Mayor of Baltimore v. Bowen

Wilner, J., delivered the opinion of the Court. This began as a workmen’s compensation case. The judicial phase of it commenced when claimant’s counsel, dissatisfied with the fee awarded them by the Workmen’s Compensation Commission, appealed to the Superior Court of Baltimore City seeking an order directing the Commission to award them a higher fee. The court was more than obliging; it not only ordered that the Commission award the higher fee sought by counsel, it also ordered the Commission to recalculate the underlying compensation award, which no one had asked it to do.

The employer — the Mayor and City Council of Baltimore — feels aggrieved and thus has brought this appeal. The Legal Setting To understand the issues presented to us, we must examine the interplay among the following provisions of the State’s workmen’s compensation law (Md. Code Ann. art. 101): ³⁷⁷ (1) By virtue of § 21 (a) (2) and (b) (4) of art. 101, firefighters employed by the Baltimore City Fire Department are employees covered by the workmen’s compensation law. (2) Section 36 (4), captioned "Other cases,” provides that, if an eligible employee suffers a compensable permanent partial disability other than of a type specifically enumerated in § 36 (3), the Workmen’s Compensation Commission (a) "shall determine the portion or percentage by which the industrial use of the employee’s body was impaired as a result of the injury,” and (b) "shall award compensation in such proportion as the determined loss bears to 500 weeks, the said compensation to be paid weekly at the rate of [2/3] of the [employee’s] average weekly wages, in no case to exceed [1/3] of the State average weekly wage as determined by the Department of Employment Security.” (3) Section 36 (4a) provides that, if, under § 36 (4), a person receives from one accident an award for 250 weeks or more, he is regarded as having a "serious disability.” In that event, "[t]he weeks for such award shall be increased by one-third” and "the compensation shall be for [2/3] of the [State] average weekly wages....” (4) Section 33 (c) provides that, if an employee (such as a Baltimore City firefighter) is covered under the Workmen’s Compensation Act by virtue of § 21 (a) (2), and his public employer provides retirement or disability benefits to him, "the benefit or benefits when furnished by the employer shall satisfy and discharge pro tanto or in full as the case may be, the liability or obligation of the employer ... for any benefit under this article.” However: (5) Section 64A (a) provides that any impairment of the health of a firefighter caused by certain specific conditions, including heart disease, which results in total or partial disability "shall be presumed to be compensable under this article”; and (6) Section 64A (b) provides that, in such a case, the firefighter ³⁷⁸ "shall receive such benefits as are provided for in this article in addition to such benefíts as he may be entitled to under the retirement system in which said fire fighter . .. was a participant at the time of his claim. The benefits received under this article, however, shall be adjusted so that the total of all weekly benefits shall not exceed one hundred percent of the weekly salary which was paid to said fire fighter....” (Emphasis supplied.) And finally: (7) Section 57 places the charging and collection of attorneys’ fees in compensation cases under the control of the Workmen’s Compensation Commission.

An attorney may not collect a fee "unless the same be approved by the Commission,” which has "full power to hear and determine any and all questions which may arise concerning legal services rendered in connection with any claim under this article....” Pursuant to that authority, the Commission has adopted a "Statement Of Policy For Approval Of Attorneys’ Fees” which is "to be used as a guide in determining the allowance and approval of attorneys’ fees.” Under the Statement of Policy, "maximum fees” for permanent partial cases are set as amounts "not to exceed” 20% of the first $7,000 of award, 15% of the amount of award between $7,000 and $25,000, and 10% of the amount of award exceeding $25,000. Factual Background Joseph Bowen was a firefighter employed by the Baltimore City Fire Department, having served in that capacity since 1959. On January 11, 1978 — near the end of a four-day tour of duty during which he was involved in some strenuous firefighting activity — he began to experience mild chest pains. The pain continued, and worsened, over the next two days; and, on January 13, he was admitted to the hospital where he was found to have "active coronary artery disease.” He never returned to active firefighting duty, ³⁷⁹ although he performed some limited light duty service for two weeks in May, 1978.

At the time of his cessation of active service in January, 1978, Bowen’s average weekly wage was $287. In May, 1978, he filed for a special disability pension under the City’s Fire and Police Employees Retirement System (Baltimore City Code, art: 22, § 34 (e)). He continued to receive his full salary through January 20, 1979; effective January 22, 1979, he began receiving the special disability pension in the amount of $243 per week. Meanwhile, in July, 1978, Mr. Bowen filed a claim for workmen’s compensation benefits, alleging "Heart disease pursuant to Section 64A.” On May 23, 1979, the Workmen’s Compensation Commission found that Bowen had sustained a permanent partial disability amounting to 50% industrial loss of use of the body as a whole by reason of a myocardial infarction; and, in accordance with §§ 36 (4a) and 64A (a), it awarded compensation at the rate of $135 per week, beginning January 16, 1978, "not to exceed the sum of $44,955.00 allowable under 'Other cases.’ ” 1 Although both parties were necessarily aware that appellee had been receiving special disability benefits under the City retirement system since January, 1979, the Commission made no "adjustment” for such benefits, and the City made no immediate complaint about the award.

On July 12,1979, the City suddenly discovered the double payments and, in accordance with § 64A (b), calculated that Bowen should have received only $44.03 per week as workmen’s compensation (average weekly wage of $287.19 less disability benefit of $243.16). Determining that he had already been overcompensated by $7,043, the City stopped all future compensation benefits until that overpayment had been recovered. Bowen initially raised no objection to the ³⁸⁰ City’s action; and indeed, in a letter to the Commission on November 28, 1979, his counsel agreed that Bowen’s "weekly compensation benefits should be $44.03 per week and the previous awards of compensation should properly be corrected to reflect same.” On July 17, 1979 — five days after receiving the City’s communication regarding the double payments — counsel submitted a petition to the Commission seeking the maximum fee of $6,095, based upon the aggregate potential award of $44,955 (20% of first $7,000 + 15% of next $18,000 + 10% of balance of $19,955). No immediate action was taken with regard to that petition.

On April 9, 1981 — more than a year after a hearing on the matter — the Commission determined that the fee should not be based on the $44,955, but only on $14,662 ($44.03 x 333 weeks), producing a fee of only $2,549. The Commission reached that determination by regarding the special disability benefits as a "set-off,” as would be the case under § 33, and thus concluded that "[t]his award to the claimant, if being paid by the employer, self-insurer, is 100% of the salary less the pension benefits.” Cited as authority for this approach were "Prince George’s County vs. Peissner, 37, Md. 124 (1977) and Hoffman vs. Liberty Mutual, 232, Md., 51, 191 A, 2575 (1963).” 2 Although the rationale used by the Commission with respect to the counsel fee would also support the City’s position regarding the award itself, the April, 1981 order related only to the fee and did not purport to alter the May 23,1979, compensation award. It was thus counsel, and not Mr. Bowen, who regarded themselves as aggrieved; and it was they, and not Bowen, who filed a petition for appeal in the Superior Court of Baltimore City complaining of the Commission’s failure to award them the entire $6,095. Bowen was sent a copy of his attorneys’ petition, but he filed ³⁸¹ no answer and declined to participate in the judicial proceeding, perhaps upon the strength of counsel’s assertion in paragraph 7 of the petition that he (Bowen) was entitled to receive the entire $44,955 awarded by the Commission.

The City answered the petition, averring that Bowen was entitled to receive only $14,662, and that the counsel fee should therefore be limited to $2,549. The court obviously regarded the issue before it as involving not just the counsel fee but also the compensation award itself. Disagreeing with the Commission’s approach and concluding that Feissner was inapplicable, the court, by order of June 4, 1982, (1) found that Bowen was entitled to the entire $44,955, without set-off, said amount to be paid at the rate of $44.03 per week (for 1,021 weeks), in addition to the special disability payments, and (2) remanded the case to the Commission with directions to award a counsel fee in the amount of $6,095, such fee to be paid "in a lump sum without discount, and to be deducted from the final weeks of compensation payable to the Claimant. ...” The City has brought this appeal from that order, presenting to us, in a brief and appendix that fail of compliance with Maryland Rules 1028 and 1031a in several respects, 3 the argument that "Liability under an Article 101, Md. Code, Sec. 64-A claim is satisfied by combined weekly pension and compensation benefits that do not exceed the average weekly wage, and are paid only for the periods of weeks provided in the benefit schedule of Article 101 Md. Code, Sec. 36.” ³⁸² Discussion The issue presented to us by the City — how §§36 and 64A should be harmonized — is one of first impression. It is not necessarily governed by Feissner v. Prince George’s Co., supra, 282 Md. 413 , as the Commission supposed.

Feissner dealt with § 33 of art. 101, which clearly provides for a set-off or reduction in compensation benefits; § 64A (b) arguably provides for a different form of adjustment. Unfortunately, this important issue is not properly before us because it was not properly before the Superior Court. As we have noted, the appeal to the Superior Court was taken by Bowen’s counsel, not by Bowen'. Counsel were identified as the petitioners and they signed the petition as such.

They complained only of the attorneys’ fee, and the only substantive relief requested in the petition was that the court . "review the decision of the Commission of April 9, 1981, and find that the Commission erred in its Order relating to the award of an attorneys fee to your Petitioners, and that this Honorable Court direct the Workmen’s Compensation Commission to approve an attorneys fee to Claimant’s counsel in the amount of $6,095.00.” The Commission’s order of April 9, 1981, as we have also noted, related only to the counsel fee, and did not purport to alter the May, 1979 compensation award. The authority of a reviewing court in compensation cases is broader than in most other administrative appeals (see Maryland Bureau of Mines v. Powers, 258 Md. 379 (1970); Montgomery Ward & Co. v. Bell, 46 Md.App. 37 (1980)); but that authority does not extend beyond the matters actually presented in the petition. Maryland Rule