Case Update: Court of Special Appeals Holds that Obtaining a Medical Evaluation of Permanent Impairment Is Not a Prerequisite Prior to Filing a Request for Modification pursuant to LE §9-736 for Limitations Purposes

In Montgomery County v. Rios, the Claimant was a police officer for Montgomery County who injured his left shoulder while trying to subdue a suspect. In May 20, 2009 Order, the Commission found his injuries compensable. He received a Supplemental Award of Compensation on September 24, 2012 and received the last payment on October 8, 2012.

Officer Rios filed a Request for Modification with the Commission alleging an increase in permanent disability less than one month before the expiration of the statute of limitations. He had not yet obtained a medical evaluation for permanent impairment at the time of his filing. He obtained a medical evaluation after the statute of limitations had expired.

Hearing was held in December 2017, where Montgomery County asserted Officer Rios's claim was barred by the statute of limitations because the medical evaluation for permanent impairment was not completed until after the five-year statute of limitations had run. The Commission awarded Officer Rios the modification. The Circuit Court affirmed the Commission's decision. Montgomery County timely appealed to the Court of Special Appeals.

The parties agreed that under LE §9-736(b)(3), the statute of limitations period for Officer Rios to file a request for modification ended on October 8, 2017 and Officer Rios's request for modification was filed within limitations. The County argued, however, that his filing failed to toll the statute of limitations because he did not have a written evaluation of permanent impairment as required by COMAR.

The Court of Special Appeals affirmed, relying on the decision of the Court of Appeals in Gang v. Montgomery Cty., 464 Md. 270 (2019). The Court of Special Appeals held that COMAR's requirement of obtaining a written medical evaluation prior to filing is not a prerequisite of LE §9-736(b)(3) for limitations purposes. The only requirement in the statute is that the modification of the award be "applied for" within the limitations period. From both of these decisions, the Courts have made clear that they will not engraft COMAR regulations onto LE §9-736(b)'s limitations provisions.

A copy of the Opinion can be found at:

https://www.courts.state.md.us/data/opinions/cosa/2020/2642s18.pdf