Del Marr v. Montgomery County

SHARER, J. Appellant, Paul Del Marr, appeals from a decision by the Circuit Court for Montgomery County granting appellee’s, Montgomery County’s (“County”), motion for summary judgment. The effect of the grant of summary judgment was a partial reversal of an order of the Maryland Workers’ Compensation Commission (“Commission”) awarding credit to the County, on a weeks-eredit rather than dollar-credit format, for compensation benefits paid to appellant. Appellant raises one question for our review, which, as rephrased, is: 1 When a claimant reopens a claim for worsening of condition, and the award is increased from a first-tier injury to a second-tier injury, is credit to the employer to be made on ¹⁸⁹ the basis of dollars paid, or the number of weeks for which compensation was paid? For the reasons discussed herein, we shall affirm the circuit court’s judgment.

FACTUAL BACKGROUND Since the underlying facts are not at issue in this case, we recount them only briefly. On January 9, 2001, appellant, a master electrician for the Montgomery County Board of Education, suffered a compensable injury to his lower back while lifting a heavy transformer. Appellant filed a claim for benefits with the Commission on January 31, 2001, under the Maryland Workers’ Compensation Act (“Act”). See Md.Code, Lab. & Empl.

(“L.E.”) §§ 9-101 et seq. (1999 Rep. Vol., 2005 Supp.). On April 18, 2002, the Commission held a hearing on appellant’s claim and, on May 2, 2002, issued its first award of benefits based on a finding that appellant had sustained a permanent partial disability. 2 The Commission’s subsequent awards to appellant and the procedural history of this case, are detailed, infra.

STANDARD of REVIEW In Stanley v. American Fed’n of State & Local Mun. Employees Local No. 553, 165 Md.App. 1, 13 , 884 A.2d 724 (2005), we noted that, [ujnder Maryland Rule 2-501 (f), summary judgment may be granted “if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” ¹⁹⁰ We review a circuit court’s order granting summary judgment de novo. We determine whether there is any dispute of material fact, and, if there is none, we then determine whether the court was legally correct in its ruling. As we undertake this review, “ ‘we construe the facts properly before the court, and any reasonable inferences that may be drawn from them, in the light most favorable to the non-moving party.’ ” “ ‘We ordinarily will uphold the grant of summary judgment only on a ground relied on by the trial court.’ ” (Internal citations omitted).

As well, “[questions of statutory construction and interpretation are questions of law.” Marzullo v. Kahl, 135 Md.App. 663, 671 , 763 A.2d 1217 (2000). Thus, we review the circuit court’s decision de novo. DISCUSSION Maryland Workers’ Compensation Act “The [Act] was originally enacted in 1914 to compensate employees for the loss of earning capacity resulting from accidental injury, disease, or death occurring during the course of employment.” Philip Elecs. N. Am. v. Wright, 348 Md. 209, 215 , 703 A.2d 150 (1997) (citing DeBusk v. Johns Hopkins, 342 Md. 432, 437 , 677 A.2d 73 (1996)).

Pursuant to L.E. § 9-501, persons accidentally injured at work may be entitled to a variety of benefits from their employers, regardless of fault. See also Mayor & City Council of Balt. City v. Johnson, 156 Md.App. 569, 586 , 847 A.2d 1190 (2004), aff'd 387 Md. 1 , 874 A.2d 439 (2005). “The Act essentially is remedial, social legislation designed to protect workers and their families from various hardships that result from employment-related injuries.” Livering v. Richardson’s Rest. & PMA, 374 Md. 566, 574 , 823 A.2d 687 (2003). In Johnson, supra, 156 Md.App. at 587-88 , 847 A.2d 1190 , we noted: The Act was conceived to protect workers and their families, among others.

But, as the Court of Appeals has explained several times, including in Polomski, 344 Md. at 76, 684 A.2d 1338 “[although the Act’s name suggests that it was ¹⁹¹ intended solely for the benefit of employees, the preamble to the 1914 Act, and, indeed, [the Court’s] previous holdings, reveal otherwise.” The Court has made clear that, “[i]n reality, the Act protects employees, employers, and the public alike.” (Internal citations omitted). Among the benefits available to employees is monetary compensation for permanent partial disability. See L.E. § 9-625. Section 9-627, the so-called “listed member” provision, specifies the number of weeks of compensation to which a claimant is entitled, depending upon which part of the claimant’s body is injured.

Appellant’s injury fell under the “other cases” category of injuries covered specifically by subsection 9-627(k). 3 Under this sub-section, appellant could receive a maximum of 500 weeks of compensation, dependent upon the percentage of his disability. See L.E. § 9-627(k)(3). Pursuant to L.E. § 9-627(k)(4), compensation is paid “at the rates listed for the period in §§ 9-628 through 9-639[.]” These sections establish a tier structure for determining the actual amount of compensation. Section 9-628 states, in pertinent part: ¹⁹² (e) On or after January 1, 2000.—Except as provided in subsections (f) and (g) of this section, if a covered employee is awarded compensation for less than 75 weeks in a claim arising from events occurring on or after January 1, 2000, the employer or its insurer shall pay the covered employee compensation that equals one-third of the average weekly wage of the covered employee but does not exceed $114.

Section 9-628 is considered the first tier level. Section 9-629 is considered the second or middle tier and provides: Compensation for period equal to or greater than 75 weeks but less than 250 weeks. If a covered employee is awarded compensation for a period equal to or greater than 75 weeks but less than 250 weeks, the employer or its insurer shall pay the covered employee weekly compensation that equals two-thirds of the average weekly wage of the covered employee but does not exceed one-third of the State average weekly wage. The third tier, § 9-630, covers serious disabilities and provides, in pertinent part: Serious disability—Compensation for 250 weeks or more.

(a) In general.—(1) Except as provided in paragraph (2) of this subsection, if a covered employee is given an award or a combination of awards resulting from 1 accidental personal injury or occupational disease for 250 weeks or more under § 9-627 of this subtitle: (i) the Commission shall increase the award or awards by one-third the number of weeks in the award or awards, computed to the nearest whole number; and (ii) the employer or its insurer shall pay the covered employee weekly compensation that equals two-thirds of the average weekly wage of the covered employee, but does not exceed 75% of the State average weekly wage. ¹⁹³ (2) An award for disfigurement or mutilation under § 9-627(i) of this subtitle may not be used to make up the 250 weeks under paragraph (1) of this subsection. (b) More than one concurrent employer.—(1) This subsection applies to the payment of weekly compensation required under subsection (a) of this section if the average weekly wage of a covered employee is computed under § 9-602(1) of this subtitle. (2) The employer in whose employment the accidental personal injury occurred or the employer’s insurer shall pay the covered employee weekly compensation that is based on the weekly wages of the covered employee at the employment in which the covered employee was injured. (3) Subject to paragraph (4) of this subsection, any additional weekly compensation resulting from computing the average weekly wage based on weekly wages earned by the covered employee in other employment shall be payable in the first instance by the employer in whose employment the employee was injured or the employer’s insurer.

(4) Subject to any right of the Subsequent Injury Fund to be impleaded or any right of the Subsequent Injury Fund to defend in a case involving payment from the Subsequent Injury Fund created under Title 10, Subtitle 2 of this article, as allowable under Subtitle 8 of this title, the Subsequent Injury Fund shall reimburse the employer in whose employment the employee was injured or the employer’s insured the amount of additional weekly compensation paid by the employer or insurer under paragraph (3) of this subsection. (c) Relation to other provisions.—(1) Except as provided in paragraph (2) of this subsection, § 9-627 of this subtitle applies to covered employees who are covered by this section. (2) To the extent of any inconsistency, this subsection prevails over § 9-627 of this subtitle. Notably, L.E. § 9-630(d) provides that upon reopening a claim “[i]f a covered employee receives additional compensa ¹⁹⁴ tion for a disability on a petition to reopen for serious disability, the additional compensation may not increase the amount of compensation previously awarded and paid.” (emphasis added) No similar provision, addressing the procedure for an award of additional compensation, upon re-opening a claim, is found in either L.E. §§ 9-628 or 9-629.

Appellant’s Injury Calculations Pursuant to appellant’s claim, the Commission made the following series of awards: Order I—On May 2, 2002, the Commission found that appellant sustained a 20% loss of the use of the body as a result of an injury to the back, 10% of which was due to a pre-existing condition. Under L.E. § 9-628, the rate of compensation was $114 per week for 50 weeks. Order II—On January 9, 2003, the Commission, by stipulation of the parties/ 4 - 1 ordered an increase in the rate of industrial loss of the use of the body as a result of permanent partial disability to 24%, 14% related to the accidental injury (a 4% increase over Order I) and 10% due to a preexisting condition. The rate of compensation for this injury remained the same, $114 per week, because the percentage of injury, 14%, kept the claim within Tier 1; the total number of weeks to be compensated increased, however, from 50 from 70 (14% multiplied by 500 equals 70 weeks).

Order III—On May 26, 2004, in response to appellant filing a petition to reopen his claim due to a worsening of his condition, pursuant to L.E. § 9-736/[ 5 , 6 ] the Commission ¹⁹⁵ found that appellant’s partial permanent disability to the body was 33%, 23% due to accidental injury (a 9% increase) and 10% due to a pre-existing condition. 7 That resulted in an increase in the award from 14% to 23%; thus, appellant’s compensation award moved from a Tier 1 level injury to a Tier 2 level injury (23 percent multiplied by 500 equals 115 weeks). Under Order III, appellant was entitled to 115 weeks of compensation, subject to an offsetting credit for payments of dollars made by the County under Order II, which translated to 70 weeks of compensation under Tier 1 for a total of $7,980. By ordering a dollar-credit for the amount previously paid under Order II, rather than a weeks-credit, the County calculated that it was potentially liable for a windfall to appellant. The purported windfall was calculated as follows: In Order III, the total compensation awarded was $25,645 (115 weeks multiplied by $223).

The amount of money awarded, and paid, ¹⁹⁶ under Orders I and II was $7,980 (70 weeks multiplied by $114). Under a dollar-credit formulation, therefore, appellant was still owed $17,665 ($25,645 minus $7,980). Under the County’s weeks-credit calculation, since it had previously paid 70 weeks of compensation, Order III required that it pay only 45 more weeks of compensation at the Tier 2 level, for a remaining payment of $10,035 (45 weeks multiplied by $223). Thus, the amount at issue in this appeal is the difference between the dollar-credit ($17,665) and the weeks-credit ($10,-035), or $7,630.

The Commission did not adopt the County’s position; thus, the County sought judicial review of Order III in the circuit court. On November 9, 2004, the County filed a motion for summary judgment challenging Order III, not on the basis of the increased percentage of disability awarded to appellant, but on the Commission’s determination of the form of credit due the County for payments previously made. Appellant likewise moved for summary judgment. On February 8, 2005, after a hearing on the cross-motions for summary judgment, the circuit court granted the County’s motion, ruling from the bench that the County was entitled to a credit for the number of weeks of benefits paid, rather than the amount of dollars. 8 On that same date, the court memori ¹⁹⁷ alized its oral opinion with a written order.

Appellant noted this timely appeal of that decision. Analysis Appellant maintains that the legislatively mandated method for calculating the credit to be awarded in cases of re-opening differs when the subsequent award is increased to Tier 3, rather than to Tier 2, as in the case sub judice. 9 Our holding follows the Court of Appeals’ most recent guidance in Ametek v. O’Connor, 364 Md. 143 , 771 A.2d 1072 (2001). In order to provide context for our discussion of that holding, and given that our holding in this case departs from previous decisions of this Court, we begin with an analysis of the significant case law in this area. In Norris v. United Cerebral Palsy, 86 Md.App. 508, 511 , 587 A.2d 557 (1991), this Court addressed the question of a weeks-credit where the claimant’s reopening resulted in an increased compensation award from Tier 1 to Tier 2.

Norris’s award for partial permanent disability, under “other cases,” rose from 10% to 30%. 10 Id. On his petition for reopening, the Commission awarded the employer a dollar-credit, “for the amount previously paid.” Id. The circuit court disagreed and, applying the language of then Art. 101 § 36(3)(a)(iii), ordered a weeks-credit. Id. at 513, 587 A.2d 557 .

Thus, the question before this Court then was, in large part, the same as the one before us now. The Norris Court discussed the legislative intent in placing the “cap language” “proviso” within subparagraph (iii) alone and not other subsections of the statute. The Court noted As we have already indicated, the language of the proviso is not at all ambiguous; in fact, it is clear, unambiguous and susceptible of only one meaning. When, however, one ¹⁹⁸ considers its location, i.e., being placed at the end of subparagraph (in), an element of ambiguity is introduced. [11] Id. at 516 , 587 A.2d 557 (internal citations omitted).

Ultimately, given this ambiguity, the Norris Court found “it appropriate to apply the rule of statutory construction which requires that the benefit of the doubt be given to the worker” and held that the employer was only entitled to a dollar, rather than a weeks, credit for previous payments made to Norris. In Philip Elecs., supra, 348 Md. at 212 , 703 A.2d 150 , the Court of Appeals was called upon to determine whether, after an award [pursuant to the Workers’ Compensation Act, Maryland Code (Repl.Vol.1991, 1997 Supp.) ] to a claimant is reduced pursuant to a petition for judicial review, the employer is entitled to a credit for the total amount of money paid to the claimant before the reduction of the original award, or whether the appropriate credit is the number of weeks the employer paid benefits prior to the reduction. Wright, the injured employee, had been awarded compensation for a knee injury (an “other cases” injury) under L.E. § 9-627(k) at the Tier 3 level. 12 Both Wright and Philip Electronics filed for judicial review of the Commission’s award. Id. at 213, 703 A.2d 150 .

The jury returned a verdict ¹⁹⁹ finding that Wright had suffered loss of use of her body at a lower level than that found by the Commission, entitling her to compensation at the Tier 2 level. 13 Id. “Significantly, the Commission also gave Philip Electronics a credit for the amount of the monetary payments made under the Commission’s original order....” Id. Notably, in this case of a reduction in benefits, the economic incentives, and the litigating positions of the employer and employee, were effectively reversed from the case sub judice and from other similar cases. On remand the Commission ordered a dollar-credit. When again before the circuit court, Wright claimed that the Commission erred in awarding Philip Electronics a dollar-credit rather than a weeks-credit for payments made under the Tier 3 designation.

The circuit court affirmed the Commission’s decision. Id. at 213-14 , 703 A.2d 150 . This Court reversed the judgment of the circuit court, holding that Philip Electronics was entitled to a weeks-credit, not a dollar-credit. Id. at 214 , 703 A.2d 150 .

The Court of Appeals affirmed this Court, noting that “the language of § 9-627(k), as well as the language of § 9-629 and § 9-630, clearly and unambiguously demonstrate a legislative commitment to the payment of permanent partial disability benefits within a weekly framework.” Id. at 218, 703 A.2d 150 . Citing previous decisions construing the Act, the Court noted that: Taken together, [previous cases] and the plain language of the Act stand for the proposition that the General Assembly intended that an employer’s credit for the payment of permanent partial disability benefits be based upon the number of weeks of compensation previously paid, absent clear legislative expression to the contrary. Accordingly, we hold that when a claimant’s initial award by the Commission is reduced pursuant to a petition for judicial review, an employer shall be entitled to a credit for the number of ²⁰⁰ weeks of benefits actually paid in accordance with the original order, rather than a credit based upon the amount of money previously paid to the worker. Id. at 225-26 , 703 A.2d 150 .

The Court also found that a weeks-credit comported with the fundamental purpose of compensation for injured employees “to receive the weekly payment of benefits for the allotted number of weeks,____” Id. at 226 , 703 A.2d 150 . This Court has addressed two similar cases, each of which further illuminate our discussion. First, in Ametek, Inc. v. O’Connor, 126 Md.App. 109, 111 , 727 A.2d 437 (1999), we were faced with determining “how to calculate the credit due to an employer/insurer for benefits paid to a claimant prior to an increase in the claimant’s award that resulted from judicial review.” O’Connor, an employee of Ametek Inc., had been granted Tier 1 compensation by the Commission, which was then increased to Tier 3 following a trial in the circuit court. 14 As in the case sub judice, the employer urged that the credit be applied on a weeks-credit rather than a dollar-credit basis. Id.

Noting that the Act is a remedial statute to be “liberally construed in favor of employees,” we outlined the Court of Appeals’ reasoning in the Philip Elecs. case, among others, 15 focusing on the Act’s benevolent purposes rather than strictly on the Philip Elecs. Court’s eventual holding awarding a weeks-credit. Id. at 118-19 , 727 A.2d 437 . We stated that we ²⁰¹ ha[d] not uncovered any case suggesting that ... a claimant should receive less in benefit dollars than he or she is otherwise entitled to recover ...

Instead, ... the Act is liberally construed so as to minimize hardship to the employee and his or her dependents. Consequently, absent a clear legislative directive, the approach that inures a benefit to the employee is ordinarily favored. Id. at 122 , 727 A.2d 437 . We concluded by stating that, “when an award is increased upon judicial review, the Employer is not entitled to a credit based on the number of weeks for which benefits were paid.” Id. at 123 , 727 A.2d 437 .

Rather, the employer is entitled to a credit for the total amount of money actually paid to the claimant prior to the increase. Our next consideration of the subject occurred in Anne Arundel County v. Tierney, 132 Md.App. 149 , 751 A.2d 35 (2000). Tierney was originally awarded compensation for permanent partial disability based upon a 19.5% loss of use of a leg. Id. at 151 , 751 A.2d 35 .

Tierney sought to reopen, and succeeded in showing a worsening of his condition, resulting in an increased award. Id. The Commission, on remand, credited the employer “for benefits previously paid based on a calculation of a dollar amount.” Id. at 152 , 751 A.2d 35 . The employer argued for a weeks-credit, reasoning that the case differed from our decision in Ametek because the employee’s compensation award was increased due to a re-opening rather than upon judicial review of the original award.

Id. at 152-53 , 771 A.2d 1072 . Relying on our decision in Ametek , and again distinguishing Philip Electronics, we found that a weeks-credit was inappropriate where an employee “sought and obtained an increase— not a decrease—in permanent partial disability benefits.” Id. at 154-55 . The Tierney Court stated: We are confronted, as we were in Ametek , with a case in which the claimant is asking for an increase in benefits due to a worsening condition. Appellants’ contention that Ametek is distinguishable from the instant case is not persuasive. ²⁰² That the instant appeal involves a reopening of a claimant’s case as opposed to an appeal from a final judgment, is of no moment; as a consequence, the procedural distinction precludes the court from using the dollar approach, as long as that approach benefits the employee.

The Act is a remedial statute and, as stated, supra, must be construed in favor of the injured claimant. Under the circumstances of this case, and because appellee’s claim involves an increase in disability benefits, we perceive no error by the Commission, or the circuit court, in determining that appellants are entitled to a credit in a fixed dollar amount, rather than a weekly credit. We stated, in Ametek , that workers’ compensation cases must always be determined on a case-by-case basis; using the dollar approach is more beneficial to appellee and is consistent with the benevolent purpose and the legislative intent of the Act. Perceiving no material factual distinction, we accordingly adopt our ultimate holding in Ametek .

Id. at 156-57 , 751 A.2d 35 (internal citations omitted). Our analysis in these cases was undone by the Court of Appeals in Ametek v. O’Connor, 364 Md. 143 , 771 A.2d 1072 (2001). 16 In Ametek , the Court framed the issue as whether, after a claimant’s workers’ compensation award is increased on judicial review, the employer and insurer are entitled to a credit for the total amount paid to the claimant pursuant to the award or just a credit for the number of weeks the employer/insurer paid benefits. Id. at 144-45 , 771 A.2d 1072 . As we noted, O’Connor was awarded Tier 3 compensation after petitioning for judicial review of the Commission’s original award of Tier 1 compensation.

We affirmed the circuit court, which reversed the Commission, and ordered a dollar-credit to the employer. The Court of Appeals, however, disa ²⁰³ greed, noting that its decision in Philip Electronics controlled the result. Id. at 148 , 771 A.2d 1072 . The Ametek Court summarized its decision in Philip Electronics as follows: [They] focused on the language of § 9-627(k), that of § 9-628 and § 9-629, § 9-630 being inapplicable, discerning from the language of those sections a clear and unambiguous demonstration of a legislative commitment to the payment of permanent partial disability benefits within a weekly framework, and that such an intent is consistent with the purposes sought to be achieved by the Workers’ Compensation Act.

Our clear holding was that “any credit for previous payments should ... be expressed by ‘weeks.’ ” Id. at 149-50 (footnotes and internal citations omitted). Further, the Court noted that, “[i]n other words, the analysis applicable to cases involving the subsequent reduction of a workers’ compensation award \i.e. Philip Electronics ] is just as compelling when applied to those cases in which the award has subsequently been increased [i.e. Ametek ].” Id. at 152.

Despite the recognized benevolent purposes of the Act, and the fact that any uncertainty in the Act itself would be construed in O’Connor’s favor, the Ametek Court could not disregard the obvious weeks-based framework of the Act. First, there was no danger that O’Connor would go without compensation for the remainder of her increased award term; rather, she would merely not receive increased compensation for the award term that had already passed. Id. at 156 , 771 A.2d 1072 . Second, though the benefit of the Ametek Court’s decision would rest with the employer, there was no reason that equitable considerations militated otherwise.

Id. at 157 , 771 A.2d 1072 . The Court noted that O’Connor, too, “was ‘a party to this political equation,’ [and received] the valuable benefit of being relieved ‘from the vagaries of tort liability.’ ” Id. at 157 , 771 A.2d 1072 . Thus, the Court concluded: Just as predictability and administrative ease are important from the standpoint of the timing of actions, so too are they important in establishing the rules governing the award of ²⁰⁴ permanent partial disability benefits. It simply will not do to have different rules, depending upon whether it is the claimant or the employer to whom the result is inequitable.

Whether a credit is the amount the employer has paid or for the number of weeks the employer has paid should be determined on some principled and consistent basis and not made to depend upon which of the parties it will benefit. As the petitioner submits, “The Act should not be interpreted differently depending on the outcome in different claims.”[ 17 ] Id. at 157 , 771 A.2d 1072 (emphasis added). With that predicate in mind, we turn to the case sub judice. Although