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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2588 September Term, 2004

WILLIAM W. KELLY v. CONSOLIDATED DELIVERY CO., ET.AL.

Hollander, Eyler, Deborah S., Woodward, JJ. Opinion by Eyler, Deborah S., J.

Filed: December 6, 2005

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 [he] entitled to For

pursue his claim for permanent partial disability benefits?" 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. Commission passed an order awarding On May 8, 2002, the temporary total

Kelly

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,

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