Buckler v. Willett Construction Co.

RAKER, Judge. This appeal arises out of a workers’ compensation claim for temporary total disability benefits. The claimant sustained a compensable accidental injury arising out of and in the course of his employment. The issue we must decide is whether the claimant is entitled to receive temporary total disability benefits as a result of the accidental injury he suffered while working for one employer, which rendered him unable to perform that job, but allowed him to continue to work at his second job.

We shall hold that under the Workers’ Compensation Act (Act), Maryland Code (1991 Repl.Vol., 1996 Cum.Supp.) Title 9 of the Labor and Employment Article, 1 an employee cannot recover temporary total disability benefits when the employee maintains the non-injury employment while injured. On February 3, 1994, Appellant, Clifford P. Buckler, sustained an accidental injury arising out of and in the course of his employment with Appellee, Willett Construction Company, when he fell and injured his left hand. At the time of the injury, Buckler was also employed as a night guard for E.L. Gardner, Inc. The injury rendered Buckler unable to perform his work for Willett Construction Company, but did not affect his ability to work for E.L. Gardner. 2 ³⁵³ Willett Construction paid Buckler’s medical bills and temporary total disability benefits from February 3, 1994, to March 17, 1994. Willett Construction discontinued the benefits when it discovered that Buckler had been continually employed as a night guard.

Buckler filed a claim for continued temporary total disability benefits with the Workers’ Compensation Commission (Commission). The Commission held a hearing on September 26, 1994, on the issue of additional temporary total disability from March 18, 1994, and continuing. The employer alleged at the hearing that Buckler was not entitled to temporary total disability benefits from March 18, 1994 to the date that he reached maximum medical improvement because he was working at another job during this period of time. The Commission determined that Buckler’s average weekly wage was $339.00 and that he was entitled to temporary total disability benefits at the rate of $226.00 per week until March 17, 1994.

The Commission denied his request for temporary total disability benefits beyond March 17,1994. Buckler filed a petition for judicial review in the Circuit Court for Prince George’s County. The circuit court granted Willett Construction’s Motion to Dismiss and affirmed the order of the Commission. The court held that Buckler was not entitled to temporary total disability benefits because he continued to work at E.L. Gardner and, therefore, he was not totally disabled.

The circuit court remanded the case to the Commission for further proceedings. Buckler appealed to the Court of Special Appeals. We granted certiorari on our own motion prior to consideration by that court. Buckler contends that the trial court erred by granting Willett Construction’s Motion to Dismiss.

He asserts that he is entitled to temporary total disability benefits to compensate him for his “loss of earning capacity” that resulted from the ³⁵⁴ injury. Buckler takes the position that prior to the injury his earning capacity was the combination of his salary at Willett Construction Company and at E.L. Gardner. Consequently, his inability to work at Willett Construction while injured decreased his earning capacity notwithstanding his continued employment with E.L. Gardner. Willett Construction maintains that the trial court correctly dismissed Buckler’s claim.

Because Buckler continued to work at E.L. Gardner while he was injured, he was not “totally disabled,” and, therefore, he was not entitled to temporary total disability benefits. The Act recognizes four categories of disability: (1) temporary partial disability, § 9-614; (2) temporary total disability, § 9-618; (3) permanent partial disability, § 9-625; and (4) permanent total disability, § 9-635. The Act does not define the categories of disability, but rather sets out the formula for computing benefits in each category. The cornerstone of the benefits calculation is “average weekly wage.” The statute directs that average weekly wage consists of the full-time wages of the employee 3 as of the time of the injury. § 9-602(a).

To calculate benefits for temporary total disability, the benefits Buckler seeks in this case, the Act provides, in pertinent part: [I]f a covered employee is temporarily totally disabled due to’ an accidental personal injury or an occupational disease, the employer or its insurer shall pay the covered employee compensation that equals two-thirds of the average weekly wage of the covered employee.... § 9-621(a). The Act calculates benefits differently for temporary partial disability. [I]f the wage earning capacity of a covered employee is less while temporarily partially disabled, the employer or its insurer shall pay the covered employee compensation that equals 50% of the difference between: ³⁵⁵ (i) the average weekly wage of the covered employee; and (ii) the wage earning capacity of the covered employee in the same or other employment while temporarily partially disabled. § 9-615(a). The statute does not define the terms “temporary total disability” and “temporary partial disability.” We are able to gain insight into the Legislature’s meaning, however, by construing the temporary total disability section, § 9-621, in the context of the temporary partial disability section, § 9-615. See Blondell v. Baltimore City Police Dept., 341 Md. 680, 691 , 672 A.2d 639, 645 (1996) (“[W]e construe the statute as a whole, interpreting each provision of the statute in the context of the entire statutory scheme.”).

In § 9-615(a), the General Assembly expressly recognized that an injured worker may be able to continue working after the injury, either at the same job or in some other employment. The formula for temporary partial disability, in contrast to the formula for temporary total disability, accounts for wages earned by the employee while disabled. When an employee becomes temporarily partially disabled, the employer is obligated to pay the employee fifty percent of the difference between the employee’s average weekly wage and the wage-earning capacity of the employee in the same or other employment while injured. § 9-615(a). Temporary total disability looks only to average weekly wage. § 9-621(a).

Implicit in the statutory structure is the notion, well-established by Maryland case law, that temporary total disability is incompatible with post-injury employment. Temporary partial disability benefits are those “paid to an injured worker who has rejoined the workforce but has not yet reached maximum medical improvement from the effects of the injury.” 4 See R. Gilbert & R. Humphreys, Maryland ³⁵⁶ Workers’ Compensation Handbook § 9.2, at 208-04 (1993). Temporary total disability benefits, on the other hand, are those paid to a injured worker who is “wholly disabled and unable to work because of the injury.” Id. at 204. At issue in this case is whether Buckler is entitled to temporary total disability benefits.

In the absence of a statutory definition of total disability, it is useful to review how this Court has interpreted that term in the past. This Court has defined the period of temporary total disability as the “healing period, or the time during which the workman is wholly disabled and unable by reason of his injury to work.” Gorman v. Atlantic Gulf & Pac. Co., 178 Md. 71, 78 , 12 A.2d 525, 529 (1940); see also Bowen v. Smith, 342 Md. 449, 456 , 677 A.2d 81, 84 (1996); Victor v. Proctor & Gamble, 318 Md. 624, 632-33 , 569 A.2d 697, 702 (1990). We have recognized, however, that a worker need not be completely helpless to be deemed totally disabled.

Babcock & Wilcox, Inc. v. Steiner, 258 Md. 468, 473 , 265 A.2d 871, 874 (1970). To establish total disability, it suffices that the worker be able only “to perform services so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist.” Mayor & City Council of Baltimore v. Cassidy, 338 Md. 88, 98 , 656 A.2d 757, 762 (1995). “An employee capable of performing marketable, sedentary duties, cannot be classified as totally disabled under the Workers’ Compensation Act.” Montgomery County v. Buckman, 333 Md. 516, 529 , 636 A.2d 448, 454 (1994). This Court considered the meaning of “total disability” under the terms of Article 101 of the Maryland Code, the precursor to Title 9 of the Labor and Employment Article, 5 in ³⁵⁷ Congoleum Nairn v. Brown, 158 Md. 285 , 148 A. 220 (1930). In Brown , while working for Congoleum Nairn, the claimant severed several fingers and he received compensation from the Commission for permanent partial disability resulting from that loss.

Id. at 286 , 148 A. at 220 . The trial court awarded compensation for total disability. Id. at 287 , 148 A. at 221 . The relevant issue on appeal was whether the trial court properly instructed the jury that they might find permanent total disability if they found that prior to the accident, the claimant was able to do the regular work assigned to him, but after the accident, was totally and permanently incapacitated to do that work or any other work that he was accustomed and qualified to perform at the time of the accident.

Id. at 287 , 148 A. at 221 . The employer objected to the instruction, asserting that “total disability in the Compensation Act means incapacity to do further work of any kind, not only of the kind he was accustomed and qualified to perform at the time of the accident.” Id. at 287 , 148 A. at 221 (emphasis added). This Court agreed and reversed the judgment, holding that in measuring wage-earning capacity, the measure is not limited to