Barnett v. Sara Lee Corp.

LERNER, Judge. The primary issue in this appeal is whether pension benefits constitute wages within the purview of the Maryland Workers’ Compensation Statute. ClaimanVappellant Frank Barnett ap ¹⁴² pealed from the decision of Judge Richard T. Rombro of the Circuit Court for Baltimore City affirming the awards issued by the Workers’ Compensation Commission (hereinafter, the “Commission”) on January 7, 1992 to him. At issue are certain workers’ compensation provisions of the Md. Labor & Employment article (1991 RepLVol.) (hereinafter, “LE,”) 1 which set out the scope of permissible evidence in “other [permanent partial disability] cases.” Appellant has worked as a truck driver through the Truck Drivers and Helpers Local Union No. 355 since May 19, 1962.

In 1975, appellant injured his left arm, for which he received an award from the Commission for a 25% permanent, partial impairment. In March, 1987, while working for appellee Sara Lee Corporation, appellant slipped while pushing a loaded food cart, reinjuring and hyperextending his left arm and tearing his left rotator cuff. In December, 1987, appellant slipped while getting out of his truck, tearing his right rotator cuff. Appellant filed for workers’ compensation benefits in both instances.

Following the surgery on the right rotator cuff, the treating physicians determined that appellant should not return to his job as a truck driver. Consequently, after his rehabilitation from his injuries, appellant was rehired by Sara Lee to work in a non-union clerical position coordinating deliveries. The record reflects that the non-union position paid slightly less than appellant’s prior job but, more significantly, the employer contribution to appellant’s pension plan was substantially lower due to the fact that the new job was non-union. ¹⁴³ On December 26, 1992, a hearing was held before the Commission. During the course of the hearing, appellant’s attorney attempted to elicit testimony from appellant regarding loss of future pension benefits as a result of his termination from the union job.

Upon Sara Lee’s timely objection to appellant’s proffered testimony regarding the pension contributions, the Commissioner excluded the evidence, explaining: But that’s not earnings. That’s not his ability to do his job. Yes, it has a financial impact on him, I agree. But that’s not the standard that we use at the Commission---- It’s not his earning power____ [M]y ruling is one based on the law, and I don’t think that is something I would include in industrial loss.

Following the hearing, the Commission passed two Awards of Compensation on January 7,1992, and thereby awarded appellant 70% permanent partial disability: 30% due to the right shoulder injury of December, 1987, for which appellee Travelers Indemnity Company of Illinois was the insurer; 35% for the March, 1987, injury to the left shoulder for which appellee Standard Fire Insurance Company was the insurer; and 5% reflecting appellant’s prior injury to his left arm. On January 28,1992, the Commission denied appellant’s Motion for Reconsideration. On February 10, 1992, appellant noted timely appeals in each case to the Circuit Court for Baltimore City, asking that court (1) to find that the Commissioner erred when it excluded the evidence of future pension benefits, and (2) to remand the cases for further hearings. Appellant simultaneously filed Motions for Summary Judgment with the circuit court, asking it to remand the case to the Commissioner with instructions to take additional testimony regarding the pension benefits.

Appellant also requested that court to reconsider, in light of the additional testimony, the Commissioner’s decision regarding the extent of appellant’s industrial loss of use. After hearing argument from all parties to the two companion cases, the trial court consolidated them and, in June, 1992, ¹⁴⁴ issued a Memorandum Opinion and Order (1) denying appellant’s Motion for Summary Judgment, and (2) entering summary judgment in favor of Sara Lee and its insurers. Judge Rombro held that the Commission properly refused to hear evidence on alleged lost future pension benefits in determining the percentage of industrial loss of use resulting from the two accidental injuries. Appellant then appealed to this Court, and, in so doing, asked us to consider the following four questions: 1.

Did appellant note a timely and proper appeal from the Commission’s decision awarding benefits for permanent partial disability? 2. Did the circuit court err when it affirmed the Commission’s ruling that pension benefits are not considered wages under workers’ compensation law, and thus are inadmissible to determine appellant’s “industrial loss of use”? 3. Even if pension benefits are not considered wages under workers’ compensation law, are they still evidence of loss of earning capacity admissible to show appellant’s “industrial use of loss”? 4. Does the Federal Employment Retirement and Income Security Act (ERISA) pre-empt state law and preclude consideration of pension benefits within the amount received under workers’ compensation law?

THE APPEAL As a preliminary matter, appellees raise two issues as to the form of appellant’s Appeal Petitions: (1) that Barnett appealed only the Commission’s denial of a Motion for Reconsideration, and did not allege an abuse of discretion by the Commission; and (2) that Barnett failed to allege any error by the Commission with respect to the award, and thus he failed to appeal the Commission’s final order. Appellant’s Petition states, in pertinent part, as follows: 1. That on January 10, 1992, the Workers’ Compensation Commission of Maryland passed an Order refusing to reconsider the decision not to consider evidence of Mr. ¹⁴⁵ Barnett’s loss of retirement income as a result of his accidental injury on March 19, 1987. 2. That the Commission misconstrued the law and the facts applicable to the case. 3.

That Mr. Barnett’s loss of retirement income should have been considered, contrary to the findings of the Commission. Although it is true that appellant’s Petition does not explicitly refer to the final award made by the Commission, it is unfounded to suggest, as the appellees do, that this is merely an interlocutory appeal from an evidentiary ruling. In the Appeal Order to the circuit court, appellant references both (1) the January 28, 1992 decision denying reconsideration, and (2) the January 7, 1992 order, in which the actual awards were made. Clearly, a final award had already been made when the appeal was noted.

There is nothing of an interlocutory nature about appellant’s appeal. See B & K Rentals v. Universal Leaf, 319 Md. 127, 133-34, 571 A.2d 1213 (1990) (The Maryland Rules do not require notice of appeal to designate the order or judgment from which appeal is taken). Moreover, we hold that appellant has implicitly alleged an abuse of discretion by the Commission; ie., appellant contends “[t]hat Mr. Barnett’s loss of retirement income should have been considered, contrary to the findings of the Commission.” In addition, we believe that appellees have suffered no prejudice because of appellant’s appeal petition, and the irregularities, if any, are mere technicalities that do not provide sufficient basis for depriving Barnett of his legal rights. Francois v. Alberti Van & Storage Co., 285 Md. 663, 667-68 , 404 A.2d 1058 (1979); Border v. Grooms, 267 Md. 100, 106-07 , 297 A.2d 81 (1972).

SUMMARY JUDGMENT Although appellant properly appealed to the circuit court the awards made by the Commission, the case actually comes to us from the entry of summary judgment against him issued by Judge Rombro. Summary judgment is properly entered ¹⁴⁶ when there is no genuine dispute as to any material fact and the party is entitled to judgment as a matter of law. Md.Rule 2-501(a). The standard for appellate review of a trial court’s grant of summary judgment is whether the trial court was legally correct, since a trial court decides issues of law, not fact, when granting summary judgment.

Heat & Power Corp. v. Air Prods. & Chems., 320 Md. 584, 590-92 , 578 A.2d 1202 (1990).. For reasons which we will discuss below, we hold that the trial court did not commit an error of law when it granted appellee’s Motion for Summary Judgment. THE PENSION BENEFITS Although appellant urges us to consider the question of the admissibility of pension benefits in the separate contexts of wages and loss of earning capacity, we will address them together as we feel neither context provides grounds in which to allow such evidence. As we have said in Hall v. Willard Sand & Gravel Co., 60 Md.App. 260 , 482 A.2d 159 (1984), a trier of fact may take into account the amount of wages the claimant earned before and after the injury in order to