Montgomery County v. Buckman

KARWACKI, Judge. This case arises from the application of Paul A. Buckman to Montgomery County (the “County”) for “service-connected disability” retirement benefits provided for county employees by § 33-43 of the Montgomery County Code (1984, as amended). The Administrator of Montgomery County’s retirement plan (the “Administrator”) awarded Buckman a 15% partial and permanent service-connected disability retirement. Buckman appealed the Administrator’s decision to the Montgomery County Merit System Protection Board (the “Board”) which sustained the determination of the Administrator.

Buckman then sought judicial review in the Circuit Court for Montgomery County. The circuit court reversed the Board’s decision and awarded Buckman a total and permanent service-connected disability retirement. The Court of Special Appeals affirmed. Montgomery County v. Buckman, 96 Md. App. 206 , 624 A.2d 1274 (1993).

We granted certiorari to determine whether, under § 33-43 of the Montgomery County Code, a County employee who, as a result of an on-the-job injury, is unable to perform enough of the duties to keep the job with the County or a position of comparable status within the same department is entitled to total disability retirement benefits. 1 ⁵²⁰ I Buckman began working for Montgomery County as a liquor store clerk in October 1978. In September 1985, Buck-man sustained an accidental injury to his back while at work. After being placed on “light duty” for a short period of time, Buckman resumed his full duties. In January 1988, Buckman sustained an aggravation of his 1985 injury while lifting a ease of liquor from a conveyor belt.

Buckman underwent back surgery — a partial hemilaminectomy and excision of a herniated disc — a week later. Buckman returned to work on light duty status in March 1988 and remained on light duty until the fall of 1989. After resuming full duties, Buckman experienced continuing soreness in his back, pain radiating down his left leg, and numbness in. his left toes. At the suggestion of his neurosurgeon, John W. Barrett, M.D., Buckman, who was then 33 years of age, applied for a service-connected disability retirement on February 15, 1990.

In a supplementary neurosurgical report, Dr. Barrett stated that “[i]n view of [Buckman’s] ongoing symptoms I would feel that he should consider a disability retirement at this time. Unless he can be maintained in some occupation where he does not have to do repeated bending, lifting, etc., I feel certain that his symptoms will continue to recur.” Dr. Barrett rated Buckman’s disability as “Class 3— Slight limitation of functional capacity; capable of light work (33-55%).” After Buckman applied for disability retirement, he was again placed on light duty. Donald R. Boelke, M.D. performed an independent medical examination of Buckman on ⁵²¹ April 27, 1990. Dr. Boelke stated: “I do not feel [Buckman] would be able to return to the liquor business, lifting and particularly shifting boxes____” He added that resuming his usual duties would “be resultant in a recurrence of his severe symptoms.” Dr. Boelke rated Buckman’s disability at 15%, stating that “Mr. Buckman is not totally disabled but is markedly disabled particularly from heavy physical type of work.” He then stated: “I do not have much information on what type of work he could currently perform on a full time basis because I do not know his TQ’ or intelligence or grading or academic records.

However, based on the fact that he did have 30 credits in business administration at Montgomery College I feel he is a competent enough individual to at least be switched to a sedentary type occupation with business administration or personnel work or if he is suited for accounting or mathematics.” Clifford Hinkes, M.D. also rated Buckman’s disability at fifteen percent after an earlier independent medical examination on November 16, 1988. Buckman’s responsibilities as a liquor store clerk included the sale of alcoholic beverages and related clerical and custodial duties. The County’s job description for the position he held stated: “The work involves varied duties in a liquor store including stocking shelves, cleaning and arranging merchandise, operating a cash register, providing information to customers, performing housekeeping duties, and performing related store operations. Employees are required to spend long hours standing and to lift/move cases of merchandise.

Employees in this class assist Store Managers and Assistant Store Managers with the preparation of daily sales and inventory reports, making deposits and picking up cash from banks; they also help train other Liquor Store Clerks, may manage store operations for periods of short duration, and attempt to resolve any unusual problems that may arise____” ⁵²² The minimum qualifications of the position required, among other things, the ability to “independently move by lifting and/or pushing single and case items weighing up to 40 pounds.” Notwithstanding his disability, Buckman is capable of performing clerical work; typing; selling liquor; operating a cash register; answering questions and handling “fairly difficult questions when dealing with the public”; cleaning up merchandise depending on the extent of bending required; operating a vacuum cleaner depending on how heavy the vacuum cleaner; sweeping the floor; filling out special order forms, sales summaries and inventory lists; training part-time employees; making bank deposits; and operating an adding machine and calculator. Buckman’s service-connected disability retirement became effective August 11, 1990. The County did not give Buckman the option to work in another position. Although Buckman contacted the County’s Handicapped Assistance Program and attempted to find alternative county employment, he was unsuccessful.

II This appeal focuses on the proper construction of § 33-43 pertaining to service-connected disability retirement eligibility and benefits. A County employee’s eligibility for service-connected disability retirement is governed by § 33-43(e), which provides: “(e) Service-connected disability retirement. A member may be retired on a service-connected disability retirement if: (1) The member is totally incapacitated for duty or partially and permanently incapacitated for duty as the natural and proximate result of an accident occurring ... while in the actual performance of duty; ... and the incapacity is likely to be permanent. (2) The member is unable to perform the duties of the occupational classification to which assigned at the time ⁵²³ disability occurred or a position of comparable status within the same department, if qualified.” Section 33^3(h) specifies the amount of pension payable: “(h) Amount of pension at service-connected disability retirement.

The yearly amount of pension payable upon retirement for service-connected disability equals: (1) Total Incapacity. a. 2 percent of final earnings, multiplied by years of credited service, up to a maximum of 36 years, plus sick leave credits, but not less than 66% percent of final earnings, if the member is totally and permanently incapacitated. (2) Partial incapacity. 6 percent of final earnings for each 10 percent of permanent disability, but not less than 25 percent of final earnings, if the member is partially and permanently incapacitated----” We begin our analysis with a brief review of the oft-stated rules of statutory construction. The cardinal rule of statutory construction is to ascertain and carry out the intent of the legislature. Stapleford v. Hyatt, 330 Md. 388, 400 , 624 A.2d 526, 531 (1993); Taxiera v. Malkus, 320 Md. 471, 480 , 578 A.2d 761, 765 (1990); Jones v. State, 311 Md. 398, 405 , 535 A.2d 471, 474 (1988).

To do so, the Court considers the language of an enactment and gives that language its natural and ordinary meaning. Harford County v. University, 318 Md. 525, 529 , 569 A.2d 649, 651 (1990); NCR Corp. v. Comptroller, 313 Md. 118, 124 , 544 A.2d 764, 767 (1988); Utt v. State, 293 Md. 271, 286 , 443 A.2d 582, 590 (1982). Thus, when there is no ambiguity or obscurity in the language of a statute, there is no need to look elsewhere to ascertain the intent of the legislative body. In re Criminal Investigation No. 1-162, 307 Md. 674, 685 , 516 A.2d 976, 982 (1986); Police Comm’r v. Dowling, 281 Md. 412, 418 , 379 A.2d 1007, 1011 (1977); State v. Fabritz, 276 Md. 416, 421 , 348 A.2d 275, 278 (1975), cert, denied, 425 U.S. 942 , 96 S.Ct. 1680 , 48 L.Ed.2d 185 (1976); Furthermore, absent a clear intent to the contrary, a statute is ⁵²⁴ to be read so that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless, or nugatory.

State v. 149 Slot Machines, 310 Md. 356, 361 , 529 A.2d 817, 819 (1987); Sibert v. State, 301 Md. 141, 153 , 482 A.2d 483, 489 (1984); City of Baltimore v. Hackley, 300 Md. 277, 283 , 477 A.2d 1174, 1177 (1984); Police Comm’r v. Dowling, 281 Md. at 419 , 379 A.2d at 1011 . Applying these principles to the language of § 33 — 43(e)(1), we see that an employee may be retired on a service-connected disability retirement if he or she is totally incapacitated for duty or partially and permanently incapacitated for duty. Thus, there are two distinct types of service-connected disability retirement: one for employees who are totally incapacitated for duty, and a second for employees who are only partially, yet permanently, incapacitated for duty. The language of § 33-43(e)(l) expressly distinguishes between these two types of service-connected disability retirees.

Furthermore, in order to be retired on a service connected disability retirement, the employee must also satisfy the requirement of § 33-43(e)(2). That section provides that the employee must be unable to perform the duties of the occupational classification to which the employee was assigned at the time the disability occurred or a position of comparable status within the same department, if qualified. Thus, regardless of the degree of incapacitation for duty, whether total or partial, the employee must also be unable to continue to perform his or her job duties. Thus, the Montgomery County Council has unambiguously created a type of disability retirement for an employee, who because of a workplace accident, suffers from a permanent partial disability which prevents that employee from performing enough of the duties of the job held at the time the disabling accident occurred 2 but who is not totally incapacitated from employment. ⁵²⁵ Buckman urges us to rule, as the Circuit Court did, that where an employee, due to a job-related injury, is “unable to perform enough of the duties of that job to remain in that position,” he or she is entitled to the service-connected retirement benefits provided for an employee who is totally incapacitated for duty.

We decline to do so. We similarly reverse the Court of Special Appeals’ holding that an employee who sustains a work-place injury, and otherwise qualifies for a service-connected disability retirement, is totally incapacitated for duty and therefore entitled to total disability benefits if the extent of incapacity prevents the employee from continuing in his or her occupational classification or a position of comparable status. It does not follow that if an employee loses a job because of the inability to perform enough of the job duties, the employee is necessarily totally incapacitated for duty. Such a holding would render the provision for partial incapacitation superfluous because anytime an employee met the requirement for § 33 — 43(e)(2), that employee would necessarily be considered totally incapacitated.

Because we will not construe a statute so that any word, phrase or clause is rendered superfluous, we will not construe § 33^3(e)(l) such that “partially incapacitated” refers to a status that does not exist. We find support for this distinction in City of Baltimore v. Hackley, 300 Md. 277 , 477 A.2d 1174 (1984). In Hackley , we were called upon to interpret two sections of Baltimore City’s disability retirement law. Section 34(c) of Article 22 of the Baltimore City Code (1976 Ed., 1979 Supp.), the section that provided for ordinary retirement benefits, contained a requirement that the employee be “mentally or physically incapacitated for the further performance of the duties.... ” Section