Mayor of Baltimore v. Oros

MENCHINE, Judge. The appellees, Bernard P. Oros, John B. Smith, Sr., and Gary Joseph Fischer, all are police officers employed by the Mayor and City Council of Baltimore (the City). Each sustained an accidental injury arising out of and in the course of his employment for which separate workmen’s compensation claims were filed. 1 Although, as footnoted, supra, awards for temporary total disability were passed by the Workmen’s Compensation Commission (the Commission) as to each appellee, the City paid each appellee his full wage for all periods of temporary total disability. The brief of the City stated that “Every employee is entitled to receive accident leave allowance pursuant to the contractual agreement between the Mayor and Council of Baltimore and the employee’s collective bargaining agent.” In due course each appellee requested a hearing before the Commission, seeking compensation benefits for permanent partial disability.

At each such hearing the City raised the issue “whether it was entitled to a set off as against an award of permanent disability for the difference between the temporary total disability rate and the accident leave rate (or full salary) paid in lieu of temporary total disability benefits.” (Emphasis added.) Entitlement to such ⁴⁶³ a set off was claimed under Article 101, § 33(c) that reads as follows: “(c) Whenever by statute, charter, ordinances, resolution, regulation or policy adopted thereunder, whether as part of a pension system or otherwise, any benefit or benefits are furnished employees of employers covered under § 21(a)(2) of this article, the dependents and others entitled to benefits under this article as a result of the death of such employees, 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 and the Subsequent Injury Fund for any benefit under this article. If any benefits so furnished are less than those provided for in this article the employer or the Subsequent Injury Fund, or both shall furnish the additional benefit as will make up the difference between the benefit furnished and the similar benefit required in this article. Provided, however, that the computation of the additional benefit shall be applicable only at the time of the initial award of benefits and shall not be applicable to any cost of living adjustments after the initial award, and this provision shall be retroactive to benefits received before July 1, 1980.” At separate hearings, differing decisions were made by the Commission upon the issue. In the cases of Oros and Smith, Commissioner Mercaldo allowed the City to set off against awarded permanent partial disability benefits the difference between the amount payable under Maryland Code, Article 101, § 36(2) and the full weekly wage paid to them under the contract. 2 Commissioner Albert denied the requested set off against awarded permanent partial dis ⁴⁶⁴ ability benefits in the case of Fischer. 3 Appeals to the Circuit Court for Baltimore City were taken by the losing party in each case.

The Circuit Court for Baltimore City by separate orders dated February 17, 1983 granted motions for summary judgment filed by the City. Oros, Smith and Fischer filed separate appeals to the Court of Special Appeals of Maryland. The cases were consolidated in that court, were heard together, and resulted in reversal of the judgment of the circuit court. Oros, et al. v. City of Baltimore, 56 Md.App. 685 , 468 A.2d 693 (1983).

We granted certiorari to consider the question. The regulation governing entitlement to and continuance of full salary payments to police officers of the City during periods of temporary total disability is to be found in Police Department, Baltimore, Maryland, General Order 3-79 dated 29 April 1979 and its anexes A through J as amended on 1 July 1979. 4 These regulations in part here pertinent read as follows: “POLICY Baltimore Police Department employees are provided sick leave benefits in keeping with the following: Under the direction of the Chief Police Physician all sworn personnel are entitled to sick leave as may be required to recover from illnesses or injuries. PURPOSE The purpose of this order is to recodify and promulgate existing departmental policies and procedures governing medical leave to include an amendment to policy proee ⁴⁶⁵ dure governing the commencement and duration of paid sick leave. MEDICAL SECTION RESPONSIBILITIES Maintains medical records of all members including time lost due to illness, injury or disability.

Determines whether reported injuries or illnesses are line of duty or non-line of duty. Provides medical treatment and performs surgical operations for line of duty injuries or illnesses and physical therapy treatment for members with residual medical problems resulting from line of duty injuries. The Chief Police Physician shall determine if a member is temporarily incapable of performing any departmental duty due to a medical incapacitation. (Emphasis added.) For the purposes of this decision, we shall assume that the respective terms of the statute, “temporary total disability” and of General Order 3-79, “temporarily incapable of performing any departmental duty due to a medical incapacitation” are identical in meaning.

We make that assumption because it is undisputed that all appellees were paid full wages during every period of temporary disability. Otherwise stated, it is conceded that the benefits provided by General Order 3-79 during temporary total disability exceed the benefits provided by Article 101, § 36(2) for temporary total disability under the facts of this case 5 and ⁴⁶⁶ thus discharged the City under § 33(c) supra from any obligation to pay benefits for temporary total disability. The City maintains, however, that excess benefits provided under General Order 3-79 for temporary total disability build up into a' fund that may be set off against benefits payable for permanent disabilities under Article 101, § 36(3) and (4). We pass then to the question whether § 33(c) authorizes the City (or other governmental or quasi-governmental agency included within § 21(a)(2)) 6 to set off the difference between the wages actually paid and the benefits prescribed by § 36(2) during the period of temporary total disability against its statutory obligation under Article 101 for payment of benefits for permanent partial disability.

We think not. In Gorman v. Atlantic Gulf & Pacific Co., 178 Md. 71 , 12 A.2d 525, 529 (1940), a claimant had been paid $3,400.00 in benefits during his temporary total disability. He thereafter was awarded compensation for permanent disability ⁴⁶⁷ benefits that increased the entirety of his benefits to a total of $7,100.00. The employer and insurer urged that the maximum compensation to which he was entitled was the sum of $5,000.00 — the amount then payable for permanent total disability.

We rejected this contention. Judge Parke, speaking for this Court in Gorman, supra, considered in depth the intent of the Legislature in its classification of benefits. In the course of his opinion Judge Parke said: “A temporary total disability and a permanent total disability, a temporary partial disability and a permanent partial disability, are four different compensable results; and the measure of the compensation to be appropriately awarded in these instances as they may occur is not for the court to create nor to change. The court must declare the legislative intention as expressed by the statute to the exclusion of the suggested interpolations.” Gorman, 178 Md. at 75 , 12 A.2d 525 .

After emphasizing that the Workmen’s Compensation Act contained a provision that: “The compensation for the foregoing specific injuries shall be paid in addition to, and consecutively with, the compensation hereinbefore provided in Sub-Section 2 of this Section.” 7 Gorman, 178 Md. at 76 , 12 A.2d 525 (emphasis added), he added: “The specific mandate of this act is too clear for doubt. The workman, who has sustained a temporary total disability and a permanent partial disability of a specific kind ⁴⁶⁸ or nature, receives a separate award for each such disability.” Gorman, 178 Md. at 76 , 12 A.2d 525 . “It may be added that this period of temporary total disability is the healing period, or the time during which the workman is wholly disabled and unable by reason of his