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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1772 September Term, 2002 ______________________________ WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY v. KENNETH D. HEWITT

Eyler, Deborah S., Sharer, Alpert, Paul E. (Retired, Specially JJ.

Assigned)

Opinion by Sharer, J.

Filed: October 31, 2003

In this appeal, we are called upon to construe the language of a Workers' Compensation Commission rule governing the payment of approved fees to attorneys for successful claimants. Appellant,

Washington Metropolitan Area Transit Authority ("WMATA"), noted an appeal from an order entered by the Maryland Workers' Compensation Commission ("the Commission") awarding a penalty, as a sanction for the late payment of attorney's fees, to counsel for Kenneth D. Hewitt, appellee. the The entitlement to fees arose from an order of

Commission of May 25, 2001, ordering benefits to be paid to

appellee as a result of a compensable injury. Because neither party sought judicial review of the as

Commission's order, the provisions of the Commission's rules, promulgated in the Code of Maryland Regulations

("COMAR")

14.09.01.24A(4),1 came into play. Appellant issued a check for attorney's fees sixteen days after the time for appeal expired, which appellee deemed to be late and in violation of the Commission rule. As a result, appellee's counsel requested that the

Commission assess late payment penalties.
1

COMAR 14.09.01.24A(4)provides in pertinent part: An award by the Commission approving an attorney's fee under this regulation shall be notice to the party responsible for payment to reserve in escrow the amount of fee approved. That party shall remit the approved fee to the attorney immediately after the expiration of the 30-day appeal period if an appeal is not filed. If an appeal is timely filed, the party responsible for payment shall continue to reserve in escrow the amount of the fee approved by the Commission pending final determination of the appeal. If the parties agree that an appeal will not be filed, the fee may be remitted to the attorney before expiration of the 30-day period.

Following a hearing before the Commission on September 24, 2001, WMATA was assessed a fine in the amount of 20% of the fee awarded by the Commission. WMATA sought judicial review of that Appellee A motions

order in the Circuit Court for Prince George's County. responded by filing a motion for summary judgment.

hearing was held on August 23, 2002, at the conclusion of which the court granted summary judgment in favor of appellee and remanded the matter to the Commission for issuance of an Order affirming its September 24, 2001 Order. court on September 23, 2002. WMATA presents two questions for review, as recast: I. Whether as a matter of law WMATA is entitled to fifteen (15) days following the expiration of the appeal period of a Maryland workers' compensation award of benefits to make timely payment of attorneys fees? Whether the Commission erred in awarding sanctions where the employer established good cause for the delay in payment and the claimant suffered no prejudice by reason of the payments? WMATA noted a timely appeal to this

II.

We answer both questions in the negative, and shall affirm. FACTUAL and PROCEDURAL HISTORY On August 13, 1998, appellee sustained an injury arising out of, and in the course of, his employment with WMATA. Appellee

filed a workers' compensation claim and a hearing was held on May 18, 2001, before the Commission. The Commission issued its Order

on May 25, 2001, awarding appellee both temporary total disability -2-

and permanent partial disability.

Additionally, the Commission

awarded appellee's counsel attorney's fees in the amount of $3,365, plus $96.92 in advanced costs, to be paid out of the final weeks of appellee's compensation.2 When the time in which to seek judicial review of the

Commission's order expired on June 25, 2001, neither party had filed a notice of judicial review. The checks satisfying the Commission's order for attorney's fees were issued and mailed on July 10, 2001, and received by appellee's counsel on July 11, 2001. As a result of the delay, appellee filed issues with the Commission requesting a hearing on whether a penalty for late payments of attorney's fees should be assessed against WMATA. On September 20, 2001, the Commission held a hearing on the issue of late payment of attorney's fees. attorney's expiration fees of should the have been paid as Appellee argued that immediately required after by the

appeal

period,

COMAR

14.09.01.24A(4).

At the hearing, the Commissioner inquired into

the exact date the check for fees was paid: THE COMMISSION: When was the check paid? * * * [APPELLANT'S ATTORNEY]: It got sent about sixteen days after the date of the appeal period expiring.

2

The Commission also awarded medical expenses in the amount of $220.

-3-

THE COMMISSION: mailing?

What

was

the

date

of

the

[APPELLANT'S ATTORNEY]: July 10th. We received it on July 11th. The checks were cut and mailed July 10th, which is forty-six days after the order. [APPELLANT'S ATTORNEY]: No dispute about that, Your Honor. Sixteen days after it became due as under the regs. [sic], and that's when we issued the check. We think that's reasonable. The Commission issued an Order on September 24, 2001, finding that WMATA had failed to pay the Order of May 25, 2001, in a timely manner pursuant to COMAR 14.09.01.24A(4). legal fee awarded was assessed as a A fine of 20% of the

penalty, in accordance with

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