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Carey v. Chessie Computer Services11/14/2001
tirely new apple, simply because it belatedly impleaded the Fund. Consequently, we reiterate: the Commission's first decision remains in full force and effect until the case has been reheard, with the Fund present, and a new decision issued by the Commission. If the Fund declines to participate in that rehearing or is dismissed as a party, the Commission may permit any existing award of compensation or order of the Commission to stand without conducting the proceedings that the impleading on the Fund would have required.
The perils of holding otherwise are vividly illustrated by the facts of the case sub judice. In contrast to Eastern Stainless Steel, the issues in the instant case have never been reheard. The Commission has not as yet held a second hearing and therefore, as of the date of this opinion, is no closer to rendering a second decision to supersede the first. To hold that the mere impleading of the Fund renders the Commission's 1996 decision, awarding appellant temporary total disability benefits, a nullity would not only be an unwarranted extrapolation from the language of L.E. § 9-807, it would undermine the very purposes of the Workers' Compensation Act: it would in effect deny appellant, for an unconscionably long period of time, the benefits she was lawfully awarded until the Commission has reheard the case.
Nor does our recent decision in Carroll v. State of Maryland, Patuxent Inst., 136 Md. App. 319 (2001), lend support for the proposition that a remand to permit the Fund to participate in a rehearing of the issues renders the existing award of compensation a nullity. In Carroll, the Commission found that the claimant had suffered a permanent partial disability and ordered his employer/insurer to pay compensation. Id. at 323. The claimant subsequently filed a motion for rehearing in which he sought, among other things, an increase in benefits. Id. After the Commission denied his motion, the claimant filed a petition for judicial review in the Circuit Court for Anne Arundel County. Id. On the morning of trial, the claimant's employer/insurer filed a motion to implead the Fund and to remand the matter to the Commission. Id. After a hearing, the circuit court granted that motion, whereupon the claimant noted an appeal to this Court. Id. at 324. On appeal, the claimant argued that "he should not be made to return to the Commission to retry issues that already . . . been determined," especially given that the disposition of those issues was insufficient to establish the prerequisites of Fund liability. Id. at 329. He also claimed that the case should not be remanded unless "a jury determines that the disability resulting from the subsequent injury is such as to require payment by the Fund." Id. In rejecting the claimant's arguments, we determined that L.E. § 9-807 did not require that "conditions requisite for payment by the fund" be established before it may be impleaded. Id. at 328. Citing Eastern Stainless Steel, we concluded that when the Fund is impleaded in an action for judicial review, the case must be remanded so that the Commission may "determine all issues anew." Id. at 329. " nly by doing so," we explained, "may the Fund have the opportunity to defend the claim." Id.
We did not, however, state that the Commission's decision becomes a nullity upon the impleading of the Fund. The proceedings "begin anew" in that the parties have an opportunity to revisit and retry issues that had been previously decided. The Commission's first decision, however, remains in effect until superseded by a subsequent decision of the Commission on the same issues. To hold otherwise, as noted earlier, would mean a suspension in the payment of benefits to the employee, which had been or
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