Montgomery County v. Buckman

BISHOP, Judge. Appellant, Montgomery County (“the County”), awarded Appellee, Paul A. Buckman (“Buckman”), a partial service-connected disability retirement upon the recommendation of the County’s retirement system administrator (“the Administrator”). Buckman appealed the Administrator’s decision to the Montgomery County Merit System Protection Board (“the Board”) which sustained the Administrator. Buckman then appealed to the Circuit Court for Montgomery County.

The circuit court reversed the Board’s decision and awarded Buck-man full disability retirement benefits. The County filed an appeal to this Court. Issues The County presents the following issues which we restate as follows: I. Whether Montgomery County Code §§ 2A-2(c) and 33-15(b) provide a right of appeal to the Court of Special Appeals from a decision of the Circuit Court for Montgomery County.

II

Is an employee who sustains an occupational injury and otherwise meets the requirements of Montgomery County Code § 33-43(e) entitled to full disability retirement benefits under § 33-43(h)(l) if he is incapacitated for duty, yet capable of performing certain job duties. ²⁰⁹ Facts Buckman began working for Montgomery County as a liquor clerk in October 1978. In September 1985, Buckman sustained a work-related back injury. After being placed on “light duty” for a short period of time, Buckman resumed full duties. In January 1988, Buckman aggravated his back injury when he lifted a case of liquor from a conveyor belt.

Buck-man underwent back surgery — a partial hemilaminectomy and excision of herniated disc — a week later. Buckman returned to work on light duty in March 1988 and remained on light duty until the Fall of 1989. After Buckman resumed full duties, he experienced 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 applied for disability retirement on February 15, 1990.

Buckman knew his employer had a policy limiting the period to six months that an employee could remain on light duty. 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 (35-55%).” 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 April 27, 1990.

Dr. Boelke opined that Buckman “would [not] be able to return to the liquor business, lifting and particularly shifting boxes____” He added: “perform[ing] his usual occupation as a liquor store clerk would certainly be under diress [sic] and be resultant [sic] in a recurrence of his severe symptoms.” Dr. Boelke rated Buckman’s “permanent physical impairment” at fifteen percent. He nevertheless stated that Buckman is “markedly disabled particularly from heavy physical type of work.” Clifford Hinkes, M.D. also rated ²¹⁰ Buckman’s disability at fifteen percent after his independent medical examination of Buckman on November 16, 1988. Buckman’s responsibilities as a liquor clerk included the sale of alcoholic beverages and related clerical and custodial duties. The minimum qualifications of the position require, among other things, the ability to “independently move by lifting and/or pushing single and case items weighing up to 40 pounds.” Buckman was capable of performing clerical work; typing; answering questions and handling “fairly difficult questions when dealing with the public;” selling liquor; operating a cash register; making bank deposits; cleaning up merchandise depending on the extent of bending required; operating a vacuum cleaner depending on how heavy the vacuum cleaner is; sweeping a floor; filling out special order forms, sales summaries and inventory lists; training part-time employees; and operating an adding machine and calculator.

Buckman’s partial service-connected disability retirement became effective August 11, 1990. The County did not give Buckman the option to work in another position. Buckman contacted the County’s Handicapped Assistance Program and attempted to find alternative county employment. He was unsuccessful, however.

Relying on the opinion of Dr. Boelke, the Administrator rated Buckman’s permanent physical impairment at fifteen percent. At Buckman’s request, a hearing was held on December 20, 1990. The hearing examiner concluded that Buck-man “is not able to perform all the duties of a liquor store clerk” and his “permanent partial incapacity should be 35%.” After reviewing Montgomery County Code § 33-43(e) and concluding that under Rule 8-114(a) Montgomery County v. Whittaker, No. 1466, Sept. Term, 1981 (unreported per curiam opinion filed August 3, 1982), could not be cited as authority, the hearing examiner determined “that an employee who is not able to perform all of the duties of his classification can still be found to be partially incapacitated, and thus can be awarded a partial service-connected disability retirement.” Buckman filed an appeal to the Board, which summarily affirmed the decision of the hearing examiner. ²¹¹ Buckman then filed an appeal to the Circuit Court for Montgomery County. The circuit court determined Whittaker was applicable, and concluded that, although Buckman “can still perform some of his prior duties, he is nevertheless totally incapacitated since he cannot perform all of the duties necessary to maintain his employment as liquor store clerk.” The court reversed the decision of the Board and ordered the award of full disability retirement benefits.

Discussion I The County, apparently under the impression that Buckman is challenging our exercise of subject matter jurisdiction over this appeal, asks us to decide whether the County has a right to appeal from the circuit court’s judgment. Buckman does not address this issue in his brief, and therefore we shall assume Buckman does not contest the propriety of our review. Accordingly, we shall not address the merits of this issue. II On appeal, the determination of an administrative agency is entitled to great deference. “Our duty is to determine whether the deeision[ ] of the [agency was] arbitrary or capricious....

If the conclusion reached [in this case] ... is supported by sufficient evidence and is based upon a proper construction of the law, the conclusion is neither arbitrary nor capricious.” Hackley v. Mayor of Baltimore, 70 Md.App. 111, 116 , 519 A.2d 1354 (emphasis added) (citations omitted), cert. denied, 300 Md. 277 , 477 A.2d 1174 (1987). If, however, “the agency’s decision is based on an erroneous conclusion of law,” “[t]he reviewing court ... may substitute its judgment for that of the agency concerning questions of law.” Mayor of Ocean City v. Purnell-Jarvis, Ltd., 86 Md.App. 390, 402 , 586 A.2d 816 (1991). The focus of this appeal is the construction of § 33-43(e) of the Montgomery County Code (1984, as amended) which provides in pertinent part: ²¹² 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....

(2) The member is unable to perform the duties of the occupational classification to which assigned at the time disability occurred or a position of comparable status within the same department, if qualified. Once it is determined the employee is eligible for a service-connected disability retirement, the amount of the pension is determined according to § 33-43(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____ Thus, Buckman’s annual pension would be no less than sixty-six and two-thirds percent of his final earnings if the injury rendered him “totally incapacitated for duty,” or only twenty-five percent of his final earnings if the injury rendered him “partially and permanently incapacitated for duty.” The County argues the circuit court erred in concluding that Buckman was entitled to full benefits under § 33 — 43(h)(1). First, the County acknowledges that in Whittaker we held that an employee who is totally incapacitated for duty, though not totally disabled from any gainful employment, is entitled to full disability retirement benefits. The County points out, ²¹³ however, that the court erred when it expanded our holding in Whittaker to mean that, even though the employee may perform a majority of his job duties, anytime he can no longer perform all of his job duties, he is totally incapacitated for duty. As a result of this error, the County argues the court improperly concluded that the issue in Whittaker is identical to the issue sub judice.

The County also contends that the court’s misinterpretation of Whittaker led to its second error — the court engaged in judicial legislation when it rendered the phrase “or partially or permanently incapacitated for duty” in § 33-43(e)(l) surplusage and meaningless. Finally, the County alleges the third error occurred when the lower court substituted its judgment for that of the Administrator, the hearing examiner, and the Board by reversing the prior finding that Buckman was only partially incapacitated for duty and instead holding that he was “totally incapacitated” for duty. We shall address each contention in turn. A Rule 8-114 provides: (a) Not Authority. — An unreported opinion of the Court of Appeals or Court of Special Appeals is neither precedent within the rule of stare decisis nor persuasive authority.

(b) Citation. — An unreported opinion of either Court may be cited in either Court for any purpose other than as precedent within the rule of stare decisis or as persuasive authority. In any other court, an unreported opinion of either Court may be cited only (1) when relevant under the doctrine of the law of the case, res judicata, or collateral estoppel, (2) in a criminal action or related proceeding involving the same