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Jones v. Potomac Edison Company11/6/2003
This appeal is from a judgment of the Circuit Court for Washington County that affirmed a decision of the Workers' Compensation Commission (the Commission) denying appellant, Charles N. Jones, temporary total disability benefits.
On 29 May 1979 and on 3 April 1984, appellant sustained compensable accidental injuries while in the employ of Potomac Edison Company, appellee. As a result of those injuries, he received a sixty-percent permanent partial disability award by the Commission on 27 July 1989. The last payment under that award was made on 28 June 1995.
On 6 October 1997, appellant underwent surgery to repair a torn rotator cuff in his right shoulder. Appellee authorized and paid the medical expenses associated with appellant's rotator cuff surgery. As a result of the surgery, appellant was absent from his employment from the 6th to the 31st of October 1997. Appellee paid appellant sick leave for that time period, but no workers' compensation benefits were paid in connection with that operation.
On 21 October 2001, appellant filed issues with the Commission, seeking temporary total disability for the October 1997 absence from work. The Commission denied those benefits as being time barred by § 9-736 of the Labor and Employment Article of the Maryland Code.
Appellant filed an appeal to the Circuit Court for Washington County. By order dated 15 July 2002, the circuit court granted summary judgment in favor of appellee and affirmed the Commission's decision. This timely appeal followed.
The sole issue presented by appellant is whether the circuit court erred in finding that appellant's petition to re-open the 27 July 1989 award of compensation was barred by the five year statute of limitations provided by § 9-736 of the Labor and Employment Article. Finding no error, we shall affirm.
DISCUSSION
Section 9-736 of the Labor and Employment Article provides, in relevant part:
(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 (3) 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.
Appellant contends that the sick leave benefits he received should be considered as "compensation" that tolled the five year statute of limitations. We disagree.
"Compensation" is defined in § 9-101(e) of the Labor and Employment Article as "the money payable under this title to a covered employee or the dependants of a covered employee." (Emphasis added.) Wages paid as sick leave benefits are not "money payable under this title." Sick leave payments result from employment contracts, express or implied, and are based on past service. Sick leave benefits have little, if anything, to do with whether there has been an "accidental injury that arises out of and in the course of employment," a claim
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