Blevins v. Baltimore County

WILNER, Judge. These two cases, which we consolidated for argument, involve the construction of Maryland Code, § 9-610(a) of the Labor and Employment Article, which is part of the Workers’ Compensation Law. That section provides, in relevant part, that if a law, regulation, or policy provides “a benefit to a covered employee of a governmental unit .;. that is subject to this title ... payment of the benefit by the employer satisfies, to the extent of the payment, the liability of the employer ... for payment of benefits under the title.” If the alternative benefit equals or exceeds the workers’ compensation benefit otherwise payable, the set-off is complete, and the employer’s obligation to pay the workers’ compensation benefit is fully discharged. If the workers’ compensation benefit exceeds the ⁶²³ alternative benefit, the employer must pay the difference, as determined by the Workers’ Compensation Commission.

In Blevins, the issue is whether the set-off applies to workers’ compensation benefits awarded after a county employee retired and began receiving disability retirement benefits pursuant to the county’s employee retirement plan but for a period preceding the effective date of the employee’s retirement. In Wills, the substantive issue is whether the set-off applies with respect to ordinary retirement benefits, as opposed to disability retirement benefits, paid to a county employee following her retirement. Wills presents a procedural issue as well. In each case, the Court of Special Appeals concluded that the set-off applied.

Wills v. Baltimore County, 120 Md.App. 281 , 707 A.2d 108 (1998). We disagree and shall reverse. Blevins Jerry Blevins was a colonel in the Baltimore County Police Department. On January 21,1994, he suffered a work-related accidental injury when he fell on a patch of ice on the police headquarters parking lot.

Though sustaining injuries to his neck, back, and shoulder, he continued to work full time in his administrative position and encountered no wage loss. At some point, he applied for accidental disability retirement benefits from the county employees’ retirement system. His application was approved, and, effective November 16, 1995, he retired and began receiving the disability retirement benefits. Subsequent to his retirement, Colonel Blevins filed for workers’ compensation benefits.

In an order entered on February 23, 1996, the Workers’ Compensation Commission declined to award any benefits for temporary total disability, on the ground that there was “[n]o compensable lost time,” but it did award permanent partial disability benefits, based on a 20% industrial loss of use of the body by reason of the neck and back injuries, in the amount of $170 per week. The Commission’s order specified that the weekly benefit be paid ⁶²⁴ for the period of January 22, 1994 through November 16, 1995 and provided that “thereafter any permanent partial disability due and payable is offset by claimant’s weekly pension benefits of $1,038.25.” The county sought judicial review of the Commission’s order, contending that the entire award was offset by the pension benefits. Because it had already paid, in a lump sum, the 91 weeks of benefits ordered by the Commission, the county sought a credit for that amount against the disability retirement benefits payable in the future. 1 The Circuit Court for Baltimore County found merit in the county’s position and granted its motion for summary judgment, finding that, if the award were allowed, Blevins “will collect twice.” Relying on Frank v. Baltimore County, 284 Md. 655 , 399 A.2d 250 (1979), which it found controlling, the Court of Special Appeals affirmed. Frank also involved a Baltimore County police officer who, in 1975, suffered an accidental injury in the line of duty.

Like Col. Blevins, he continued to receive his full salary from the county, although, unlike Blevins, Lt. Frank did lose some time from work due to his injury. On February 6, 1976, he retired with a work-related disability and began receiving disability retirement benefits in the amount of $841/month.

Upon his retirement, Lt. Frank applied for workers’ compensation benefits, seeking payment for a permanent partial disability. In January, 1977, the Commission found that he had sustained a 20% industrial loss of use of his body, 15% of the disability being attributable to the 1975 accident, and it awarded him benefits in the amount of $54/week, commencing from the date of his retirement. It found as well, however, that those benefits were fully offset by the higher retirement benefits Lt. ⁶²⁵ Frank was receiving, a determination sustained, on judicial review, by the circuit court.

Noting that the statute, then codified as Maryland Code, Article 101, § 33, afforded a credit only for a benefit “furnished” or “provided” by the employer, Frank argued on appeal that, because the pension plan at issue was funded through contributions made by both him and the employer, the benefits paid to him under that plan were not benefits furnished or provided by the employer “until after the employee’s contributions are first returned to him.” His contention was that, during the 48-week period that he otherwise would have received workers’ compensation benefits, he was receiving from the pension plan only a return of his own contributions and therefore “could not be said to be receiving payments from his employer which were ‘equal to or better than’ the workmen’s compensation award established for this same time period.” Frank, supra, 284 Md. at 660 , 399 A.2d at 253-54 . That argument was based on § 72(d) of the Internal Revenue Code, which provided that, if a retiree receives benefits under a pension plan funded by both employee and employer contributions, the amounts received by the employee are not taxable until the employee has received the total amount of his or her contributions to the plan. We rejected Frank’s argument. We observed initially that the unmistakable purpose of Article 101, § 33 was “to provide only a single recovery for a single injury for government employees covered by both a pension plan and workmen’s compensation.” Id. at 659, 399 A.2d at 253 .

The statute, we held, did not mandate that the pension benefit be entirely supplied by the employer in order to qualify as a set-off, and we pointed out that the addition of such a requirement “would frustrate the legislature’s intention to minimize the burden on the public treasury that would result from providing duplicate benefits to public employees.” Id. at 661 , 399 A.2d at 254 (emphasis added). We concluded, therefore, that the employer was entitled to be discharged from its compensation obligation “whenever the total amount of any employee benefit, whether furnished entirely or partially by employer funds, is ⁶²⁶ equal to or better than the workmen’s compensation award.” Id. We then noted a “second flaw” in Frank’s argument—the assumption that the benefits of the two plans “are only to be compared for the period in which the two will be simultaneously due.” Id. That argument, we said, also would require an addition to the statutory language, as there was no provision in the statute that placed a time limitation on the contrast that was to be made.

The Internal Revenue Code provision, we held, was inserted by Congress “solely for administrative reasons and not because that legislative body believed employee contributions were actually returned first.” Id. at 662 , 399 A.2d at 255 . A more sensible interpretation of the pension was that each monthly payment represented a prorated return of the employee’s contributions, augmented by employer-generated funds. The Court of Special Appeals seized on the part of our discussion in Frank noting the absence of a time limitation and directing that the total amounts of the two benefits were to be compared, to conclude that “[t]he officer’s date of retirement was not central to Frank ” and, indeed, that the date of retirement was “irrelevant to the application of the offset provision.” Wills v. Baltimore County, supra, 120 Md.App. at 312 , 707 A.2d at 124 . From that premise, the court went on to determine that the lack of an overlap in Blevins’s benefits also was irrelevant.

It held that, because the Commission “awarded Blevins workers’ compensation benefits from the date of his injury forward, into the period of retirement during which Blevins receivefd] disability benefits,” there was “a substantial period of overlap of benefits.” Id. Under Frank , it held, “the entire workers’ compensation award should have been compared to the entire disability retirement award, irrespective of time frame.” Id. It is true that, in Frank , the date of retirement was irrelevant, but that was because the workers’ compensation benefits did not extend beyond that date. The issue was whether the retirement benefits paid during the first 48 weeks ⁶²⁷ of retirement actually constituted an employee benefit, Frank’s argument being that, because those payments represented a return of his own contributions, they did not constitute such a benefit and, for that reason, did not serve as a credit against compensation benefits.

It was in that context, and that context alone, that we concluded that the benefit package needed to be viewed in its entirety. Indeed, we have subsequently made clear that permanent disability compensation benefits are awarded and paid on a weekly basis and are to be regarded as weekly benefits. See Philip Electronics v. Wright, 348 Md. 209 , 703 A.2d 150 (1997); Porter v. Bayliner, 349 Md. 609 , 709 A.2d 1205 (1998). The simple fact here is that Colonel Blevins would not be receiving a duplicate benefit for the same injury, as was the case in Frank .

The workers’ compensation benefits were awarded for a weekly period prior to his retirement, when he was not receiving and was not entitled to receive any offsetting retirement benefits. The fact that the actual award of workers’ compensation benefits or their payment came after his retirement is of no consequence. There was no overlap, as found by the Court of Special Appeals. 2 Wills Mary Wills was a clerical employee for Baltimore County. On March 26, 1992, she suffered a work-related injury to her back, requiring hospitalization and further treatment and rendering her unable to return to work.

On February 8, 1993, Ms. Wills, then 70 years old with 31 years of service, retired. Three days later, she began receiving ordinary service-based ⁶²⁸ retirement benefits in the amount of $300/week. She thereafter filed a claim for workers’ compensation benefits. A hearing before the Commission was held on March 4,1994 on eight issues raised by the county, all involving the nature, extent, and cause of her injury.

Although it was clear that Ms. Wills was then retired and was receiving retirement benefits—a fact she admitted in her testimony—the county never raised the issue of whether any workers’ compensation benefits to which she might be entitled were subject to set-off by the retirement benefits. This neglect was apparently based on the county’s view, at the time, that ordinary service-based retirement benefits did not qualify to be set off against workers’ compensation benefits. In an order entered March 17, 1994, the Commission addressed each of the issues raised by the county and concluded that Ms. Wills had a permanent total disability, 75% of which was attributable to the accidental injury she suffered in March, 1992. Temporary total disability benefits, most of which were discharged through salary continuation benefits, were awarded up to December 31, 1992, and, commencing January 1, 1993, the county was directed to pay permanent total disability benefits at the rate of $329/week for 500 weeks, not to exceed $164,500.

The Subsequent Injury Fund was directed to continue those benefits thereafter, for as long as Ms. Wills remained permanently totally disabled. The county sought judicial review of the award but failed to raise any issue with respect to set-off. In November, 1995, the Circuit Court for Baltimore County affirmed the Commission’s award. In January, 1996, the county changed its institutional mind and concluded that, as the result of the 1991 rewriting of Article 101, § 33, in the form of § 9-610 of the Labor and Employment Article, ordinary retirement benefits did qualify as a set-off.

It therefore filed an issue before the Commission seeking, for the first time, to have Ms. Wills’s $300/week pension benefit set off against her $329 weekly compensation award. As noted, when the compensation benefit exceeds the alternative offsetting benefit, the employer must pay the difference. Sections 9-610(a)(3) and (c) deal with that sitúa ⁶²⁹ tion. The former states that “[t]he computation of an additional benefit ... shall be done at the time of the initial award and may not include any cost of living adjustment after the initial award.” Section 9-610(c) provides, in relevant part: “(1) The Commission may: (i) determine whether any benefit provided by the employer is equal to or greater than any benefit provided for in this title; and (ii) make an award against the employer ... to provide an additional benefit that equals the difference between the benefit provided by the employer and the benefits required by this title.

(2) A claim that comes under this section is subject to the continuing powers and jurisdiction of the Commission.” Although the document filed by the county with the Commission is not in the record before us, the county asserted, without contradiction, that it was invoking the continuing jurisdiction of the Commission under § 9-610(c)(2). After a hearing, the Commission denied relief, relying principally on the requirement of § 9-610(a)(2) that the computation of the incremental benefit must be done at the time of the initial award. It noted that the county was aware of the relevant facts at the time of the 1994 hearing and could have raised the issue at that time. The change in the statute, to the extent relevant, occurred in 1991.

Upon the county’s petition for judicial review, the Circuit Court for Baltimore County reversed. Although it agreed that if, as here, the claimant was receiving the pension benefit at the time of the award, any increment must be determined at that time, the court concluded that, under § 9-610(c)(2), the employer could invoke the continuing jurisdiction of the Commission and seek a set-off later. In this instance, it held, Ms. Wills suffered no prejudice from the delay, as she continued to receive both benefits. On the merits, the circuit court noted that, prior to 1991, the predecessor to § 9-610(a) permitted a set-off only for benefits that were “similar” to workers’ compensation benefits and that, in Newman v. Subsequent Injury Fund, 311 Md. 721 , ⁶³⁰ 537 A.2d 274 (1988), we held that an ordinary retirement benefit did not constitute a “similar benefit” for purposes of the statute and therefore did not qualify to be set off against workers’ compensation benefits.

The court observed also, however, that, in enacting § 9-610, the General Assembly dropped the word “similar” from the statute, thereby eliminating the distinction, for set-off purposes, between similar and non-similar benefits. On that basis, it concluded that the county was entitled to the set-off. The Court of Special Appeals affirmed. In doing so, it first rejected Ms. Wills’s argument that the Commission’s decision declining to revise its 1994 order was not subject to judicial review, and that the circuit court should therefore have dismissed the county’s petition.

Distinguishing the situation before it from that presented in Robin Express v. Cuccaro, 247 Md. 262 , 230 A.2d 671 (1967) and Roadway Express, Inc. v. Gray, 40 Md.App. 66 , 389 A.2d 407 (1978), the appellate court concluded that the Commission had, in fact, exercised its continuing jurisdiction, reopened the 1994 ruling, considered the county’s argument, and denied its request for relief on the ground that § 9-610(a)(3) barred entitlement to a set-off after the making of an initial award. That decision, the court held, was “an appealable ‘new holding.’ ” Wills at 294 , 707 A.2d at 115 . The Court of Special Appeals also agreed with the substantive ruling of the circuit court. Though acknowledging that § 9-610 was enacted as part of a general code revision and that changes in wording made through code revision ordinarily are not construed as making substantive changes in the law, the appellate court presumed that the Legislature was aware of our holding in Newman , with its emphasis on the adjective “similar” in the statute, and it concluded that the Legislature’s omission of that word in the rewriting necessarily had substantive significance.

It held that “[t]he importance of the word ‘similar’ to the Newman holding and the lack of any explanation based on form alone for its disappearance upon recodification from the current governmental employee offset provision is compelling evidence that the Legislature took ⁶³¹ positive action to remove the word from the statute for a substantive purpose, i.e., to modify the law.” Wills, supra, 120 Md.App. at 302-03 , 707 A.2d at 119 . Although we question the appellate court’s analysis with respect to the county’s right to judicial review under § 9-736, we shall not rest our decision on that issue. Far more important, from a public policy point of view, is our disagreement with conclusions of the lower courts regarding the effect of the 1991 rewriting of Article 101, § 33. We shall conclude that the Legislature’s omission to carry forth the word “similar” into § 9-610(a) was not intended to effect a substantive change in the law and shall reverse the judgment of the Court of Special Appeals for that reason.

Right To Judicial Review Section 9-610(c)(2) is one of at least three “continuing jurisdiction” provisions in the Workers’ Compensation Law. See also § 9-736, providing generally for the Commission’s continuing jurisdiction, subject to a five-year statute of limitations, over “each claim under this title,” and § 9—681(j), providing continuing jurisdiction in the Commission with respect to benefits payable to persons who were dependent on deceased covered employees. All of these sections must be read in conjunction with § 9-737, however, which provides for judicial review of Commission decisions and requires that a petition for such review be filed within 30 days after the date of the Commission’s order. 3 ⁶³² The issue of whether a decision by the Commission not to revise an earlier award or ruling is subject to judicial review has been before this Court on a number of occasions. In Gold Dust Corp. v. Zabawa, 159 Md. 664 , 152 A. 500 (1930), we addressed the question of whether a claimant, whose claim was denied on the merits and took no timely “appeal” from that decision, could “then, upon an application to the commission for a reopening of the question, and a refusal of his application, prosecute an appeal within thirty days from that refusal.” Id. at 665 , 152 A. at 501 .

We began by confirming that the requirement that petitions for judicial review be filed within thirty days after the decision was “positive and mandatory.” Id. at 666 , 152 A. at 501 . The refusal to reopen was certainly a decision, we said, “but it was only a decision not to interfere with a previous decision settling the merits of the claim,” and “it is regularly considered that a decision declining to interfere with a previous decision is not one intended to be included under a general statutory allowance of appeal from any decision.” Id. We analogized requests to reopen a Commission decision to requests to reopen court judgments and noted the doctrine prevailing at the time that “from a final order merely refusing to reopen a previous order or decree no appeal is permitted.” Id. at 667 , 152 A. at 501 . Quoting from the early decision in Lefever v. Lefever, 6 Md. 472, 478 (1854), we iterated concern that if parties could challenge final orders on appeal in this indirect way, “it would virtually amount to a repeal of the law limiting the time within which appeals should be taken, and lead to interminable litigation.” Id. at 667, 152 A. at 502 .

We thus concluded that the general principle of not allowing appeals from orders declining to reopen previously entered final orders and judgments, was “equally applicable” to the statutory allowance of judicial review of Workers’ Compensa ⁶³³ tion Commission decisions, absent some contrary provision in the statute. Distinguishing and sharply limiting the language and holding of Bethlehem Shipbuilding Corp. v. Simmons, 143 Md. 506 , 122 A. 678 (1923), the Gold Dust Court concluded that the provision for continuing jurisdiction in the Commission—the predecessor of current § 9-736—“seems to provide nothing more than a power to reopen, and we do not see that it bears upon the right of appeal.” Gold Dust Corp., supra, 159 Md. at 669 , 152 A. at 502 . On that premise, this Court reversed the judgment of the circuit court and held that the lower court should have dismissed the claimant’s “appeal.” In a number of subsequent cases, we drew a distinction between the Commission simply declining to reopen a final ruling, which was the case in Gold Dust, and the Commission effectively granting a motion to reopen, reconsidering an earlier ruling, and entering a new ruling, whether the effect of the new ruling is the same as or different from the earlier ruling. In Robin Express v. Cuccaro, supra, 247.

Md. 262, 265, 230 A.2d 671, 672 , after reviewing the relevant cases, we made clear that “[i]f a court or administrative body reopens a case its second decision, be it the same or different from its previous decision, is a new holding; if it refuses to reopen, it decides only not to interfere with its previous decision which stands unimpeached as of its original date.” When, upon the filing of an application to reopen or on its own initiative, the Commission enters a new order that differs in any material way from the earlier order, whether or not the end result is the same, it is obvious that the matter has been reconsidered and a new holding made. Conversely, if the Commission denies an application without discussing the merits or propriety of the earlier order, it is evident that the earlier order has not been reconsidered and no new holding has been made. The prospect of ambiguity arises when the Commission considers an application to reopen and, without making clear its intent, enters an order declining to revise the earlier order. The reviewing court then must attempt to determine from the record whether the Commission has, in effect, granted the application and affirmed its earlier ruling ⁶³⁴ or has simply declined to reconsider that ruling.

In trying to fathom the Commission’s intent, the court should consider, among other things, whether evidence was taken on the application, whether, in entering its new order, the Commission discussed or made findings with respect to the correctness, validity, or propriety of the earlier order, and whether, in denying relief, the Commission either acted summarily, without assigning reasons, or focused only upon defects in the application itself. The Commission’s action here is ambiguous in this regard. It did not summarily deny the county’s application. It held a hearing, considered the county’s request for a set-off, and seemed to accept, at least tacitly, that, by virtue of the 1991 rewriting of the statute, ordinary service-based retirement benefits would qualify as a set-off.

Its oral remarks from the bench indicate that it denied the county’s request for set-off solely on the ground that the right to and amount of any set-off had to be determined at the time of the initial award and could not be considered later. Its written order, entered on June 7, 1996 stated simply, in this regard, that the Commission “has concluded to deny the employer, self-insurer’s request for a setoff for benefits under Section 9-610(a)(2) of the Labor Article against compensation previously awarded for permanent partial disability under the Order dated March 17, 1994.” The Court of Special Appeals determined that the Commission “exercised its continuing jurisdiction, considered the County’s request