Montgomery County v. Willis, 3081, September Term, 2007.

Decision Date28 August 2009
Docket NumberNo. 3081, September Term, 2007.,3081, September Term, 2007.
Citation979 A.2d 209,187 Md. App. 514
PartiesMONTGOMERY COUNTY, Maryland v. Valerie J. WILLIS.
CourtCourt of Special Appeals of Maryland

Wendy B. Karpel (Leon Rodriguez, County Attorney, Marc P. Hansen, Edward B. Lattner, Karen L. Federman Henry on the brief), Rockville, MD, for the Appellant

Douglas M. Gross (Chirumbole, Gross & Conrad P.C. on the brief), Gaithersburg, MD, for Appellee.

Panel: HOLLANDER, MEREDITH, and THIEME, RAYMOND G., JR., (Retired, specially assigned), JJ.

HOLLANDER, J.

In this appeal, we must determine whether an employer is entitled to judicial review of an Order issued by the Workers' Compensation Commission (the "Commission"), denying the employer's request to refer a worker's compensation claim to the Insurance Fraud Division (the "Division") of the Maryland Insurance Administration.

Valerie Willis (the "Employee" or the "Claimant"), appellee, a former Montgomery County Police Officer, obtained compensation benefits for a work related injury sustained in July 2001. Montgomery County (the "County" or the "Employer"), appellant, claimed that after the work-related event, but before benefits were awarded, the Employee sustained a nonwork related injury that she failed to disclose. On that basis, pursuant to Md.Code (2008 Repl.Vol.), § 9-310.2 of the Labor and Employment Article ("L.E."), the County filed a "Request for a Hearing for Referral to the Maryland Insurance Fraud Division." After an evidentiary hearing, the Commission determined there was insufficient evidence of fraud, and declined to refer the matter to the Division. Thereafter, the County sought judicial review in the Circuit Court for Montgomery County. The Claimant moved to dismiss, arguing, inter alia, that the Commission's Order was not appealable. The circuit court agreed and dismissed the appeal.

This appeal followed. The County presents one question for our review, which we quote:

When an employer seeks reimbursement of workers' compensation benefits based on its belief that an employee wrongfully obtained those benefits, is the Commission's determination subject to review in the circuit court as a final order of the Commission?1

For the reasons that follow, we shall reverse and remand to the circuit court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND2

Valerie Willis, a former Montgomery County Police Officer, injured her left knee during a training exercise on July 20, 2001. Despite the injury, Ms. Willis continued to work. She injured her knee again during "a shooting scenario" in August 2001, for which she did not seek medical treatment. Rather, she cared for her knee herself while continuing to work. Then, on December 31, 2001, appellee injured her knee for a third time. On this occasion, however, the injury was not work-related. Appellee was diagnosed with a ruptured anterior cruciate ligament ("ACL"), for which she underwent surgery on January 30, 2002.

On January 26, 2002, a few days before appellee's first surgery, Willis's direct supervisor, Corporal Ed Shropshire, filed with the Commission an "Employer's First Report of Injury or Illness" for appellee. He listed July 20, 2001, as the date the Employer had been notified of appellee's injury.

On March 4, 2002, the Claimant signed a form titled "Employee's Claim Workers' Compensation Commission," in which she represented that she had twisted her left knee during a training exercise on July 20, 2001, and that she had given notice to Lieutenant Rodney Hill on that date. Appellee filed a "Corrected Claim" with the Commission on April 21, 2002, indicating that she injured both her left knee and her back on July 20, 2001. The claim listed July 21, 2001, as the "1st day unable to work," and reflected that Willis returned to work on July 26, 2001. Neither the initial claim nor the corrected claim referred to the incident of December 31, 2001. Nor did the County have any records pertaining to the December 2001 occurrence. According to the County, the claim was "accepted" but "no medicals were forthcoming."

On June 4, 2002, the Commission issued an Order, finding that Willis sustained an accidental injury "arising out of and in the course of employment" on July 20, 2001. But, the Commission ordered that the claim for compensation "be held pending until such time as the nature and extent of the claimant's disability, if any, can be determined."

Appellee had a second knee surgery on September 26, 2005, to repair a torn meniscus in the left knee, for which the County paid the medical expenses. Willis was awarded temporary total disability ("TTD") from September 1, 2005, through February 23, 2006.3 In April 2006, appellee sought TTD benefits dating to 2002. According to the County, at that point it obtained medical records for the period prior to June 2002, which "revealed an intervening event that was non work related."

On November 20, 2006, through the Montgomery County Self-Insured Fund, appellant filed with the Commission a form titled "Request For A Hearing For Referral To Maryland Insurance Fraud Division" (the "Petition"). The preprinted form stated:

This form may be filed by any party at any time.

The Commission shall refer the case on the person named below to the Insurance Fraud Division in the Maryland Insurance Administration where the Commission finds, after a hearing, that a party requesting the referral has carried the burden of establishing by a preponderance of the evidence that the named person knowingly affected or knowingly attempted to affect the payment of compensation, fees, or expenses under Title 9 of the Labor Law by means of a fraudulent representation.

The undersigned alleges that the person named below violated section 9-310.2(a) of the Labor & Employment Article and requests a hearing before the Commission.

The Commission held an evidentiary hearing on the Petition on April 17, 2007. The Employer's attorney represented that the matter concerned a claim of "Fraud." Explaining "the basis of the fraud," the County's lawyer said:

[I]n May of 2002, ... [appellee] indicated that she twisted her knee on the job in July of 2001, the claim was accepted at that time. No medicals were forthcoming. The medicals we had, that we later received very soon thereafter, was June 24th, 2002 and beyond. So the claim was accepted.

Then in April of 2006, she made a claim for T.T.D. back in 2002, a back claim for temporary total disability. At that point, we were able to secure the medicals predating June of 2002. Those medicals revealed an intervening event that was non work related. That was the first time that the County was aware that there was a non work-related accident on or about December 30th or 31 st of 2001. And then we also found at that time that she had a surgery, an ACL reconstruction, related to that incident in January of 2002. That surgery was never paid for by the County, but a subsequent surgery of 9/26/2005 was paid by the County and the T.T.D. related to that.

And that's the basis of the fraud that we were never informed of the—and there was no treatment from July of 2001 until January of 2002, until the intervening event. And the County was unaware and never informed of the intervening event.

Willis testified that she injured herself while on duty on July 20, 2001, while carrying a bullet proof shield. She recalled that she planted her foot, twisted, heard a popping sound, and could not walk for fifteen or twenty minutes. According to appellee, she promptly notified her supervisor, Lieutenant Rodney Hill, but she did not file a claim for compensation at that time. She explained that she did not miss work because she had three days off and treated her knee while at home, with ibuprofen and ice. As a result of her knee injury in July 2001, Willis was temporarily placed on light duty.

Appellee recounted that she sustained a second injury while on duty in August 2001:

[W]e were doing a shooting scenario where we were required to jump up out of the car, run up to the range and engage bad guys, for lack of a better term. When I hit the cement where I had to kneel behind a barrier, my left leg went out from underneath me in a slipping motion and I fell to the ground ....

Willis did not seek medical treatment at that time, nor did she miss work. Again, she self-treated with ice and ibuprofen.

Then, on December 31, 2001, Willis injured her knee for a third time, when she jumped off a pick-up truck while "at church." She was not on duty at the time. Willis recounted that she "hopped off" the truck and her "knee twisted," which caused "excruciating pain, extreme swelling." Willis sought medical attention from her primary care physician, Dr. David Harding, on January 2, 2002. The next day, she was seen by Dr. Sheldon Mandel, an orthopaedic surgeon. His report reflects that Willis only mentioned her injury of December 31, 2001.

According to appellee, shortly after her third knee injury, she spoke with her supervisor, Lieutenant Hill. As a result of that conversation, Willis consulted Dr. David Higgins, an orthopaedic surgeon, on January 17, 2002, and an attorney. As noted, she filed a workers' compensation claim on March 4, 2002, pertaining to her injury of July 20, 2001.

Dr. Higgins diagnosed appellee with a torn ACL, a torn medial meniscus, and a torn lateral meniscus. He performed knee surgery on appellee on January 30, 2002. Willis did not ask the County to pay for the surgery, nor did it do so.

On cross-examination, the following ensued:

[EMPLOYER'S COUNSEL]: And the first time you went to the doctor for your knee problems was on January 2nd, 2002; is that—

[EMPLOYEE]: That is correct. That was Dr. Harting [sic].

[EMPLOYER'S COUNSEL]: And, at that point, you gave a history of jumping off of the truck; is that correct?

[EMPLOYEE]: That's correct. My knee was so swollen, I couldn't get a pair of jeans on.

* * *

[EMPLOYER'S COUNSEL]: And when you saw [Dr. Mandel on January 3, 2002]...

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