Jung v. Southland Corporation

EYLER, Judge. We are called upon to interpret the Workers’ Compensation Act and to decide whether the Workers’ Compensation Commission has the authority to modify an injured employee’s “average weekly wage,” based on an increase in wages subsequent to the accidental injury and subsequent to the initial determination of “average weekly wage.” For the reasons set forth below, we affirm the decision of the trial court and hold that “average weekly wage” cannot be modified based on an actual increase in wages occurring subsequent to the accidental injury. Facts Appellant, Peter Jung, filed a Workers’ Compensation claim on August 3, 1992, as the result of an accidental injury sustained on June 30, 1992 while in the course of employment. On October 27,1992, the Commission awarded temporary total disability benefits from June 30,1992, continuing until December 21,1992, at the rate of $193 per week based on an average ⁵⁴⁴ weekly wage of $288.12.

The claim was not contested by appellees, Southland Corporation, employer, and American Protection Insurance Company, insurer. In December, appellant returned to work. On July 28,1995, appellant began losing time from work due to the 1992 injury. Appellees began paying temporary total benefits in the amount of $193 per week, the same amount as previously determined.

On November 17,1995, appellant filed Issues with the Commission, seeking an upward adjustment of his average weekly wage to reflect his most recent hourly rate, pursuant to Md.Code Ann., Labor & Employment Art. § 9-622 (1991 Repl.Vol., 1992 Supp.). 1 After a hearing before the Commission on January 22, 1996, the Commission issued an order dated January 29, 1996, allowing the claim for temporary total benefits from July 28, 1995 and continuing during the period of temporary total disability. In doing so, the Commission upwardly adjusted appellant’s average weekly wage based upon appellant's current wages, finding that the “average weekly wage shall be $320.75 pursuant to § 9-602[ (a) ](3) of the Labor Article,” and awarded benefits in the amount of $214 per week. Because of the modification, appellees appealed to the Circuit Court for Montgomery County and moved for partial summary judgment on the ground that the Commission lacked authority under the law to adjust the average weekly wage based on appellant’s current wages. After appellant’s response and a hearing, the trial court granted the motion.

This appeal followed. Discussion This is a case of first impression in Maryland and has been dealt with infrequently in other jurisdictions. As in all cases ⁵⁴⁵ of statutory interpretation, we seek to determine the intention of the Legislature. Appellant argues that the Commission has discretion to increase appellant’s previously determined average weekly wage pursuant to the authority to reopen a claim contained in § 9-622(a) and to modify an award pursuant to § 9-736(b).

Section 9-622(a) provides: Amount of payment. — If, under an initial claim filed on or after January 1,1988, temporary total disability benefits are reopened under § 9 — 736(b) of this title, the employer or its insurer shall pay the covered employee compensation that equals two-thirds of the average weekly wage of the covered employee, but (1) does not exceed the lesser of: (i) the average weekly wage of the State on the date of reopening; or (ii) 150% of the initial award; and (2) is not less than the initial award. Appellant asserts that the January 29, 1996 order constitutes a “reopening” within the meaning of § 9-622 2 and that a finding of average weekly wage can be modified pursuant to § 9 — 736(b), which provides: Continuing powers and jurisdiction; modification. — (1) The Commission has continuing powers and jurisdiction over each claim under this title; (2) Subject to paragraph (3) of this subsection, the Commission may modify any finding or order as the Commission considers justified. (3) Except as provided in subsection (c) of this section, the Commission may not modify an award unless the modifi ⁵⁴⁶ cation is applied for within 5 years after the last compensation payment. Pointing to the broad language contained in § 9-736(b)(2), appellant explains that the modified “finding” was the average weekly wage and the modified “order” was the compensation rate.

Appellant concludes that both modifications are within the discretion of the Commission, subject to review only for an abuse of discretion. Central to appellant’s argument is the definition of “average weekly wage,” as the rate of compensation for temporary total disability is statutorily set at an amount equal to either two-thirds of this basis or to the average weekly wage of the State, 3 whichever is lower. See § 9-621. Average weekly wage is defined within § 9-602(a), which provides: (a) Computation — In general. — (1) Except as otherwise provided in this section, the average weekly wage of a covered employee shall be computed by determining the average of the weekly wages of the covered employee; (1) when the covered employee is working on full time; and (ii) at the time of: 1. the accidental personal injury; or 2. the last injurious exposure of the covered employee to the hazards of an occupational disease.

(2) For purposes of a computation under paragraph (1) of this subsection, wages shall include: (i) tips; and (ü) the reasonable value of housing, lodging, meals, rent, and other similar advantages that the covered employee received from the employer. (3) If a covered employee establishes that, because of the age and experience of the covered employee at the time of the accidental personal injury or last injurious exposure to ⁵⁴⁷ the hazards of the occupational disease, the wages of the covered employee could be expected to increase under normal circumstances, the expected increase may be taken into account when computing the average weekly wage of the covered employee under paragraph (1) of this subsection. Relying on § 9-602(a)(3), appellant argues that, upon a reopening, the Commission is authorized to hear evidence concerning an increase in wages of a covered employee. Exercising the discretion conferred by § 9 — 736(b), appellant asserts, the Commission may choose to revise the claimant’s average weekly wage upward to include any increase in wages that has occurred since the time of the accidental injury.

As further support, appellant argues that, if the Commission were not allowed to recompute average weekly wage, § 9-622 would have no purpose other than to benefit high wage earners whose average weekly wage was greater than the average weekly wage of the State, forcing the Commission initially to award a lower percentage of their weekly wage. Appellant sees this as leading to unfair results, for upon reopening, a high wage earner could seek a modification up to the amount of the State average weekly wage as of the date of the reopening or 150 per cent of the initial award. See § 9-622(a)(1). A worker injured while receiving a low wage, and whose wages have increased substantially since the initial claim, cannot be given the benefit of that increase.

In order to prevent such an unjust result, appellant asserts that § 9-622 and § 9-736 should be construed to allow the Commission the authority to modify a finding of average weekly wage based upon the current wage on the date of reopening. Citing Superior Builders, Inc. v. Brown, 208 Md. 539 , 119 A.2d 376 (1956), appellant argues that its interpretation of the statute is consistent with the public policy of this State and with the principle that the Worker’s Compensation Act is to be interpreted liberally. If there appears to be a conflict in the statute, or at the very least an ambiguity, appellant argues that it must be resolved in favor of the claimant. See Lisow- ⁵⁴⁸ sky v. White, 177 Md. 377 , 9 A.2d 599 (1939); Kraushar v. Cummins Const.

Corp., 180 Md. 486 , 25 A.2d 439 (1942). While we agree that the Workers’ Compensation Act should be liberally construed in favor of the claimant, Luby Chevrolet, Inc. v. Gerst, 112 Md.App. 177, 186 , 684 A.2d 868 (1996), when the language of the compensation statute “is plain and free from ambiguity and expresses a definite and sensible meaning, the courts are not at liberty to insert or delete words with a view toward making the statute express an intention which is different from its plain meaning.”