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The Defense Line: A Publication From The Maryland Defense Counsel, Inc.

Expressio Unius is Moot: Commission Jurisdiction on Appeal Expanded by the Courts

Wendy B. KarpelWendy B. Karpel
Expressio Unius is the rule that to express or include one thing implies the exclusion of the others. For example, if one were to say “all citizens have the right to vote,” under the maxim of expressio unius that would mean that non-citizens cannot vote. The Court of Special Appeals in the case of Sanchez v. Potomac Abatement, Nos. 569 & 504 (Ct. of Spec. App. Apr. 27, 2011) rejects the maxim of expressio unius as it applies to interpreting LE §9-742. This section of the Workers’ Compensation Act states that the Maryland Workers’ Compensation Commission (“Commission”) retains jurisdiction in two instances when a matter is on appeal: continuing temporary total disability that was awarded by the Commission in the appealed order and medical treatment. The Sanchez Court held that this list is not exhaustive. Rather, the general “continuing powers” granted to the Commission under LE §9-736(b) gives the Commission discretion to hear cases on any issue that is brought before the Commission during the period the matter is on appeal as long as the new issue is independent of the issue on appeal.


In September of 1998, Mr. Sanchez suffered a job related injury. He received a worsening of his permanent partial disability award in August of 2006. Dissatisfied with how the award was calculated, Mr. Sanchez appealed the matter to the circuit court and the case was eventually decided by the Court of Appeals in 2010.

During the period that the matter was on appeal, Mr. Sanchez filed new issues with the Commission for a closed period of temporary total disability and vocational rehabilitation benefits. The Commission declined to exercise jurisdiction in both instances because the matter was on appeal and neither of the issues filed are listed in LE §9-742. LE §9-742 states that the Commission retains jurisdiction on appeal over a request for additional medical treatment and a request for temporary total disability benefits if the temporary total disability benefits were granted in the order on appeal and were terminated by the employer/insurer without an order of court. Since neither the issues filed by Mr. Sanchez (a closed period of temporary total disability or vocational rehabilitation) are listed in LE §9-742, the Commission declined to exercise jurisdiction over the matter while the original issue involving calculation of benefits were on appeal.

Dissatisfied with the Commission’s failure to exercise jurisdiction over issues allegedly independent from the matter on appeal, Mr. Sanchez filed another appeal regarding the failure of the Commission to exercise jurisdiction over the temporary total disability and vocational rehabilitation issues. The Circuit Court for Baltimore County affirmed the Commission’s decision. Mr. Sanchez appealed this decision to the Court of Special Appeals. In the meantime, the original appeal involving how permanent partial disability benefits were to be calculated had been resolved by a decision of the Court of Appeals in the employer/insurer’s favor. As such, the Commission now would take jurisdiction over Mr. Sanchez’s issues of vocational rehabilitation and temporary total disability. The appeal pending in the Court of Special Appeals was arguably moot.

Resolution of the Issues

The two issues on appeal were whether the appeal was moot and whether the Commission had jurisdiction to hear issues not specifically mentioned in LE §9-742 while a claim is on appeal. The Court found that while the appeal was moot, the Court could express its opinions on the jurisdictional issue because it implicates the “public interest.” On the jurisdictional issue, the Court found that LE §9-742 is not an exhaustive list of what issues the Commission retains jurisdiction over while a matter is on appeal.

By the time Mr. Sanchez’s appeal reached the Court of Special Appeals on the issue of whether the Commission had jurisdiction to hear his issues while he had another issue in the same claim on appeal, the first appeal had been resolved. As such, any impediment perceived or otherwise to the Commission hearing his supplemental issues were removed. Since the Commission would now hear the temporary total and vocational rehabilitation issues, there was no controversy for which the Court of Special Appeals could grant relief. When a matter is moot like this one, the Court of Special Appeals cannot review the case. However, there are two offshoots to this rule that allows the Court to express its views on a moot case without deciding the case: the issue is capable of repetition but evading review and/or the case implicates the public interest.

Wishing to express its views on whether LE §9-742 provided an exhaustive list of when the Commission had jurisdiction on supplemental issues while a matter is on appeal, the Court of Special appeals opined that the “public interest offshoot to the mootness doctrine” applied to the Sanchez case. This doctrine states that if the public interest will be harmed if the question is not immediately decided, the Court is justified in reviewing a moot issue. In this case, the Court reasoned that the public interest would be hurt if Mr. Sanchez’s question was not immediately decided because the Workers’ Compensation Act is remedial legislation. The issue involved in this appeal affected both injured workers’ rights to prompt compensation for their injuries and the efficient operation of the Commission and the courts. For these reasons, while the matter is moot and is dismissed, the Court of Appeals would express its views on the issue of law presented but not the exact issue raised by the parties.

In reviewing the issue of jurisdiction, the Sanchez Court stated that jurisdiction pending appeal is not limited to those matters listed in LE §9-742 (additional medical treatment and continuing temporary total disability payments). Rather, there is a broader statute, LE §9-736(b), that allows the Commission to take continuing jurisdiction over any matter that is “independent and distinct from the issue on appeal.” (Slip Opinion p. 17). The existence of this broader statute and the lack of any exclusivity language in §9-742 led the Court to reject the expressio unius rule of statutory construction in this case. Instead of finding that the specific instances of jurisdiction granted in LE §9-742 overruled the general “continuing powers of the Commission” language in LE §9-736(b), the Court found that the Commission has mandatory jurisdiction over the issues listed in LE §9-742 and unfettered discretion to hear any other issue that is independent and distinct from the issue on appeal, while a claim is on appeal It did not matter that the language of LE §9-736 does not mention appeals at all.

What Comes Next

If this decision is not reversed on appeal, the Court of Special Appeals has reported “its views” on Commission jurisdiction pending appeal. While the views were expressed in a moot case, the case is a reported one. As such, the rule of law derived from this case is that the Commission has no choice but to decide issues of medical treatment and previously ordered temporary total disability benefits that were cut off during the pending appeal. However, the Commission has discretion to hear all other issues as long as the issue is “independent and distinct from the issues on appeal.”

The case that discusses when issues are ‘independent and distinct from the issues on appeal” is Pressman v. State Accident Fund, 226 Md. 406 (1967). This case dealt with an issue of whether the State Accident Fund had given proper notice of cancellation of coverage. In finding that notice was not properly given, the Court of Appeals discussed the Commission’s continuing jurisdiction on other issues while a matter is on appeal. As long as the filed issues deal with “aspects of a case that were not dealt with or embraced within a decision on the other aspects which had been appealed,” the Commission may take jurisdiction over the matters while an unrelated issue is on appeal. Id. at 415–416. The Court does not give much guidance on what is an unrelated as opposed to a related issue.

When presented with issues filed while a matter is on appeal that is not listed in LE §9-742, defense counsel may shield his/her client from its application by pointing out that jurisdiction is merely discretionary and that deciding this case would unduly prejudice the employer/insurer in the matter or that the issues or not independent from the issues on appeal. For example, the Commission makes a finding disallowing an accidental injury claim. The Claimant appeals this decision. Based on the decision in Sanchez, the Claimant could file issues for temporary total disability benefits while the matter is on appeal. The argument would be that imposition of temporary total disability would unduly prejudice the employer/insurer. The claim is denied. If the Commission’s original decision is upheld, the employer/insurer could not recover the monies ordered for temporary total disability benefits. As such, the Commission should in its discretion not decide the issue.

If the Commission decides to exercise its jurisdiction, the alternative argument is that the issue of temporary total disability is intimately connected with the issue of compensability. As such, it fails the “Pressman” test that only allows the Commission to hear issues that are “independent and distinct from the issues on appeal.” The defense would argue that until compensability is decided all issues regarding benefits must be denied. Of course, the Commission may see this issue differently and there is no case law on these issues. Even the Sanchez Court did not decide whether the issues raised by the Claimant fit within the Pressman case, because that issue was moot.

Another issue to be aware of is that if an order is issued pursuant to the jurisdiction granted the Commission under LE §9-742(b) and (c), it is deemed a “supplemental order.” As a result, it is automatically subject to review on the pending appeal. If the Commission takes jurisdiction of an issue under LE §9-736(b), there is no provision providing for the automatic review of that issue in the pending appeal. Therefore, there may be two appeals pending consecutively but separately in one claim on “distinct” issues. Any parties dissatisfied with the decision made pursuant to jurisdiction granted under LE §9-736(b) must separately appeal that order or forego any right to judicial review.

Wendy Karpel concentrates her practice in workers’ compensation litigation and heads the Montgomery County Attorney’s Office’s Workers’ Compensation Unit. She is a graduate of Haverford College and earned her law degree from Tulane University School of Law. She has lectured in on the topic of workers' compensation in many venues and is a full professor at University of Maryland University College. Wendy is a Past President of the Maryland State Women’s Bar Association. She has also been included on the Maryland Super Lawyers list and been named by the Daily Record as one of the Top 100 Women in Maryland.

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