Kelly v. Consolidated Delivery Co.12/6/2005
Hollander, Eyler, Deborah S., Woodward, JJ.
William W. Kelly, the appellant, challenges a judgment by the Circuit Court for Baltimore County affirming a decision by the Workers' Compensation Commission ("Commission") denying him benefits for permanent partial disability to his right shoulder. His employer, Consolidated Delivery Co. ("Consolidated"), and its insurer, the Injured Workers' Insurance Fund ("IWIF"), were the opposing parties before the Commission and the circuit court and are the appellees in this Court.
Kelly poses one question on review: "Is entitled to pursue his claim for permanent partial disability benefits?" For the following reasons, we answer that question "Yes." Therefore, we shall reverse the judgment of the circuit court and remand the case with instructions to reverse the decision of the Commission and remand to the Commission for proceedings consistent with this opinion.
FACTS AND PROCEEDINGS
Kelly was employed by Consolidated as a delivery truck driver. On March 29, 2002, while in the course of his employment, he fell and sustained an accidental injury to his right shoulder.
On April 10, 2002, Kelly filed a claim with the Commission. Consolidated and IWIF did not contest it and began paying temporary total disability benefits on April 15, 2002. On May 8, 2002, the Commission passed an order awarding Kelly temporary total disability benefits.
On July 29, 2002, Kelly underwent surgery on his right shoulder. He continued to receive temporary total disability benefits until February 5, 2003.
On February 4, 2003, IWIF discovered that Kelly had started working for another employer on July 8, 2002, and had failed to report that employment to IWIF or to the Commission, as required.
On February 13, 2003, IWIF filed an application for statement of charges against Kelly in the District Court of Maryland for Baltimore County. Kelly was charged with one count of theft over $500, under Md. Code (2002), section 7-104 of the Criminal Law Article ("CL"), and one count of making a false claim under Md. Code (1991, 1999 Repl. Vol.), section 9-1106(a) of the Labor and Employment Article ("LE"). That entire statute states:
(a) Prohibited act. -- A person may not knowingly affect or knowingly attempt to affect the payment of compensation, fees, or expenses under [the Workers' Compensation] title by means of a fraudulent representation.
(b) Penalties. -- A person who violates this section, on conviction:
(1)is subject to the penalties under Article 27, ยง 342 of the Code; and
(2) may not receive compensation, fees, or expenses under [the Workers' Compensation] title.
Article 27, section 342 is the predecessor theft statute to CL section 7-104.
On May 20, 2003, Kelly appeared for trial and proceeded on a not guilty agreed statement of facts. The prosecutor read into the record the following statement of facts (which we have divided into paragraphs):
etween the dates of July 8th, 2002 through February 5th, 2003, at IWIF . . ., [Kelly] received temporary total disability benefits, which he was not entitled. The amount he was not entitled to collect was $8,432. On March 29th, 2002, [Kelly] sustained a work-related injury while he was employed as a delivery driver. . . . As a result . . . a claim was filed with [IWIF] for injuries sustained to his right shoulder. All appropriate medical and indemnity benefits were provided by IWIF. [Kelly's] weekly temporary total benefit was $272. He received this benefit due to the claim that he was physically unable to work.
[Kelly] received temporary
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