Del Marr v. Montgomery County

WILNER, Judge. When an employee sustains a permanent partial disability as the result of an accidental injury covered under the Maryland Workers’ Compensation law, the employee is entitled to compensation that is determined in accordance with schedules set forth in Maryland Code, §§ 9-627 through 9-630 of the Labor and Employment Article (LE). The compensation provided for in those schedules is expressed as a number of dollars per week for a fixed number of weeks. Both the number of dollars per week and the number of weeks over which the compensation is to be paid depend on the nature and severity of the disability.

For certain kinds of disabilities, involving mostly the loss of digits, limbs, and hearing, the number of weeks for which compensation is paid is fixed in the statute. See LE § 9-627(b) through (j). For ³¹¹ other kinds of disabilities—those not listed in those subsections—the Workers’ Compensation Commission, using criteria set forth in § 9-627(k), must first determine the percentage by which the industrial use of the employee’s body was impaired as a result of the accidental injury. It then must award compensation based on the proportion that the determined loss bears to 500 weeks, subject to an enhancement for serious disability under § 9-630, at the weekly rates set forth in §§ 9-628 through 9-630.

Sections 9-628 through 9-630 provide for what practitioners in the field refer to as three tiers of compensation. With exceptions not relevant here, if compensation is awarded for less than 75 weeks, § 9-628(e) sets the amount of weekly compensation as one-third of the employee’s “average weekly wage” up to a maximum of $114. 1 That is the lowest, or first, tier. If compensation is awarded for a period of between 75 and 249 weeks, § 9-629 sets the amount of weekly compensation as two-thirds of the employee’s “average weekly wage” but not more than one-third of the State average weekly wage. 2 That is the middle, or second, tier. If compensation is awarded for 250 weeks or more, § 9-630 requires the Commission to increase the award by one-third the number of weeks and sets the amount of weekly compensation for that aggregate number of weeks at an amount that equals two-thirds of the employee’s “average weekly wage” but not more than 75% of the State average weekly wage.

That is the third, or highest, tier. As noted, each of these tiers provides for compensation based on a weekly rate for a set number of weeks and not as a lump sum amount. All of this works quite well and generally without complication if the award is not disturbed. For our purposes here, awards made by the Commission may be disturbed in two ways: (1) when a court, in an action for ³¹² judicial review of the award, decides that the Commission erred in some manner and remands for the calculation of a new award based on the court’s finding, and (2) when, as the result of a worsening, improvement, or termination of the employee’s disability, the Commission reopens the case and enters a new award to reflect the change in the employee’s condition.

LE § 9-736. In each of those situations, the question has arisen of whether or how the new award affects the compensation that was paid prior to entry of the new award in accordance with the award that was modified. We have dealt with that question before, and we are called upon in this case to deal with it again. Our answer in this case will be consistent with those given previously.

BACKGROUND In January, 2001, petitioner, Paul Del Marr, a master electrician employed by the Montgomery County Board of Education, suffered an accidental injury to his back while lifting a transformer in the course of his employment. Claiming an inability to continue working as a master electrician, Del Marr filed a claim for temporary total and permanent partial disability. 3 In May, 2002, the Commission, among other things, found that Del Marr had a 20% industrial loss of use of his body, half of which (10%) was attributable to the accidental injury and half of which (10%) was due to a preexisting condition. In consequence of those findings, the Commission entered a permanent partial disability award requiring the Board and its insurer, Montgomery County, to pay Del Marr $114 per week for 50 weeks, commencing as of March 23, 2001, which was when his temporary total disability ³¹³ ended. That award was a first tier award—less than 75 weeks.

In August, 2002, Del Marr began complaining of a significant increase in pain and, on the recommendation of his physicians, underwent corrective surgery in November, 2002. On January 9, 2003, pursuant to a stipulation by the parties, the Commission amended its May, 2002 award to find a 24% industrial loss of use of the body, 14% being due to the accidental injury, and to increase the permanent partial disability compensation to $114 per week for 70 weeks, subject to a credit “for monies previously paid” under the May, 2002 order. The new award, still less than 75 weeks, remained a first tier award, and, because the rate of weekly payment remained the same, no issue arose as to any retroactive effect of the new award. Payment was simply extended for 20 weeks.

The last payment under that order was made on February 5, 2003, based on Del Marr’s return to work on January 27, 2003. At some point, Del Marr filed another petition to reopen the case based on a worsening of his condition. After a hearing, the Commission entered a new (third) award on May 26, 2004, finding that Del Marr then had a 33% industrial loss of use of the body, 23% being due to the January, 2001 accidental injury. Compensation was set at $223 per week for a period of 115 weeks, commencing at the end of the compensation awarded under the January, 2003 order.

That constituted a second tier award—more than 75 but less than 250 weeks— and would call for an additional gross payment of $25,645 ($223 times 115 weeks). The new compensation ordered was subject to a credit “for payments made” under the May, 2002 and January, 2003 orders. Montgomery County, as the Board’s insurer, sought judicial review of the Commission’s order in the Circuit Court for Montgomery County. The County did not challenge the increase in the compensable disability to 23%, but rather the calculation of the credit allowed against the new award.

The County had already paid Del Marr compensation for 70 weeks ³¹⁴ at the rate of $114 per week—a total of $7,980—and it construed the Commission’s order as limiting the credit to that dollar amount. In that event, it would owe Del Marr an additional $17,665 ($223 per week times 115 weeks ($25,645) less a credit of $7,980). In a motion for summary judgment, the County contended that it was entitled to a credit based on the number of weeks for which it already paid compensation rather than the number of dollars it had paid. It insisted that the award be construed to require the payment of $223 per week for only 45 weeks (115 minus 70), a total of $10,035.

The difference amounts to $7,630. The Circuit Court agreed with the County, granted the motion for summary judgment, and entered an order remanding the case to the Commission for entry of an order requiring the Board to pay 115 weeks of compensation at the $223 rate subject to a credit “for the number of weeks paid under the Order dated May 2, 2002 as Amended under the Order dated January 9, 2003.” Del Marr appealed, arguing to the Court of Special Appeals, as he does now before us, that 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, the credit is to be made on the basis of dollars paid rather than the number of weeks for which compensation was paid. The intermediate appellate court disagreed and affirmed the judgment of the Circuit Court. See Del Marr v. Montgomery County, 169 Md.App. 187 , 900 A.2d 243 (2006).

We shall, in turn, affirm the judgment of the Court of Special Appeals. DISCUSSION We first dealt directly with the issue of how credits are to be applied when a new compensation award is entered in Philip Electronics v. Wright, 348 Md. 209 , 703 A.2d 150 (1997). In that case, the Commission found that, as a result of an accidental injury, the claimant suffered a permanent partial disability loss of 50% of the use of her body and entered an award of compensation of $178 per week for 333 weeks. That constituted a third tier award—250 weeks or more.

The ³¹⁵ Circuit Court, in an action for judicial review of that award, found that the claimant suffered only a 40% loss of use of her body. Consistent with that finding, the Commission, on remand, entered a new award of $144 per week for 200 weeks. That reduced the award to a second tier award—less than 250 weeks. In the new award, the Commission gave Philips a credit for the entire amount paid under the initial award.

The claimant, Wright, sought judicial review of that part of the new award, contending that Philips should be entitled to a credit based on weeks of prior payment, rather than the amount of dollars previously paid. The gross amount payable under the new award was $28,800 ($144 per week times 200 weeks). If, as the Commission ordered, Philips was entitled to a dollar credit, it would have no further obligation, as the amount previously paid exceeded that sum. If, on the other hand, Philips was entitled to a credit for the 147 weeks for which it had paid compensation under the initial award, rather than the amount actually paid under the award, it would still owe compensation at the $144 rate for an additional 53 weeks.

Philips complained that, if that were the case, it would owe $10,800 more than the aggregate amount of $28,800 due under the new award. We agreed with the conclusion of the Court of Special Appeals that the credit should be based on the number of weeks for which compensation had been paid under the initial order and not the dollar amount paid under that order. We regarded the issue as one of statutory construction and thus strictly one of law. After reviewing the same statutes at issue here—LE §§ 9-627 through 9-630—we declared that “[t]he plain language of the Act leads us to conclude that the Legislature expressed a commitment to the payment of permanent partial disability benefits based on a weekly framework, rather than focusing upon the total monetary value of such an award.” Id. at 221, 703 A.2d at 155 .

That framework governed the