a result of his deteriorating condition. In October 2011, the Commission found that Kelleher sustained a thirty-five percent (35%) permanent partial disability, or a five percent (5%) additional deterioration of his left knee. 

            Beginning in April 2016, Kelleher experienced increased pain in his left knee.  Therefore, he sought medical treatment.  On June 9, 2016, Kelleher filed a Request for Modification Issues form (“Request for Modification”) with the Commission, claiming that the permanent condition of his left knee had deteriorated again and requesting the Commission modify the October 2011 Order.  On September 22, 2016, Kelleher filed yet another Request for Modification with the Commission claiming additional deterioration to his left knee. Kelleher did not submit a written evaluation of permanent impairment with either Request for Modification. 

On December 20, 2016, Dr. Kevin McGovern, on behalf of Kelleher, issued a report encompassing a permanent impairment rating for Kelleher’s left knee.  Montgomery County (the “County”) also obtained an expert report with an impairment rating. 

The Commission held a hearing on the matter.  Prior to, and during the hearing, the County did not file issues pursuant to Code of Maryland Regulation (“COMAR”) 14.09.03.02.  The County also did not object to Kelleher’s Request for Modification at the hearing.  Instead, on the day after the hearing, the County submitted a letter to the Commission alleging Kelleher’s Request for Modification was outside the applicable five-year statute of limitations under L.E. § 9-736(b), and thus the Commission could not modify the award. The County further argued that Kelleher filed each of his Requests for Modification without first obtaining a written evaluation of impairment as required by COMAR 14.09.03.13(d) and 14.09.09.02(b). 

Kelleher’s counsel responded by arguing that the applicable case law only required Kelleher to present medical evidence of the deterioration at the time of the hearing, rather than at the time the Request for Modification was filed. The Commission ultimately found Kelleher’s permanent partial disability to his left knee had increased to forty percent (40%), demonstrating a five percent (5%) deterioration. The Commission considered the arguments raised regarding the statute of limitations and found that the Request for Modification was not barred by the statute. 

The County appealed to the Circuit Court for Montgomery County.  Kelleher requested a jury trial and proposed two issues for the jury to consider: (1) whether the Request for Modification was filed, with a “basis in fact,” within the five-year statute of limitations period pursuant to L.E. § 9-736(b); and (2) the nature and extent of the deterioration of Kelleher’s left knee. 

The circuit court determined that Kelleher’s first question involving the statute of limitations was a question of law and denied Kelleher’s request to propose it to a jury. The circuit court then reversed the Commission’s decision finding that Kelleher had not filed his Request for Modification with a written evaluation of permanent impairment as required by COMAR 14.09.09.02.  Kelleher filed a Motion for Reconsideration, or in the alternative, to Remand; however, the court denied Kelleher’s motion.  Kelleher then appealed the matter to the Maryland Court of Special Appeals.

The Court of Special Appeals concluded that the circuit court did not err in denying Kelleher’s request for a jury trial because the limitations question was a question of law. Further, the Court found that the parties did not disagree on when Kelleher filed his Requests for Modification, that he did so without first obtaining a written evaluation of permanent impairment, and when he obtained his final permanency ratings. As a result, the Court concluded that there were no disputes as to any material facts, and Kelleher was not entitled to a jury trial on the issue.

The Court of Special Appeals then determined that the lower court did not err in finding that Kelleher’s claim was barred by the statute of limitations.  Kelleher’s Request for Modification did not satisfy the requirements imposed by the regulations because he filed a Request for Modification without first obtaining a written evaluation of permanent impairtment as required by COMAR 14.09.09.02. 

Kelleher claimed that Dove v. Montgomery County Bd. Of Educ. required him to only provide (at the time of filing) relevant medical information in his possession to the other involved parties.  178 Md. App. 702, 715-16 (2008).  The Court noted that Dove was decided prior to the Commission’s adoption of the applicable COMAR regulations.  Additionally, the Court found that Dove required the claimant to apply for a worsening of permanent impairment with a basis of fact, which is complementary with COMAR 14.09.09.02.  Id. at 714. 

Kelleher further argued that the County waived the statute of limitations issue because it raised the issue after the Commission’s hearing, rather than in an Issues form prior to the hearing.  The Court of Special Appeals found this argument without merit because Kelleher cited to no legal authority to support that contention.  Moreover, the Court cited COMAR 14.09.03.02, which provides: “[a]fter the claim has commenced, any party may raise an issue by filing an Issues form, available on the Commission website.”  The discretionary language of COMAR 14.09.03.02, therefore, did not require the County to affirmatively plead the limitations defense.

            Kelleher also contended that the Commission made a factual determination regarding whether he had a “basis in fact” to file a Request for Modification, that the finding was prima facie correct, and should not have been reversed as a matter of law.  The Court disagreed, maintaining that Kelleher’s question was a purely legal question, as opposed to a factual question, and therefore, the Commission’s findings received no deference pursuant to L. E. §9-745 (b).

            Finally, Kelleher insisted civil due process required that a court refrain from ruling on an issue that was not raised before the Commission. The Court of Special Appeals countered with the fact that Kelleher was afforded the opportunity to, and did, in fact, respond to the County’s post-hearing letter regarding the statute of limitations.  It also remarked that Kelleher had the burden of proving that his action was initiated within the prescribed time period, but Kelleher failed to meet this burden.

Ultimately, the Court indicated that the County’s statute of limitations argument was not moot solely because the County paid Kelleher’s award. L. E. §9-736 does not stay an award of compensation, and thus, County was obligated to pay Kelleher’s award despite the appeal. 

            This case illustrates the various arguments defense counsel could use when confronted with a statute of limitations issue.  It should be noted, however, that this is an unreported opinion and should not be relied upon as legal authority.

-Ashley Bond, Associate Attorney