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Sealy Furniture of Maryland, et al. v. Brenda Miller No. 36, Sept. Term, 1999 Workers' Compensation: Commission has no authority to set off overpayment of temporary total disability payments against subsequent award of permanent partial disability award.

Circuit Court for Wicomico County Case No. 97CV0050
IN THE COURT OF APPEALS OF MARYLAND

No. 36 September Term, 1999 ______________________________________

SEALY FURNITURE OF MARYLAND, et al. v.

BRENDA MILLER

______________________________________ Bell, C.J. Eldridge Rodowsky Raker Wilner Cathell Bloom, Theodore G. (retired, specially assigned), JJ. ______________________________________ Opinion by Wilner, J. ______________________________________ Filed: November 10, 1999

Apparently through oversight, an employer continued to make temporary total disability payments to a workers' compensation claimant after the employer became aware that the claimant had reached maximum medical improvement and was therefore no longer eligible for those payments. It sought to recover the overpayment through a credit against permanent partial disability benefits subsequently awarded to the claimant. This appeal presents the single issue of whether the Workers' Compensation Commission is authorized to order such a credit. We shall hold that it does not have that authority.

BACKGROUND In April, 1989, respondent, Brenda Miller, filed a workers' compensation claim, alleging that her right hand had become swollen from pulling fabric while employed with petitioner, Sealy Furniture of Maryland. In an order entered a month later, the Workers' Compensation Commission found that Ms. Miller had sustained an accidental injury arising out of her employment and directed Sealy to pay temporary total disability benefits from and after January 12, 1989, the date of disablement.1 In June, 1990, it was agreed that Ms. Miller was unable to continue her regular employment and the parties developed a vocational rehabilitation plan. On July 10, 1990, the Commission approved the stipulated rehabilitation plan and ordered Sealy to pay temporary total disability benefits of $273/week "during the

The parties agree that the reference to accidental injury is a mistake. Ms. Miller claimed an occupational disease -- carpal tunnel syndrome.

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continuance of claimant's period of vocational rehabilitation."2 After a number of unsuccessful attempts to obtain employment, Ms. Miller, with the consent of the rehabilitation counselor, decided to become a day care provider for children two years old or older. To that end, various modifications were made to her home, and she applied for a license from the Department of Human Resources. In June, 1994, she received what she claimed was a provisional license contingent upon completion of a fingerprint check by the Maryland State Police, a check that she said was not completed until some time in 1995. The record reveals, however, that in August, 1994, she received a certificate from the Department's Child Care Administration stating that she was registered to operate a family child care home to care for children from ages two to seven for a two-year period commencing August 30, 1994. Although the certificate was conditioned on continued compliance with applicable departmental regulations, it said nothing about any further State Police investigation. In any event, Ms. Miller never commenced a day care operation and never obtained other suitable employment. She said that she was unable to find children to watch. On August 11, 1994, the parties were notified that vocational rehabilitation services had been terminated. On August 25, Sealy had Ms. Miller evaluated and concluded that she had reached maximum medical improvement. Nonetheless, for reasons which are

Maryland Code Lab. & Empl.,

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