Mayor of Baltimore v. Cassidy

BELL, Judge. We granted certiorari to determine whether the loss of two eyes in a single accident, which does not result in permanent total disability, is compensable pursuant to Maryland Code (1991) § 9-627(d)(l)(vi), of the Labor and Employment Article, at double the rate for the loss of one eye, or under § 9-627(k), “Other Cases.” The Workers’ Compensation Commission (“the Commission”) determined that such a loss, together with other injuries sustained in the same accident, constituted an 85% industrial loss of use of the body, and, thus, was compensable under the latter provision. Neither the Circuit Court for Baltimore City nor the Court of Special Appeals agreed, both holding that the former provision was as applicable to the ⁹¹ provision of the loss of two eyes as it was to one. We shall reverse.

I. On October 22, 1987, 1 the respondent, Eugene Cassidy, a Baltimore City Police officer, was shot in the line of duty and seriously injured. He sustained a complete loss of the senses of sight, taste, and smell. In addition, a bullet remains lodged in his head. The respondent is currently employed by the Police Department as an instructor at the Police Academy at a salary exceeding the amount he earned at the time of his injury.

Upon the respondent’s application for workers’ compensation, the Commission held a hearing to determine the nature and extent of the respondent’s permanent partial disability. At that hearing, neither the fact nor the nature of the respondent’s injuries was disputed. Indeed, the petitioner, the May- or and City Council of Baltimore, stipulated that the respondent was 100% blind and the respondent informed the Commission of his other injuries. Proceeding under “Other Cases,” the Commission determined that the respondent’s permanent partial disability amounted to an 85% industrial loss of use of the body.

It awarded the respondent compensation at the rate of $244.00 per week for 567 weeks. 2 ⁹² The respondent sought judicial review of the award in the Circuit Court for Baltimore City, challenging, in particular, the Commission’s treatment of his loss of vision claim. He filed in that court a “Motion for Partial Summary Judgment and Remand to the Commission” arguing, in effect, that the loss of two eyes is a scheduled loss, as a matter of law, and, thus, should have been calculated pursuant to § 9-627(d)(l)(vi). He sought an award of 667 weeks for his loss of vision. 3 Although conceding that his other losses — taste, smell, and head injury — were properly considered under “Other Cases,” but noting that the Commission’s order was silent as to them, the respondent sought remand of the case to the Commission for a determination of the extent of permanent partial disability attributable to the other losses. The circuit court granted the respondent’s motion in part. 4 It awarded permanent partial disability “amounting to 100% loss of vision in both eyes,” calculated pursuant to § 9-627(d)(l)(vi) 5 and remanded the case to the Commission to determine “the amount of permanent partial disability the claimant sustained, if any, to his head and from the loss of ⁹³ taste and sense of smell.” 6 The petitioner appealed to the Court of Special Appeals.

After that court affirmed the judgment of the circuit court, City of Baltimore v. Cassidy, 99 Md.App. 465 , 637 A.2d 897 (1994), we granted the City’s petition for certiorari to consider the important issue this case presents.

II

Whether the loss of two eyes, as contrasted to the loss of one eye, is a scheduled loss is a matter of statutory construction, the object of which is to discern and effectuate the intention of the Legislature. Gargliano v. State, 334 Md. 428, 435 , 639 A.2d 675, 678 (1994); Motor Vehicle Admin. v. Seidel Chevrolet, Inc., 326 Md. 237, 248 , 604 A.2d 473, 479 (1992); Mustafa v. State, 323 Md. 65, 73 , 591 A.2d 481, 485 (1991). While the search for legislative intent begins, and ordinarily ends, with the words of the statute under review, Harris v. State, 331 Md. 137, 145 , 626 A.2d 946, 950 (1993)— where the ordinary and common meaning of the words, see Dickerson v. State, 324 Md. 163, 171 , 596 A.2d 648, 652 (1991); Cunningham v. State, 318 Md. 182, 185 , 567 A.2d 126, 127 ⁹⁴ (1989), is clear and unambiguous, it is ordinarily unnecessary to go further, State v. Thompson, 332 Md. 1, 7 , 629 A.2d 731, 734 (1993); Mustafa, 323 Md. at 73 , 591 A.2d at 485 — because it is part of the context, a related statute that fairly bears on the fundamental issue of legislative purpose or goal must also be considered. Popham v. State Farm Mutual Insurance Company, 333 Md. 136, 148 , 634 A.2d 28, 34 (1993); GEICO v. Insurance Commissioner, 332 Md. 124, 131-32 , 630 A.2d 713, 717 (1993).

The statute at issue in this case is § 9-627. Pertaining to the duration of compensation payable with respect to a permanent partial disability, it provides, in pertinent part: (a) In General. — If a covered employee is entitled to compensation for a permanent partial disability under this Part IV of this subtitle, the employer or its insurer shall pay the covered employee compensation for the period stated in this section. (b) Loss of thumb, finger, or great toe. * * * * * * (c) Loss and loss of use of phalanxes and digits. ❖ * * * * * (d) Loss of other toes, hand, arm, foot, leg, eye, hearing, or septum.— (1) Compensation shall be paid for the period listed for the loss of the following: # * * * * * (vi) An eye, 250 weeks. * # * * * * (e) Permanent loss of use of hand, arm, foot, leg, or eye.— The permanent loss of use of a hand, arm, foot, leg, or eye shall be considered equivalent to the loss of the hand, arm, foot, leg, or eye. (f) Partial loss of vision.— ⁹⁵ (k) Other Cases. — (1) In all cases of permanent partial disability not listed in subsections (a) through (j) of this section, the Commission shall determine the percentage by which the industrial use of the covered employee’s body was impaired as a result of the accidental personal injury or occupational disease.

(2) In making a determination under paragraph (1) of this subsection, the Commission shall consider factors including: (i) the nature of the physical disability; and (ii) the age, experience, occupation and training of the disabled covered employee when the accidental personal injury or occupational disease occurred. (3) The Commission shall award compensation to the covered employee in the proportion that the determined loss bears to 500 weeks. ****** Provisions relating to permanent total disability also are relevant to section 9-627’s interpretation. Section 9-636, captioned “Determination of disability; presumption,” provides: (a) Determination of disability. — Except as provided in subsection (b) of this section, a permanent total disability shall be determined in accordance with the facts in each case. (b) Presumption. — Absent conclusive proof to the contrary, the loss or loss of use of any of the following constitutes a permanent total disability: (1) both arms; (2) both eyes; (3) both feet; (4) both hands; (5) both legs; or (6) a combination of any 2 of the following: (i) an arm; (ii) an eye; (iii) a foot; ⁹⁶ (iv) a hand; and (v) a leg.

Section 9-637 prescribes the amount and duration of payments to a permanently totally disabled employee. It provides that such employee shall receive two-thirds of his or her average weekly wage, not to exceed $45,000.00, except that such payments are to continue during the period of permanent total disability. Section 9 — 627(b)—(j) prescribes the compensation for the loss or loss of use of certain parts of the body. Subsection (d), like subsection (b), speaks in terms of a specific body part, for the loss or loss of use of which compensation is payable, and states what that compensation is.

Thus, in addition to “an eye,” subsection (d) addresses “one of the toes other than the great toe,” a hand, an arm, a foot, and a leg. Similarly, subsection (b) enumerates the compensation for a thumb, a 1st finger, a 2nd finger, a 3rd finger, a 4th finger, and a great toe. Subsection (e) also refers to the body parts in the singular. When more than one body part is meant, that is clearly stated.

See subsection (d)(2)(ii) prescribing the compensation for “the total loss of hearing of both ears;” subsection (c)(3) relating to “2 or more digits or 1 or more phalanxes of 2 or more digits of a hand or foot.” It is significant that, while § 9-627 specifically addresses partial loss of vision, it does not even remotely address the total loss of vision. See subsection (f). Unlike when the loss is a scheduled loss, in the case of “Other Cases” the nature of the physical disability alone is not dispositive. Rather, taking it into account, along with the specific occupational characteristics of the claimant, the Commission is required to determine the extent to which the specific physical disability impairs the industrial use of the claimant’s body.

See subsection (k).

III

In addition to being blind, having lost the sight in both his eyes as a result of being shot, the respondent also lost his ⁹⁷ sense of smell and taste and the bullet is still lodged in his head. The respondent acknowledges that the extent of permanent partial disability as a result of the latter three injuries must be calculated pursuant to “Other Cases.” He argues, however, that compensation payable with respect to the loss of his eyes must be determined by reference to § 9 — 627(d)(1)(vi). The Court of Special Appeals agreed. Both rely heavily on the principle that the Workers’ Compensation Act should be construed liberally in favor of the injured employee.

The Court of Special Appeals was also persuaded by “the fact that the injured employee receives greater compensation under the circuit court’s interpretation of the statute than the Commission’s interpretation,” and “that the Commission and reviewing court have discretion to consider each injury resulting from a single accident as a product of scheduled specific injuries, the body as a whole under the “Other Cases” provision or a combination of both.” Cassidy, 99 Md.App. at 475 , 637 A.2d at 902 . Considered in light of the broad standard applicable to circuit court review of Commission decisions, the intermediate appellate court concluded that the circuit court did not err. Id. at 475-76 , 637 A.2d at 902 .

IV

It is well settled, as the Court of Special Appeals recognized, Cassidy, 99 Md.App. at 469 , 637 A.2d at 899 , that the Workers’ Compensation Act “ ‘should be construed as liberally in favor of injured employees as its provisions will permit in order to effectuate its benevolent purposes. Any uncertainty in the law should be resolved in favor of the claimant’ ” (quoting Victor v. Proctor & Gamble Mfg. Co., 318 Md. 624, 629 , 569 A.2d 697, 700 (1990)). It is likewise well settled, as the Court of Special Appeals also acknowledged, 99 Md.App. at 469 , 637 A.2d at 899 , that the court may not disregard the plain meaning of the Act in the name of liberal construction, (quoting C & R Contractors v. Wagner, 93 Md.App. 801, 808 , 614 A.2d 1035, 1038 (1992), cert. denied, 329 Md. 480 , 620 A.2d 350 (1993)). ⁹⁸ There is nothing ambiguous or uncertain about § 9-627 as it relates to the loss of two eyes.

Indeed, its provisions are clear, straightforward, and unambiguous. As we have seen, subsections (b)-(j) contain provisions pertaining to specified body parts, including subsection (d)(l)(vi), which lists the compensation payable for the loss of “an eye.” Subsection (k) applies to those “cases of permanent partial disability not listed in subsections (a) through (j) of this section.” Thus, unless the loss of two eyes is in the schedule for specific injuries, it must be determined pursuant to subsection (k). The loss of two eyes very clearly is not within subsection (d)(1)(vi): “an eye” is not the same as two eyes. See Dept. of Correction v. Johnson, 222 Md. 139 , 159 A.2d 658 (1960).

Not only is this clear from the plain language, but it is clear from the context as well. Section 9-627 pertains to permanent partial disability. The loss of two eyes, in the absence of conclusive proof to the contrary, is presumptively a permanent total disability. See § 9-636(b).

It is undisputed, and for good reason, that the respondent is not permanently totally disabled. Permanent total disability envisions a condition in which a claimant is incapable of doing work of any kind, and not just the kind that the claimant was accustomed and qualified to do at the time of the accident. Montgomery County v. Buckman, 333 Md. 516, 528 , 636 A.2d 448, 454 (1994); Mureddu v. Gentile, 233 Md. 216, 220 , 196 A.2d 82, 84 (1964); Jewel Tea Company v. Blamble, 227 Md. 1, 3 , 174 A.2d 764, 765 (1961); Congoleum Nairn, Inc. v. Brown, 158 Md. 285, 287 , 148 A. 220, 221 (1930). While it does not mean that the claimant must be utterly and abjectly helpless, it does mean that he or she is able to perform services so limited in quality, dependability, or quantity, that a reasonably stable market for them does not exist.

Babcock & Wilcox, Inc. v. Steiner, 258 Md. 468, 473-74 , 265 A.2d 871, 874-75 (1970); Dent v. Cahill, 18 Md.App. 117, 126-27 , 305 A.2d 233, 238-39 (1973). Although the respondent is blind and the loss or loss of use of both eyes presumptively renders the employee permanently totally disabled, that pre ⁹⁹ sumption has been conclusively rebutted in the case sub judice. The respondent is gainfully employed as an instructor at the Police Academy, earning a salary in excess of that he earned prior to the accident. Clearly, therefore, the respondent is not incapable of performing work of any kind and there is a market for his services.

If the respondent is not permanently totally disabled, then, he must be permanently partially disabled and, so, §' 9-627 must apply. The only question is how the extent and nature of that disability are to be determined and how is the compensation payable in respect of it to be calculated? V. The issue presented in this case was addressed in Johnson, supra, albeit the loss involved in that case was the claimant’s thumbs, rather than his eyes. There, the claimant sustained an accidental injury resulting in the traumatic amputation of the terminal phalanx of each of his thumbs.

He was awarded permanent partial disability amounting to a 25% industrial loss of use of the body under “Other Cases.” The Baltimore City Court 7 affirmed the award, rejecting the employer’s contention that it should have been made for a “scheduled injury.” The employer made the same argument in this Court. We stated the issue as follows: “Whether the loss, or loss of use, of both thumbs is to be compensated for under subsection (3) [of § 36(3), the predecessor to § 9-627(b) ] by multiplying by two the scheduled allowance for the loss of one thumb, or whether the Commission, in its discretion, might allow compensation in a larger amount under the “Other Cases” provisions of subsection (4).” Id., 222 Md. at 140-41 , 159 A.2d at 659 . Affirming, we stated: We conclude that the amputation of both thumbs is not within the schedule of specific disabilities contained in subsection (3) of Section 36 of the Act and that it falls within ¹⁰⁰ subsection (4) of that Section, the “Other Cases” provision of our statute. Id. at 149 , 159 A.2d at 664 .

In rejecting the argument that the schedule’s reference to a body part in the singular was “intended to establish a unit price or rate and to limit recovery in the case of each member, to a fixed number of weeks, multiplied by a fixed percentage of the average weekly wage,” id. at 150 , 159 A.2d at 664-65 (Henderson, J. dissenting), the Court observed: It may be added that the compensation for loss of a thumb is expressed as exactly that — “[f]or the loss of a thumb.” ... So, too, is the compensation for permanent partial disability expressed (in subsection (3)(a) immediately following that for the loss of a thumb) for the loss of a first finger, a second finger, a third finger, or a fourth (or little) finger.... Likewise ... compensation is so expressed in subsection (3)(b) for the loss of a great toe, (and for the loss of one of the toes other than the great toe) and for the loss of a hand, an arm, a