Fedorowicz v. State Retirement & Pension System

ADKINS, Judge. In this appeal from the denial of accidental disability retirement benefits, we interpret the following limitations period established by Md.Code (1993, 2004 Repl.Vol.), section 29-104(d)(2) of the State Personnel and Pensions Article (SPP): The Board of Trustees [for the State Retirement and Pension System of Maryland] may not accept an application for accidental disability filed by a member or former member more than 5 years after the date of the claimed accident. Guided by precedent construing an analogous statute governing similar claims by Baltimore City employees, we shall ²⁰⁰ hold that the five year limitations period applies to state employees whose accidental disability retirement applications were initiated or submitted by their employer agency. In addition, we shall hold that the five year deadline may not be extended based upon when the disability was discovered.

FACTS AND LEGAL PROCEEDINGS As a civilian employee of the Maryland State Police (MSP), appellant Zbigniew Fedorowiez was a “member” of the Employee’s Pension System (EPS), and therefore eligible for retirement benefits under the State Retirement and Pension System of Maryland (SRPS). Fedorowiez, an automotive specialist, suffered a fractured right shoulder on July 19, 1996, in an accident that occurred while he was replacing a tire at the MSP Garage Barrack. Following surgery on July 26, he returned first to light duty, then to regular duty, by October 30. Pain continued in his injured shoulder throughout the time he was working full-time.

His arm was re-fractured, allegedly “as a result of the July 1996 accident,” leading to additional surgery in May 2000. Fedorowiez returned to light duty on September 11, 2000. He performed eight months of temporary light duty assignments. But Fedorowiez could no longer raise his right arm above his shoulder or “push, twist, use force to loosen or tighten bolts, nuts, or lift heavy objects” with that arm.

He acknowledges that these tasks are essential to performing the full duties of an automotive specialist. The MSP, however, did not have a permanent light duty position available for Fedorowiez. In April 2001, MSP Medical Director Dr. Phillip Phillips summoned Fedorowiez to a meeting. According to Fedorowicz, 1 Dr. Phillips advised that he “would have no problem” recommending him for an accidental disability retirement.

To process the claim, Phillips told Fedorowiez, he would need a ²⁰¹ functional capabilities exam, which could be performed by-physicians designated by the MSP. In Fedorowicz’s presence, Phillips instructed MSP’s Disability Retirement Coordinator, Michelle Miller, “to prepare the necessary paperwork in conjunction with the request for accidental disability retirement.” Fedorowicz “understood this conversation between Dr. Phillips and Ms. Miller to mean that Ms. Miller’s office would be responsible for the filing of any disability claim on my behalf.” On May 21 and June 26, 2001, Fedorowicz underwent two medical exams to which he had been referred by Dr. Phillips. The exams were arranged and paid for by the MSP. “On approximately July 3, 2001,” Miller telephoned Fedorowicz to tell him “she had not yet received the results from the doctors.” She asked Fedorowicz to call those doctors to “request that their offices forward the evaluations to the MSP.” Fedorowicz did so, then informed Miller that both doctors said that their reports were on their way. When Fedorowicz asked what he should do next, Miller told him to “just wait.” The exam results indicated that Fedorowicz could not perform the duties necessary to return to full duty as an automotive specialist.

Fedorowicz was called in October to meet with managers from the MSP’s human resources and motor vehicle departments. At an October 17, 2001 “Options” meeting, MSP officials told Fedorowicz that he could no longer remain on light duty status. Fedorowicz was given three alternatives: (1) resign, (2) work for another six months while he applied for disability retirement, or (3) be terminated. Fedorowicz chose the second option.

Fedorowicz executed his Statement of Disability on October 15, 2001. At the bottom of page one, the forms necessary to complete an accidental disability retirement are listed, preceded by the following notice: IMPORTANT: The Retirement Agency’s counselors and your Agency’s retirement coordinators will help you to complete and forward the following forms, but, ultimately, ²⁰² it is your responsibility to insure that all of the following forms are completed and submitted with this form. Fedorowicz returned the form to Miller, who signed it and dated it October 22, 2001. The Board received Fedorowicz’s application on October 29, 2001, five years and three months after the accident in which he was injured.

Fedorowicz continued to work until July 2002. By letter dated February 6, 2002, the Board of Trustees of the State Retirement and Pension System (SRPS and the Board), appellee, advised Fedorowicz that it could not consider him for accidental disability benefits because his application was filed after the five year deadline established in SPP section 29-104(d)(2). Instead, the Board considered the claim as one for ordinary disability retirement. Fedorowicz was ultimately granted an ordinary disability retirement, which does not require a showing that the disability was caused by a work-related accident, but it provides lower benefits.

Fedorowicz obtained an administrative review of the Board’s refusal to consider his application. The ALJ granted summary decision on the basis of the five year limitations period in SPP section 29-104(d)(2). The Circuit Court for Montgomery County affirmed. Fedorowicz noted this timely appeal, raising several issues that we rephrase as two: I. Is the five year limitations period in SPP section 29-104(d)(2) inapplicable when the accidental disability retirement claim is initiated and/or submitted by the employer agency rather than by the employee?

II

Is the five year limitations period in SPP section 29-104(d)(2) tolled until the employee discovers his disability? We answer “no” to both questions and affirm the judgment. DISCUSSION Review Of The Board’s Decision We must review the Board’s decision not to consider Fedorowicz’s accidental disability retirement application to deter ²⁰³ mine if it is premised upon an error of law. See Marzullo v. Kahl, 366 Md. 158, 171 , 783 A.2d 169 (2001).

Here, the dispositive issue is whether the Board properly interpreted and applied SPP section 29-104(d)(2). We give significant weight and deference to the Board’s interpretation of statutes that it regularly applies. See Md. Transp. Auth. v. King, 369 Md. 274, 288 , 799 A.2d 1246 (2002).

We also presume that the Board’s decision is prima facie correct. See Marsheck v. Bd. of Trustees of the Fire & Police Employees’ Retirement Sys. of Baltimore City, 358 Md. 393, 402 , 749 A.2d 774 (2000). In construing a statute, we seek to determine and implement the General Assembly’s intent. See id.

We begin with the statutory language, reading it in light of the entire statutory scheme. See id. at 403 , 749 A.2d 774 . If the meaning of the words “is plain and definite, our inquiry as to the legislature’s intent will end[.]” Id. (citation omitted).

Accidental Disability Retirement Title 29 of the State Personnel and Pensions Article governs disability benefits for members of the Employees’ Retirement System covering state employees like Fedorowiez. The Board must grant accidental disability retirement allowances to a member if: (1) the member is totally and permanently incapacitated for duty as the natural and proximate result of an accident that occurred in the actual performance of duty at a definite time and place without willful negligence by the member; and (2) the medical board certifies that: (i) the member is mentally or physically incapacitated for the further performance of the normal duties of the member’s position; (ii) the incapacity is likely to be permanent; and ²⁰⁴ (iii) the member should be retired. SPP § 29-109(b). But “[bjefore the Board of Trustees grants a retirement allowance for a disability, an application must be completed and submitted to the Board of Trustees in accordance with §§ 29-103 and 29-104 of this subtitle.” SPP § 29-102. “Subject to § 29-104 of this subtitle,” applications “may be submitted (1) by a member; (2) by a former member; or (3) for a member,” by “the member’s department head” in the event that the “member is unable to apply[ .]” SPP § 29-103(a)-(b)(2).

Section 29-104, as set forth above, prohibits the Board from “accepting] an application for accidental disability filed by a member or former member more than 5 years after the date of the claimed accident.” SPP § 29-104(d)(2). The current language of this subsection reflects the General Assembly’s decision to repeal a previous exception that allowed the Board to accept an accidental disability retirement application if the member ... prove[d] to the satisfaction of the medical board that failure to submit an application within the required 5 years was attributable solely to physical or mental conditions that resulted directly from the event or act of duty that caused the disability. See 1997 Md. Laws, ch. 158 (amending former SPP § 29-104(d)(2)). Marsheck And Mitchell Although there is no reported Maryland decision construing the limitations period in SPP section 29-104(d)(2), there are two cases that interpret and apply an analogous accidental disability retirement statute enacted by the Baltimore City Council for the benefit of City employees. 2 We find both cases instructive. ²⁰⁵ In Marsheck v. Bd. of Trustees of the Fire & Police Employees’ Retirement Sys. of Baltimore City, 358 Md. 393 , 749 A.2d 774 (2000), the claimant police officer suffered an on-the-job back injury that required continuous medical treatment, including three surgeries, multiple epidurals, and physical therapy.

Despite her efforts to continue employment, her condition steadily worsened until she could no longer continue to work on either full or light duty. She was not certified as permanently disabled until seven days before the five year limitations period expired. She mailed her application the day before, but it was not docketed as received until 13 days after the period expired. The Court of Appeals held that five years from the date of injury meant five years from the date on which the claimant suffered an accidental back injury, even though it took some time for that injury to progressively worsen to the point that she was forced to seek special disability retirement (the City’s analog to accidental disability retirement).

See id. at 409 , 749 A.2d 774 . Thus, the five year limitations period barred her claim even if it was filed only one day late. Acknowledging the harsh result, the Court of Appeals explained that the task of balancing countervailing State interests in recompense and repose belongs to the legislature rather than the judiciary. “Statutes of limitations re-enforce predictability, which is a cornerstone of such benefit statutes.” Id. at 413 , 749 A.2d 774 . Although disability retirement statutes are remedial in nature, courts will “ ‘refuse to give statutes of limitations a strained construction to evade their effect.’ ” Id. at 404 , 749 A.2d 774 (citation omitted).

That is because [sjtatutes of limitations are also remedial and grounded upon sound public policy. Tn addition to serving important societal benefits, such as judicial economy, they are de ²⁰⁶ signed to balance competing interests between potentially adverse parties.... The legislature, in drafting such legislation, implicitly recognizes that as time passes, difficult evidentiary issues arise, such as proof of the cause of injury, faded memories, and the availability of witnesses. Furthermore, without closure on the filing of such claims, potential defendants are often faced with uncertainty that may affect their future financial viability.

By closing the window, the statute of limitations grants repose to potential defendants that would be disadvantaged unfairly by stale claims due to unreasonably long delay. The final result is that the “right to be free of stale claims in time comes to prevail over the right to prosecute them.” ... [Tjhere is no magic to the window of time determined by the legislature. “It simply represents the legislature’s judgment about the reasonable time needed to institute suit.” Id. at 404-05 , 749 A.2d 774 (citations omitted). For that reason, courts are not at liberty to “modify the disability system ad hoc to suit our sensibilities and pivot around the legislature’s true intentions.” Id. at 414 , 749 A.2d 774 . The Court affirmed the denial of special disability benefits, while “acknowledging] that permanent disability may occur after the five year limitation period and that in some circumstances, such as [Marsheck’s] situation, the strict application of the statute results in excluding her from a disability benefit that she might very well deserve in an unregulated universe.” Id. at 413-14 , 749 A.2d 774 .

Bd. of Trustees for the Fire and Police Employees’ Retirement Sys. of Baltimore City v. Mitchell, 145 Md.App. 1 , 800 A.2d 803 (2002), illustrates how difficult application of such a five year statute of limitations can be. In that case, a firefighter who cleared toxic substances for the benefit of those who came behind him was diagnosed with a malignant esophageal tumor in May 1993. After surgery and nearly five years of “clear” checkups, he was diagnosed with pancreatic cancer in April 1998. He filed a special disability retirement claim on September 8, 1998. ²⁰⁷ On appeal from the grant of special disability benefits, we vacated the judgment and remanded.

See id. at 6 , 800 A.2d 803 . The panel unanimously held that cancer qualifies as an “injury” under the statutory scheme. See id. at 15 , 800 A.2d 803 . A majority held that it was unclear whether Mitchell’s pancreatic cancer was a new injury in that it was a primary cancer, or whether it was a manifestation of the original 1993 injury in that it was a metastasized cancer.

See id. at 17 , 800 A.2d 803 . We remanded for that factual determination, instructing that if it “was metastatic, having originated in Mitchell’s esophagus, we