Montgomery County, Maryland v. Peter Gang, No. 768, September Term, 2017. 

Opinion by Shaw Geter, J.

WORKERS’ COMPENSATION ACT – WORKERS’ COMPENSATION 

COMMISSION – READJUSTMENT – LIMITATION ON RETROACTIVE 

ADJUSTMENT OF RATE OF COMPENSATION

The Workers’ Compensation Commission’s broad revisory power under Maryland Code, 

Labor & Employment Article (“LE”), § 9-736(b) does not permit the Commission to 

retroactively readjust the rate of compensation of an award already paid. The revisory 

power is limited by statute to future awards where a statutory circumstance required 

under LE 9-736(a) exists, such as aggravation, diminution or termination of disability.
Circuit Court for Montgomery County

Case No. 423509V

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 768

September Term, 2017

______________________________________

MONTGOMERY COUNTY, MARYLAND

v.

PETER GANG

______________________________________

 *Eyler, Deborah S.,

Shaw Geter,

Raker, Irma, S.

 (Senior Judge, Specially Assigned), 

JJ.

______________________________________

Opinion by Shaw Geter, J.

______________________________________

Filed: November 8, 2018

*Eyler, Deborah S., J., participated in the hearing 

and conference of this case while an active 

member of this Court; she participated in the 

adoption of this opinion as a retired, specially 

assigned member of this Court.
In 2012, the Maryland Workers’ Compensation Commission awarded Peter Gang 

compensation for an injury he sustained while employed with Montgomery County. The 

rate of pay, however, was incorrectly calculated, as it failed to recognize Mr. Gang’s status 

as a “public safety officer,” which entitled him to higher compensation. Four years later 

he filed a “Request for Document Correction,” whereupon the Commission issued an 

amended award that retroactively increased his rate of pay. On judicial review, the Circuit 

Court for Montgomery County affirmed the Commission’s decision. Montgomery County 

timely appealed and presents us with the following question, which we have rephrased1: 

Did the Commission err in retroactively modifying appellee’s award of 

workers’ compensation? 

For the reasons stated below, we shall reverse the judgment of the circuit court. 

BACKGROUND

Appellee Peter Gang was a correctional officer employed by Montgomery County, 

appellant. On September 17, 2011, Gang was accidentally injured at a facility and 

thereafter filed a workers’ compensation claim. Following a hearing on April 26, 2012, 

the Workers’ Compensation Commission issued a decision on May 2, 2012, which found 

Gang suffered a permanent partial disability and awarded him compensation at the rate of 

$157 a week, for 70 weeks. 

 

1 Appellant originally presented the following question: Did the Commission and the trial 

court err in finding the Commission could modify an award even though the period for 

timely appeal or rehearing had expired and there was no allegation of a change in 

circumstance of the injury?
2

The order, however, failed to recognize his status as a “public safety officer,” under 

§ 9-628 of the Labor and Employment Article, which entitled him to a higher rate of pay. 

Both parties agree the May 2, 2012 Order was error and that Gang initially received 

compensation at the incorrect rate.2 Neither party filed a motion for rehearing3 or appeal 

to the circuit court.4 

Almost four years later, on March 22, 2016, a “Request for Document Correction” 

was filed by Gang’s counsel regarding the 2012 case.5 The request alleged that Gang was 

paid at an incorrect rate. The Commission, on March 25, 2016, issued an amended award, 

retroactively modifying his compensation to $314 a week. Appellant objected to the 

Commission’s actions because it had not been notified and filed a “Request for Rehearing” 

on April 6, 2016. Appellee then filed a request, on April 13, asking that the Commission 

“withdraw the Document Correction filed on 3/22/16, strike the Order issued on 3/25/16 

 

2 Appellee concedes that, since then, the County has paid him the full amount of 

compensation he was entitled to. 

3

“Within 15 days after the date of a decision by the Commission, a party may file with 

the Commission a written motion for a rehearing.” Md. Code Ann., Lab. & Empl. § 9-

726(a) (West 2018). 

4 An employee “aggrieved by a decision of the Commission...may appeal from the 

decision of the Commission provided the appeal is filed within 30 days...by filing a 

petition for judicial review[.]” Md. Code Ann., Lab. & Empl. § 9-737 (West 2018).

5 Counsel for appellee first filed a Request for Document Correction with the incorrect 

rate of pay for a public safety officer at the time of Gang’s injury. Six minutes later, counsel 

filed a second Request for Document Correction with the correct figure. 
3

and set this case in for hearing on the issue of the correct weekly permanent partial 

disability rate in the 5/2/12 Order.” 

The Commission denied the County’s “Request for Rehearing.” The County then 

filed a second “Request for Rehearing” on April 21, 2016, and argued that in light of 

appellee’s withdrawal of his initial Document Correction, the Commission should “rescind 

the order dated 3/25/16 that implemented that document correction and the denial of the 

rehearing request dated April 19, 2016.” 

Following a hearing on June 27, 2016, the Commission issued an order that affirmed 

the March 25, 2016 Order, finding it was a proper use of the Commission’s “continuing 

jurisdiction” under Labor and Employment Section 9-736(b) of the Maryland Code. 

Appellant filed a petition for an on the record judicial review in the Circuit Court 

for Montgomery County, on July 26, 2016,6and appellee filed a cross-appeal for a de novo 

review on August 9. Appellee also filed a Motion to Dismiss the Petition for Judicial 

Review on October 18, 2016, which was opposed by appellant and denied by the court at 

a hearing on December 13, 2016. An on the record review of the Commission’s findings 

was held on April 19, 2017, where counsel presented argument. The circuit court affirmed 

the decision of the Commission, memorialized in an order entered May 25, 2017. 

Appellant then brought this timely appeal. 

 

6 The initial petition did not state whether it was an on the record or de novo appeal. 

However, appellant filed an amended petition on October 31, 2016 confirming it was a 

petition for an on the record review. 
4

STANDARD OF REVIEW

With an “appeal on the record of the Commission...no new evidence is taken nor is 

any fresh fact-finding engaged in. The determination of whether the decision of the 

Commission was free from error will entail only an examination of the record of the 

proceedings before the Commission.” Simmons v. Comfort Suites Hotel, 185 Md. App. 

203, 224–25 (2009) (internal citation and quotation omitted). The reviewing court is 

“limited to determining if there is substantial evidence in the record as a whole to support 

the agency’s findings and conclusions, and to determine if the administrative decision is 

premised upon an erroneous conclusion of law.” W.M. Schlosser Co. v. Uninsured 

Employers’ Fund, 414 Md. 195, 204 (2010) (internal citation and quotation omitted). We 

examine the agency’s decision “in the light most favorable to it” and “the agency’s decision 

is prima facie correct and presumed valid.” Id. at 205 (internal citation and quotation 

omitted). While an administrative agency’s interpretation of a statute should “ordinarily 

be given considerable weight by reviewing courts,” id., “[m]istaken interpretation of law, 

however honestly arrived at, are held not to be within the exercise of sound administrative 

discretion.” Subsequent Injury Fund v. Baker, 40 Md. App. 339, 343 (1978) (internal 

citation and quotation omitted). 

ANALYSIS

When interpreting the language of a statute, the primary goal is to “ascertain and 

effectuate the intent of the Legislature.” Walzer v. Osborne, 395 Md. 563, 571 (2006) 

(internal citation and quotation omitted). We first look to the statute’s plain language, 
5

“giving it its natural and ordinary meaning” and “[w]e neither add nor delete words to a 

clear and unambiguous statute to give it a meaning not reflected by the words.” Id. at 571–

72 (internal citation and quotation omitted). If the statutory provisions are “clear and 

unambiguous and express a plain meaning, we will give effect to the statute as it is written.” 

Md. Div. of Labor and Indus. v. Triangle Gen. Contractors, Inc., 366 Md. 407, 420 (2001) 

(internal citation and quotations omitted). In such circumstances, “no construction or 

clarification is needed or permitted, it being the rule that a plainly worded statute must be 

construed without forced or subtle interpretations designed to extend or limit the scope of 

its operation.” Id. at 420–21 (citing Giant Food, Inc. v. Dept. of Labor, 356 Md. 180, 189 

(1999) (internal quotations omitted)). 

Section 9-736 of the Labor and Employment Article addresses the Workers’ 

Compensation Commission’s revisory power and states: 

(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.
6

(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 latter of:

(i) the date of the accident;

(ii) the date of disablement; or

(iii) the last compensation payment.

Appellant argues the Commission’s retroactive award was in violation of its 

authority, relying on the language of the statute and the Court of Appeal’s decision in Sealy 

Furniture of Maryland v. Miller, 356 Md. 462 (1999). Appellee, on the other hand, argues 

the modification was properly within the Commission’s broad revisory power and, in 

support of his position, cites Subsequent Injury Fund v. Baker, 40 Md. App. 339 (1978) 

and Waters v. Pleasant Manor Nursing Home, 127 Md. App. 587 (1999). He claims the 

Commission “did not change a past rate of compensation,” but rather “merely corrected a 

clerical mistake in the original Order.” 

In Sealy Furniture of Maryland v. Miller, the Court of Appeals addressed the limits 

of the Commission’s revisory power. There, the Commission ordered Employer to pay 

permanent partial disability benefits and granted Employer’s request for a credit 

reimbursing them for six months of mistaken payments to Employee, “the effect of which 

was to excuse any further payments.”7 Sealy Furniture of Maryland, 356 Md. at 465. 

 

7

 The total amount of the credits granted outweighed the total amount of disability benefits 

that the jury awarded Miller.
7

On review, the Court of Appeals concluded the Commission did not have the 

authority to credit the overpayment against a new award. Id. at 467–68. “[A]lthough the 

revisory power of the Commission under § 9-736 is broad, it is not unlimited.” Id. at 468. 

Further, “(the) Commission may not disregard other legislative directives, Jung v. 

Southland Corp., 351 Md. 165 [] (1998), or, indeed, the construction of the workers’ 

compensation law by this Court.” Id. The Court then stated that “if [overpayments are] to 

be corrected by allowing a recovery, either directly or in the form of a credit against another 

award, the Legislature will have to provide that correction.”8 Id. at 470 (emphasis added). 

In Subsequent Injury Fund v. Baker, employee Baker was injured in the course of 

his employment and, while in the hospital, discovered he had a form of bone cancer that 

predated the injury. Baker, 40 Md. App. at 340. As a result of the pre-existing condition, 

the Subsequent Injury Fund (SIF)9 was impleaded. At a hearing, the Commission found 

 

8

In 2000, the Maryland General Assembly passed a statute authorizing the Commission 

to order an offset or credit against an award for permanent partial disability for any 

vocational rehabilitation or temporary total disability benefits previously paid to a covered 

employee. 2000 Md. Laws 230.

9 SIF is a state agency created to provide additional compensation to Workers’ 

Compensation claimants that suffer from pre-existing injuries or disabilities that predate 

their work-related injuries, as well as ease the burden of employers. “[I]f an employee, 

already having a permanent impairment, suffers a subsequent occupational injury that 

results in a permanent disability that is substantially greater, due to the combined effect of 

the previous impairment and the subsequent injury, than it would have been from the 

subsequent injury alone, the employer is liable only for the compensation payable for the 

subsequent injury.” Schaffer v. Subsequent Injury Fund, 207 Md. App. 255, 256–57 (2012) 

(quoting Carey v. Chessie Computer Servs., Inc., 369 Md. 741, 743–44 (2002)). “[T]he 

employer pays for the second injury and the Fund pays for ‘the balance of the total award.’” 

Id. (quoting Subsequent Injury Fund v. Teneyck, 317 Md. 626, 636 (1989). 
8

Baker was “permanently and totally disabled” and awarded him $45,000 in benefits, with 

the employer ordered to pay $6,667 and SIF ordered to pay the remainder. SIF did not 

appeal the decision, although Baker’s employer-insurer did. Id.

On appeal, the circuit court, in light of a case decided after the Commission’s initial 

decision,10 remanded. SIF filed additional issues and requested the Commission modify 

its prior award against SIF based on Subsequent Injury Fund v. Thomas, 275 Md. 628 

(1975).11 The Commission found Thomas applicable and, as such, reversed its judgment 

against SIF. 

Baker petitioned for judicial review in the circuit court and the court reinstated the 

judgment against SIF, reasoning that “the Fund did not appeal the original order...that 

order was res judicata and the Commission exceeded its authority on remand by reopening 

the case.” Baker, 40 Md. App. at 341. This Court disagreed, holding it was within the 

Commission’s broad reopening powers to reconsider its award against SIF in light of 

Thomas, a recent development in the case law, and that the Commission may “within the 

period for which compensation is allowed change or revoke any order on the ground of 

mistake of law.” Id. at 347–48 (internal citation and quotation omitted). 

 

10 Gillespie v. R & J Construction Co., 275 Md. 454 (1975) held that the Commission 

cannot award a greater award for the loss of an eye than the highest medical rating found 

by the Commission. In Baker’s case, the highest medical rating was 20% loss of use of the 

arm, whereas the Commission awarded Baker 40% loss of use of the hand.

11 “In essence,” Thomas held “that the Fund is not liable for a disability caused by the 

deterioration of a pre-existing impairment which arises after a subsequent compensable 

injury and is neither aggravated nor accelerated by the subsequent compensable injury.” 

Baker, 40 Md. App. at 341 (citing Thomas, 275 Md. at 634–35).
9

Similarly, the Waters Court affirmed the Commission’s use of continuing 

jurisdiction under L.E. § 9-736 to consider a mistake of law. 127 Md. App. 587 (1999). 

There, a law was enacted eliminating a $45,000 cap on compensation for permanent total 

disability. Id. at 592. The petitioner was injured before the enactment, but found 

permanently and totally disabled after the law passed. Id. The “salient issue,” thus, was 

whether “the amount of [a] claimant’s permanent total disability compensation [is] 

established by the law in effect when claimant was injured or when claimant became 

permanently totally disabled.” Id. We held that the Commission properly exercised 

jurisdiction under 9-736(b) in deciding such a question of law. Id. at 590–92. 

In the case at bar, the Commission did not re-evaluate or modify an award based on 

a legal mistake in light of case law, as in Baker, nor order an indefinite resumption of 

payments based on a statutory revision, as in Waters. Furthermore both cases involved 

future awards of compensation, not retroactive ones. As such, their holdings are not 

applicable. 

To be sure, the Worker’s Compensation Act is a “comprehensive scheme for 

compensation to employees of applicable employers for accidental job related injuries.” 

Continental Cas. Co. v. Mirabile, 52 Md. App. 387, 395 (1982). Section 9-736 is part of 

that larger statutory scheme. In interpreting comprehensive statutory schemes, “the 

legislative intention is not determined from (a) statute alone, rather it is to be discerned by 

considering it in light of the statutory scheme.” Jung v. Southland Corp., 351 Md. 165, 

177 (1998) (internal citation and quotation omitted). “Nor should (a) statute be read so as 
10

to render another statute in that statutory scheme, or any portion of it, meaningless, 

surplusage, superfluous, or nugatory.” Id. 

It is undisputed that the Commission readjusted the rate of compensation of 

appellant’s award, where no statutory circumstances, such as aggravation or diminution, 

were averred or discovered and ordered additional compensation for a past award. No 

language in § 9-736 expressly authorizes such a change or readjustment of an award already 

paid. Nevertheless, appellee contends the Commission’s actions under § 9-736(b) are not 

restricted by § 9-736(a). We disagree, as such an interpretation would render § 9-736(a), 

which limits rate adjustments to future application only and requires a change of condition, 

meaningless. As stated by the Court in Sealy, the Commission’s revisory power is “not 

unlimited.” In light of longstanding principles of statutory interpretation and the lack of 

plain language, we decline to infer a legislative intent not specified in the statute and, thus, 

hold the Commission erred. 

We disagree with appellee’s characterization of the Commission’s actions as merely 

“correcting a clerical error.” The record does not substantiate this assertion and further, the 

Commission’s action in 2012 constituted a final award. No action was taken by appellee to 

appeal or have the Commission reconsider its decision. Thus, under the circumstances of 

this case, four years after the final award, the Commission’s authority was limited to 

readjustment of a future rate of compensation upon a worsening or diminution of condition. 

Appellant argues that appellee’s filing of a “Request for Document Correction” was 

improper because that form “can only be used when the parties agree that a Commission 
11

form needs to be corrected” and the County was not notified about the filing in the present 

case. Thus, they did not consent. Appellee admits he failed to adhere to COMAR 

14.09.03.13(a), which states “[a] party seeking modification of a prior finding or order shall 

file the form captioned Motion for Modification and simultaneously file an Issues form 

identifying the issue to be resolved.” He concedes that he did not file a “Motion for 

Modification” form and the County did not give its consent. He argues that “[w]hen justice 

so requires, the Commission may waive strict compliance with these regulations.” 

COMAR 14.09.01.06. The record in this case, however, is devoid of any indication that 

the Commission waived strict compliance. We hold that even if it did waive strict 

compliance, the Commission did not have the statutory authority to modify or readjust the 

award retroactively. 

Finally, appellant argues the Commission’s ruling was erroneous because “it 

extended the statute of limitations for another five years.” Appellee avers the Commission 

“did not circumvent the statute of limitations” because he filed for a modification within 

five years of his last payment. We agree with appellant. The Commission’s actions 

impermissibly extended the five-year time limit, and thus, exceeded its statutory authority. 

See Seal v. Giant Food, Inc., 116 Md. App. 87, 96 (1997).

JUDGMENT OF THE CIRCUIT COURT FOR 

MONTGOMERY COUNTY REVERSED AND 

REMANDED TO THAT COURT. THE 

CIRCUIT COURT IS DIRECTED TO ENTER 

AN ORDER REMANDING TO THE 

WORKERS’ COMPENSATION COMMISSION 

TO STRIKE ITS 3/25/16 AWARD. COSTS TO 

BE PAID BY APPELLEE.