Montgomery County v. Deibler

BARBERA, J. Section 9-615 of the Maryland Code (1999, 2008 Repl.Vol.), Labor and Employment Article (“L.E.”) creates a two-part process for compensating temporary partial disabilities that result from work accidents or occupational diseases. 1 First, to ⁵⁷ be eligible for compensation, an employee’s “wage earning capacity” while temporarily, partially disabled must be “less” than that employee’s pre-disability wage earning capacity. L.E. § 9 — 615(a)(1). Then, if the employee is found to be eligible for compensation, the compensation owed the employee is calculated by halving the difference between the employee’s pre-disability average weekly wage, and post-disability wage earning capacity. L.E. § 9-615(a)(l)(i) & (ii).

This case focuses on the first part of the statute. We must determine whether a loss of the ability to work overtime, and its associated loss in overtime compensation, qualifies as a lessening of an employee’s wage earning capacity for the purposes of L.E. § 9-615. For the following reasons, we answer that question in the affirmative. I. The parties have stipulated to the material facts of this appeal.

Captain Kenneth Deibler, the Appellee, is a firefighter employed by Appellant, Montgomery County (“the County”). Appellee injured his knee on November 28, 2006 and again on March 5, 2008; both injuries occurred in work-related accidents. Those injuries, and the resulting physical restrictions, forced Appellee from his regular duties as a firefighter into a reduced working role. The parties refer to Appellee’s income as an “hourly wage.” Before his injuries, Appellee was paid bi-weekly for 96 hours of non-overtime work as a firefighter.

After his injuries, ⁵⁸ Appellee could not physically perform the tasks of his job or meet the demands of working as a firefighter. He was, therefore, placed on “light duty.” He worked 80 hours every two weeks, or 40 hours a week, performing less physically strenuous tasks. His reduction in hours, though, did not affect his salary. The County boosted his hourly wage and maintained all of his cost of living adjustments and benefits, to ensure that he earned the same amount of base pay as he had been making before his injuries.

Appellee, while temporarily partially disabled, experienced a reduction in his overtime hours and overtime compensation. Appellee testified that, before his injuries, he worked 15-20 hours of overtime per week in promotional and training activities, in addition to the biweekly 96 hours of firefighter duties. Payroll records support this, revealing that in the 14 weeks leading up to each injury, Appellee worked an average of 11.9 and 15.4 overtime hours per week, respectively. After the injuries, Appellee was physically incapable of working the same training and promotional overtime activities.

Moreover, unlike regular-shift firefighters, firefighters on light duty must receive special approval from a supervisor in order to work overtime hours. Appellee did not receive that approval. While Appellee was working light duty, his average weekly overtime fell to about one hour per week after each injury. As a consequence, and, notwithstanding that the County boosted Appellee’s base salary to offset his reduction in hours, Appellee’s income dropped significantly.

The record shows that, during the 14 weeks preceding his first injury, Appellee earned $2782.63 per week. During the 20 weeks Appellee spent on light duty after his first injury, Appellee earned approximately $2022 per week. In the 14 weeks preceding his second injury, Appellee earned $3049.92 per week. In the 22 weeks Appellee spent on light duty after his second injury, Appellee earned approximately $2278 per week.

Appellee filed separate claims with the Worker’s Compensation Commission (“the Commission”), requesting disability compensation for the loss of income stemming from each injury. The Circuit Court consolidated both cases. After a ⁵⁹ hearing, at which Appellee testified to the above facts, the Commission ordered that Appellee should receive temporary partial disability compensation for the periods of time in which he worked light duty after both injuries. Thus, implicit in the Commission’s order was its determination, pursuant to L.E. § 9-615(a), that Appellee’s loss in overtime compensation qualified as a lessening of his wage earning capacity.

The County filed a petition in the Circuit Court for Montgomery County seeking judicial review of the Commission’s decision. The County argued that the Commissioner’s implied reasoning under L.E. § 9-615(a) runs contrary to the intent of the Legislature. After brief discovery, both parties filed cross-motions for summary judgment. The County argued in its motion that Appellee’s base pay was the same as it was before his injuries and, therefore, Appellee could not fulfill the requirement of L.E. § 9 — 615(a)(1), that an employee’s wage earning capacity be “less” while disabled than the employee’s pre-disability wage earning capacity.

The County took the position that “wage earning capacity” does not include overtime compensation, because overtime is not a guaranteed form of compensation. The Circuit Court disagreed with the County. The court, by reference to what it viewed as analogous federal law (the Longshore and Harbor Workers’ Compensation Act, 38 U.S.C. § 908 (e)), ruled that the term “wage earning capacity” could fairly include overtime compensation. The court reasoned that the County’s argument fell out of line with modern employment practice.

The court explained that overtime was an integral part of the compensatory package for much of the workforce, including Appellee. The court ruled that overtime compensation was part of Appellee’s wage earning capacity. The court therefore denied the County’s motion for summary judgment, granted Appellee’s cross-motion for summary judgment, and thereby affirmed the Commission’s order. The County noted an appeal to the Court of Special Appeals.

Before argument in that court, we issued a writ of certiorari to consider following question: ⁶⁰ Does the term “wage earning capacity” include the capacity to earn overtime compensation so that the Commission may include such compensation in the determination of whether an employee’s wage earning capacity is “less” while temporarily, partially disabled?

II

L.E. § 9-745 governs appeals of decisions by the Commission. It provides that, in appellate review of a Commission decision, “the decision of the Commission is presumed to be prima facie correct.” We have explained, though, that this presumption does not extend to questions of law, which we review independently. Wal Mart Stores, Inc. v. Holmes, 416 Md. 346, 357 , 7 A.3d 13, 19 (2010). We do, though, afford the Commission a degree of deference, as appropriate, in its formal interpretations of the Workers’ Compensation Act.

See Breitenbach v. N.B. Handy Co., 366 Md. 467, 485 , 784 A.2d 569, 579 (2001) (“To be sure, the issue of statutory interpretation is for the court to decide, nevertheless, we have recognized that even when such matters are before the court, the [Commission]^ interpretation may be entitled to some deference.” (internal quotation marks omitted)). “The cardinal rule of statutory interpretation is to ascertain and effectuate the real and actual intent of the Legislature.” Gardner v. State, 420 Md. 1, 8 , 20 A.3d 801, 806 (2011) (quoting State v. Johnson, 415 Md. 413, 421 , 2 A.3d 368, 373 (2010)). In that task, we must “look first to the language of the statute, giving it its natural and ordinary meaning.” Holmes, 416 Md. at 385 , 7 A.3d at 36 . When the meaning of that plain language is “clear and unambiguous,” our interpretive task is at an end. Id. at 359, 7 A.3d at 21 .

But, “when the meaning of the plain language is ambiguous or unclear, we seek to discern the intent of the legislature from surrounding circumstances, such as legislative history, prior case law, and the purposes upon which the statutory framework was based.” Breitenbach, 366 Md. at 473 , 784 A.2d at 572 . ⁶¹ When interpreting the Act, additional principles of interpretation enter the equation. Foremost, we recognize that the Act is a remedial statute. Design Kitchen & Baths v. Lagos, 388 Md. 718, 724 , 882 A.2d 817, 821 (2005). The purpose of the Act is “to protect workers and their families from hardships inflicted by work-related injuries by providing workers with compensation for loss of earning capacity resulting from accidental injury arising out of and in the course of employment.” Howard County Assoc. for Retarded Citizens, Inc. v. Walls, 288 Md. 526, 531 , 418 A.2d 1210, 1214 (1980) (citing Queen v. Agger, 287 Md. 342, 343 , 412 A.2d 733, 733-34 (1980); Liggett & Meyers Tobacco Co. v. Goslin, 163 Md. 74, 80 , 160 A. 804, 807 (1932)).

Therefore, we have been consistent in holding that the Act must be “construed as liberally in favor of injured employees as its provisions will permit in order to effectuate its benevolent purposes.” Lagos, 388 Md. at 724 , 882 A.2d at 821 (quoting Harris v. Bd. of Educ. of Howard County, 375 Md. 21, 57 , 825 A.2d 365, 387 (2003)). At the same time, we “may not stifle the plain meaning of the Act, or exceed its purposes, so that the injured worker may prevail.” Breitenbach, 366 Md. at 473 , 784 A.2d at 573 (quoting Philip Elecs. N. Am. v. Wright, 348 Md. 209, 212 , 703 A.2d 150, 151 (1997)). When the language is plain, we may not invent or infer an ambiguity that does not exist in order to interpret the Act more favorably to the claimant.

Id. Moreover, the Act itself directs its own interpretation. L.E. § 9-102(a) demands that the statute “be construed to carry out its general purpose.” L.E. § 9-102(b) adds that “[t]he rule that a statute in derogation of the common law is to be strictly construed does not apply to this title.” Within this framework, we must determine whether the term “wage earning capacity” in L.E. § 9-615 contemplates compensation earned for overtime work. L.E. § 9-615(a), titled “Amount of payment,” provides, in pertinent part: “(1) Subject to paragraph (2) of this subsection, if the wage earning capacity of a covered employee is less while temporarily partially disabled, the employer or its insurer ⁶² shall pay the covered employee compensation that equals 50% of the difference between: (i) the average weekly wage of the covered employee; and (ii) the wage earning capacity of the covered employee in the same or other employment while temporarily partially disabled.” Pertinent to the issue we decide, the Act provides no express direction on how the phrase “wage earning capacity” is to be interpreted, either to include or exclude overtime compensation.

Wage earning capacity reasonably could be interpreted to include only the capacity to earn guaranteed remuneration for work, which would exclude overtime compensation. Alternatively, wage earning capacity reasonably could be interpreted to encompass the capacity to earn any type of remuneration an employee receives for work, including overtime compensation. Because the phrase is subject to more than one equally reasonable interpretation, it is ambiguous. Gardner, 420 Md. at 11 , 20 A.3d at 808 ; see Reier v. State Dep’t of Assessments & Taxation, 397 Md. 2, 26-27 , 915 A.2d 970, 984-85 (2007) (“[The law] does not state expressly whether ‘full back pay’ embraces benefits____It strikes us that the competing parties’ arguments present two ... reasonable alternative interpretations of the statute, making the statute ambiguous.” (internal citations and quotation marks omitted)).

To resolve this ambiguity, we must look past the plain language of the Act and “employ all the resources and tools of statutory construction at our disposal.” 2 Reier, 397 Md. at 27 , ⁶³ 915 A.2d at 985 (quoting Deville v. State, 383 Md. 217, 223 , 858 A.2d 484, 487 (2004)). The phrase “wage earning capacity” appears nowhere in the Maryland Code, other than in L.E. § 9-615. Furthermore, neither “wage,” nor “earning,” nor “capacity” is defined in Subtitle 1, the Act’s Definition and General Provisions subtitle. Moreover, the Act does not mention the word “overtime,” in any context. 3 ⁶⁴ The direct legislative history of the Act is similarly sparse.

For nearly a century, the language of L.E. § 9-615(a) has been resistant to substantive revision. Originally enacted as part of the Workers’ Compensation Act of 1914, the temporary partial disability compensation law consistently has provided for compensation when post-disability “wage-earning capacity ... in the same employment or otherwise” is “less” than predisability wage earning capacity. Workers’ Compensation Act, 1914 Md. Laws, ch. 800, § 35(4). See Md.Code (1957, 1985 Repl.Vol.) Art. 101, § 36(5) (“In case of a temporary partial disability, an injured employee shall receive fifty per centum of the difference between his average weekly wages and his wage-earning capacity thereafter in the same employment or otherwise if less than before the accident.”); see also 1991 Md. Laws, ch. 8 § 2 (Revisor’s Note of 9-615) (“[The current statutory language] is new language derived without substantive change from the first sentences of former Art. 101, § 36(5).”).

Our caselaw likewise provides little guidance in divining the meaning of “wage earning capacity.” We have recognized that “[t]he Act recognizes four categories of disability: (1) temporary partial disability, § 9-614; (2) temporary total disability, § 9-618; (3) permanent partial disability, § 9-625; and (4) permanent total disability, § 9-635.” Buckler v. Willett Constr. Co., 345 Md. 350, 354 , 692 A.2d 449, 451 (1997). The cases, however, have dealt primarily with the latter three categories. We have “interpreted ‘disability’ to mean ‘earning capacity[,]’ ” only in the context of temporary total disability.

Victor v. Proctor & Gamble Mfg. Co., 318 Md. 624, 632 , 569 A.2d 697, 701 (1990). That is to say, “[t]otal disability is synonymous with the inability to work[,]” Buckler, 345 Md. at 358 , 692 A.2d at 453 (emphasis added), and the inability to work means earning capacity is “nil,” Victor, 318 Md. at 633 , 569 A.2d at 702 . Therefore, when an employee loses all wage earning capacity, the employee may be found temporarily ⁶⁵ totally disabled under the Act.

Buckler, 345 Md. at 359-60 , 692 A.2d at 453 . However, this binary definition of wage earning capacity — either it is maintained or it is totally lost — does not help us parse the varying degrees of diminution in pay that an employee may experience due to a partial disability. Buckler thus does not inform the question of whether a loss of overtime compensation qualifies as a diminishment of wage earning capacity. We must, then, interpret Title 9 of the Labor and Employment Article language without the assistance of the traditionally-used interpretive aids.

We recently faced a similar situation in Stachowski v. Sysco Food Serv. of Baltimore, Inc., 402 Md. 506 , 937 A.2d 195 (2007). In Stachowski , we interpreted the Workers’ Compensation Act to determine whether “payment” in L.E. § 9-736(b) occurred when a disability check was mailed or when it was received. 402 Md. at 511-12 , 937 A.2d at 198 . In that case, the claimant, Stachowski, received worker’s compensation payments from his employer’s insurer after sustaining a temporary disability and filing a timely claim with the Commission. Id. at 510 , 937 A.2d at 197 .

He received his last disability compensation check on October 22, 1998, although the check was mailed on October 21, 1998. Stachowski filed for a modification of his original compensation award exactly five years later, on October 22, 2003. Id., 937 A.2d at 197 . The Commission found, and the Circuit Court and Court of Special Appeals later affirmed, that the Act’s statute of limitations provision, L.E. § 9 — 736(b)(3)(iii), barred modifications of a compensation award “[five] years ... from the date the last compensation check was mailed.” Id. at 511, 937 A.2d at 197 .

The Commission, the Circuit Court, and the Court of Special Appeals all held that “payment,” for purposes of “last compensation payment,” occurred when the disability checks were mailed. Consequently, Stachowski’s claim was one day outside the permissible statutory window. Id., 937 A.2d at 197-98 . We issued a writ of certiorari, and held that the date of payment, for L.E. § 9-736(b) purposes, was the date payment was received, not the date payment was mailed.

Id. at 531, ⁶⁶ 937 A.2d at 209 . In so holding, we noted that “[last compensation payment] does not appear elsewhere in the Maryland Code, and the term ‘payment’ is not defined within the Act.” Id. at 518 , 937 A.2d at 201 . We further noted that “[o]ur search has uncovered no legislative history concerning [the phrase’s] intended meaning.” Id., 937 A.2d at 201 . In order to interpret the phrase, we “look[ed] first at the dictionary definition of the word ‘payment’ for insight as to legislative intent.” Id. at 525 , 937 A.2d at 206 .

We then found that the dictionary definition was “in accord” with other uses of the term elsewhere in the Maryland Code-namely, the Maryland Uniform Commercial Code codified in Title 3 of the Commercial Law Article. Id. at 526 , 937 A.2d at 206 . We concluded that “the common understanding of payment and other references to the term in the Code [were] sufficient support to determine the outcome of [the] case,” before confirming that our holding was consistent with analogous federal and state law. Id. at 528 , 937 A.2d at 207 .

We shall use a similar analysis here, and we now turn to that task.

III

We begin by determining the commonly understood meaning of wage earning capacity. The County urges that wage earning capacity must be interpreted to exclude overtime wages. The County cites two editions of Black’s Law Dictionary for the assertion that “earning capacity” (not “wage earning capacity”) connotes a measure of the ability to work. See Black’s Law Dictionary 430 (8th ed. 2005) (defining earning capacity as “[a] person’s ability or power to earn money, given the person’s talent, skills, training, and experience.”); Black’s Law Dictionary 456 (5th ed. 1979) (defining earning capacity as “capability of worker to sell his labor or services in any market reasonably accessible to him....

Term does not necessarily mean the actual earnings that one who suffers an injury was making at the time the injuries were sustained”). Using those definitions, the County argues that the ability to earn overtime is separate from the ability to ⁶⁷ work. In the County’s view, overtime is not a reflection of an employee’s ability to perform the tasks of a job; instead, it is the product of the employer’s need. Thus, according to the County, Appellee’s ability to work — his earning capacity — did not decrease when his overtime compensation decreased; rather, his ability to perform work in order to earn his predisability base pay remained constant.

And, urges the County, it ensured that Appellee’s earning capacity was not “less” during the period of temporary partial disability, by artificially raising Appellee’s pay rate to make up for his reduction in regular-work hours. 4 The County’s reliance on a dictionary definition “provided] a useful starting point for determining what [the] statutory terms mean[.]” Marriott Emps. Fed. Credit Union v. Motor Vehicle Admin., 346 Md. 437, 447 , 697 A.2d 455, 460 (1997). Although “dictionary definitions do not provide dis-positive resolutions of the meaning of statutory terms[,]” id., 697 A.2d at 460 , “it is proper to consult a dictionary or dictionaries for a term’s ordinary and popular meaning,” Chow v. State, 393 Md. 431, 445 , 903 A.2d 388, 396 (2006). Specifically, the County provides a fair interpretation for “earning capacity” — the abstract capability of an employee to earn money by selling his or her labor or services.

Still, the County’s interpretation is incomplete. Its sheds light on the meaning of “earning capacity,” but L.E. § 9-615 does not hinge temporary partial disability compensation on earning capacity alone. The law provides for compensation when “the wage earning capacity of a covered