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Public safety officer paid at wrong Work Comp rate loses appeal

On Behalf of | Aug 17, 2018 | Workers' Compensation

At our law firm, we advise injured workers throughout Maryland on Workers’ Compensation issues. A new unreported case from the Court of Special Appeals of Maryland illustrates the complexity of the state Workers’ Compensation Act and the importance of having an experienced lawyer involved at all stages of a claim, if possible. 

The appeals court issued its opinion in Montgomery County, Maryland v. Peter Gang on August 9. (Available on Westlaw at 2018 WL 3801772.) In 2011, Gang received an accidental injury during his work as a correctional officer for the county. In 2012, the Maryland Workers’ Compensation Commission after a hearing awarded Gang 70 weeks of benefits at $157 per week for permanent partial disability.


The parties agree that this rate was wrong because Gang should have received the higher rate of a public safety officer. Notably, no one at that time asked for rehearing or appealed the mistake to court. Instead, Gang accepted benefits at the wrong rate and four years later, he filed a “Request for Document Correction.” 

After the parties attempted some complicated procedural maneuvers, the Commission retroactively amended the original award to the rate of $314 per week, not based on the claimant’s request for a document correction, but instead on its “continuing jurisdiction” under the law. The Circuit Court for Montgomery County affirmed this decision, which the Court of Special Appeals then reversed in the unreported opinion. 

Claimant missed the proper remedy 

In essence, the court said that the claimant should have asked for reconsideration or filed an appeal within the time allowed when the Commission issued the 2012 decision with the incorrect rate. The claimant also did not follow correct procedures in trying to request a later modification. 

The court looked at the scope of the Commission’s power to revise earlier actions, concluding that no other bases would allow the Commission to fix the mistake at this late date: 

  • The Commission did not modify the award “based on a legal mistake in light of case law.”
  • The Commission was not acting because of a “statutory revision.”
  • The Commission may have been able to correct the rate in a future award, but not a retroactive one.
  • The law would let the Commission adjust a mistaken rate in appropriate cases for future benefits paid if disability had increased or decreased since the original award.
  • The Commission was not just “correcting a clerical error.” The award was final in 2012.
  • The claimant apparently should have filed a different form and gotten employer consent for a modification request.
  • The Commission’s late correction of the rate “impermissibly extended the five-year time limit … exceed[ing] its statutory authority.”  

The court concluded that the Commission’s power to fix mistakes in awards is “not unlimited,” and that no state law allowed what it had done, unfortunately for this claimant. Everyone agreed that a mistake had been made, but it was too late. 

It is not clear from the opinion whether Gang had a lawyer at the time of the original decision. We also do not know if it occurred to him to question whether the rate was incorrect back then. Still, this opinion shows the importance of having legal counsel on board as early as possible. An attorney can review not only decisions that deny claims, but also successful decisions to see if the terms are correctly calculated. If not, the claimant can file an appeal or request for rehearing before any deadlines pass.

  • AABA