Montgomery County v. Robinson

BELL, C.J. (retired). In 1968, this Court was presented with the question of whether, under the Workmen’s Compensation Act, Maryland Code (1957, 1967 Cum. Supp.), Art. 101, the predecessor of The Workers’ Compensation Act, Maryland Code (1991, 2008 Repl.

Vol.) Title 9 of the Labor and Employment Article (L & E), “an award of disability under [§] 36(4), concerning other cases, may be combined with an award under [§] 36(3), concerning specific injuries, so as to bring both awards within the purview of the serious disability provisions of [§] 36(4a) and [§] 36(3a).” Barnes v. Ezrine Tire Co., 249 Md. 557, 558 , 241 A.2d 392, 393 (1968). Art. 101, § 36(3), like its successor today, L & E § 9-627(a)-(h), prescribed a schedule of benefits and the “weeks” of compensation for specific injuries resulting in permanent partial disability. Section 36(4) provided, as its successor L & E § 9-627(k) also does, that all other cases of permanent partial disability are to be determined from the percentage by which the industrial use of the body is impaired as a result of the injury. 1 Sections 36(3a) and 36(4a) provided for an increased rate and amount of compensation for those persons suffering a “serious disability,” which they both defined. Sections 36(3a) and 36(4a) 2 provided: ⁶⁶ “(3a) (Permanent partial disability-Specific injuries)-Serious disability. — A person who receives under subsection (3) of this section an award for a period of one hundred and seventy-five weeks or more is thereby considered to have a serious disability.

He automatically shall be entitled to (in addition to the award under subsection (3)) an extra award of a number of weeks equal to one third (computed to the nearest whole number) of the number of weeks awarded under subsection (3); and the award of compensation to him in no case shall exceed forty dollars per week; and as to him the maximum limitation of $12,500 shall not apply. “(4a) (Permanent partial disability-Other cases)-Serious disability. — A person who receives under subsection (4) of this section an award equal in total to forty per centum or more of $12,500 is thereby considered to have a serious disability. He automatically shall be entitled to (in addition to the award under subsection (4)) an extra award of a number of weeks equal to one third (computed to the nearest whole number) of the number of weeks awarded under subsection (4); and the award of compensation to him in no case shall exceed forty dollars per week; and as to him the maximum limitation of $12,500 shall not apply.” The Workers’ Compensation Commission (“Commission”), reading the sections together, combined the awards so that the claimant qualified for serious disability under both § 36(3a) and § 36(4a), the effect of which was increased compensation. Barnes, 249 Md. at 560 , 241 A.2d at 394 . The Baltimore City Court 3 granted summary judgment in favor of the employer and insurer, and we affirmed.

Id. at 563 , 241 A.2d at 396 . In so doing, we rejected the claimant’s argument that there was a conflict or ambiguity in the compensation law, ⁶⁷ and held that there is “no basis for combining a non-qualifying award under one subsection with a qualifying award under the other subsection so as to make both of them qualify.” Id. at 562 , 241 A.2d at 395 . We explained: “The arguments made by the claimant fly in the face of the legislative intent. Chapter 322 was enacted ‘to create certain new categories (emphasis ours) of persons having a serious disability.’ Subsection (3a) sets forth the conditions necessary for an injury to qualify as a serious disability under 36(3) relating to specific injuries.

Likewise, subsection (4a) sets forth the conditions necessary to qualify as a serious disability under 36(4) concerning other injuries. In so doing, the legislature intentionally created two new categories. Had the legislature intended that (3a) and (4a) should be read together, it undoubtedly would have enacted only one additional subsection to s 36 with regard to serious disabilities. Furthermore, the qualifying conditions under 36(3a) and 36(4a) are not identical.

In order for a claimant to qualify for a serious disability award under (3a), he must have been awarded compensation for 175 weeks or more under 36(3). And in order for him to qualify under (4a), the claimant must have been awarded compensation for 200 weeks or more (i.e., an award equal to 40% or more of $12,500 at $25 a week).” Barnes, 249 Md. at 562 , 241 A.2d at 395 . Following the Barnes decision, the General Assembly amended § 36. See Ch. 446, Acts of 1970.

Significantly, in light of the Barnes holding and the rationale underlying it, the “serious disability” provisions previously separately codified as §§ 36(3a) and 36(4a) were combined into a single provision, § 36(4a), which was made applicable to all injuries arising “from one accident,” whether enumerated in § 36(3) or falling into the other cases category of § 36(4). It provided: “(4a). Serious Disability. — A person who, from one accident, receives an award of compensation for a period of two hundred and fifty (250) weeks or more under subsections (3) or (4) or a combination of both, is thereby considered to have a Serious Disability; except any award for disfigure ⁶⁸ ment or mutilation under subsection (8)(f) of this section shall not be considered in the determination of a Serious Disability. The weeks for such award shall be increased by one-third (computed to the nearest whole number); and the compensation shall be for sixty-six and two-thirds per centum of the average weekly wages, in no case to exceed Sixty-five dollars ($65.00) per week and not less than a minimum of twenty-five dollars per week unless the employee’s established weekly wages are less than twenty-five dollars per week at the time of the injury, in which event he shall receive compensation equal to his full wages.

This subsection, to the extent of any inconsistency, prevails over subsection (8) and (4); but otherwise subsections (3) and (4) apply to persons covered by this subsection. Provided, however, that any additional compensation for permanent partial disability on a petition to reopen shall not increase the amount of compensation previously awarded and actually paid.” Sections 36(3) and (4), to which amended § 36(4a) expressly referred, continued to provide as they did prior to the amendment to the serious disability provision. Thus, as the Court of Special Appeals observed in Carter v. Allen, Son & Company, Inc., 28 Md.App. 541, 544 , 346 A.2d 453, 455-56 (1975), “There can be no doubt of the legislative intent in the passage of the 1970 legislation whereby § 36(3a) and § 36(4a) were repealed and the new § 36(4a) enacted.” The court explained: “It is patent that the new subsection, combining the two prior subsections into one, was a legislative response to [the Barnes ] decision. The new legislation made clear that the full actual disability of a workman must be considered in the determination of ‘serious disability,’ whether it was the product of scheduled specific injuries under § 36(3) or to the body as a whole under the ‘other cases’ provisions of § 36(4) or to a combination of both.” Id. at 546, 346 A.2d at 456 .

See Duckworth v. Kelly-Springfield Tire Co., 30 Md.App. 348, 354 , 353 A.2d 1, 4 , aff'd, 278 Md. 361 , 363 A.2d 965 (1976). ⁶⁹ Subsequently, in 1987, pursuant to Recommendation No. 20 of the Governor’s Comm’n to Study the Workers’ Comp. Sys., (1987), by Acts of 1987, ch. 591, § 2, effective January 1, 1988, the General Assembly again amended § 36, this time to add, inter alia, another level of compensation for permanent partial disability to provide for the compensation of disabilities “for a period greater than or equal to 75 weeks but less than 250 weeks.” 4 So amended, § 36(3)(a) provided, as relevant: “(3) Permanent partial disability — Specific injuries. — (a) In case of disability partial in character but permanent in quality, compensation shall be paid to the employee at the rates enumerated for the periods as follows: “(i) 1. An award of compensation for a period less than 75 weeks in a claim arising from events occurring on or after January 1, 1988 shall be paid at a rate of thirty-three and one-third per centum of the average weekly wages, in no case to exceed $80 per week. An award of compensation for a period less than 75 weeks in a claim arising from events occurring on or after January 1, 1989 shall be paid at a rate of thirty-three and one-third per centum of the average weekly wages, in no case to exceed $82.50 per week. “2.

In all cases of disability for loss for a period of less than 75 weeks for an injury enumerated in paragraph (c) of this subsection, the compensation shall be paid at the rate specified in subparagraph (ii) of this paragraph. “3. Public safety employees, as defined in § 67(16) of this article, shall be paid benefits, for an award of compensation for a period less than 75 weeks, at the same ⁷⁰ rate provided in this paragraph for awards for a period equal to 75 weeks but less than 250 weeks. “(ii) An award of compensation for a period greater than or equal to 75 weeks but less than 250 weeks shall be paid at a rate of sixty-six and two-thirds per centum of the average weekly wages, in no case to exceed thirty-three and one-third per centum of the average weekly wage of the State of Maryland as determined by the Department of Economic and Employment Development. “(Hi) An award of compensation, from one accident, for a period equal to or greater than 250 weeks as specified in paragraphs (c) through (l), inclusive, of this subsection, or any combination of awards thereunder, except that an award for disfigurement or mutilation under paragraph (h) of this subsection shall not be considered a determination of serious disability, shall be increased by one-third the number of weeks (computed to the nearest whole number) and the total shall be paid at a rate of sixty-six and two-thirds per centum of the average weekly wages, in no case to exceed seventy-five per centum of the average weekly wage of the State of Maryland as determined by the Department of Economic and Employment Development. This subparagraph, to the extent of any inconsistency, prevails over paragraphs (c) through (l) of this subsection; but otherwise paragraphs (c) through (l) of this subsection apply to persons covered by this subparagraph----” Unlike the provision regarding serious disability, which made it clear that a combination of awards pursuant to the scheduled benefits and “other cases” could be utilized to achieve serious disability status, the new level of disability did not expressly address whether awards could be combined in order to allow a claimant to qualify for that level of compensation. In fact, it contained nothing either proscribing or allowing the combination of awards, nor did it make any distinction between scheduled and unscheduled awards.

Section 36 (3) continued to prescribe a schedule of benefits and the “weeks” of compensation for specific injuries in sub ⁷¹ sections (c) — (k), and to provide for “other cases” in subsection (j), which stated: “In all other cases of disability other than those specifically enumerated disabilities set forth in paragraphs (c) through (i), inclusive, of this section, which disability is partial in character, but permanent in quality, the Commission shall determine the portion or percentage by which the industrial use of the employee’s body was impaired as a result of the injury and in determining such portion or percentage of impairment resulting in industrial loss, the Commission shall take into consideration, among other things, the nature of the physical injury, the occupation, experience, training and age of the injured employee at the time of injury, and shall award compensation in such proportion as the determined loss bears to 500 weeks and compensation shall be paid to the employee at the rates enumerated for the periods as provided in subsection (3)(a)(i) through (iii), inclusive, of this section.” In 1991, as part of Code revision, the Legislature re-codified the Workers’ Compensation statute as Title 9 of the Labor and Employment Article. See Acts of 1991, ch. 8. The re-codification made no substantive changes to the schedule of specific injuries or to the language defining the injuries or to the three levels of compensation prescribed for permanent partial disability. Section 9-627(a)-(j), like its predecessor, § 36(3)(c)-(k), contains a schedule in which the duration of compensation for certain injuries to the members of the body is pre-determined.

In the case of injuries to which the schedule is applicable, the Commission evaluates each injury sustained, makes a determination as to percentage of impairment, and apportions the percentage of the injury that is work-related against any preexisting injury or condition. See § 9 — 627(a)—(j). If, however, a claimant suffers an injury to the body that is not “scheduled,” “the [Commission] ... determine^] the percentage by which the industrial use of the covered employee’s body was impaired [as a result of this injury and] ... award[s] compensation to the covered employee in the proportion that the determined loss bears to 500 weeks.” § 9-627(k). Id.

Section 9-630, addressing the most ⁷² serious permanent partial disabilities, still contained, slightly-modified, the language first adopted in response to Barnes and retained when the statute was amended in 1987 (effective 1988), which expressly authorized combining awards, with the exception of “[a]n award for disfigurement or mutilation, [which] may not be used to make up the 250 weeks under paragraph (1) of this subsection,” to reach this level of compensation. Section 9-629, the next most serious level of disability, which did not contain a similar provision when initially enacted in 1987, was reenacted without adding any combination language. 5 The lowest level of compensation continues to govern all situations when “a covered employee is awarded compensation for less than 75 weeks;” however, the rate of compensation varies depending on the date of injury. 6 Md.Code (1991, 2008 Repl. Vol.), § 9-628 of the Labor & Employment Article. 7 The middle level of compensation takes effect when “a covered employee is awarded compensation for a period equal to or greater than 75 weeks but less than 250 weeks.” § 9-629. 8 ⁷³ Compensation at this level remains equal to “two-thirds of the average weekly wage of the covered employee but [cannot] exceed one-third of the State average weekly wage.” Id. The highest level of compensation applies when “a covered employee is given an award or a combination of awards resulting from 1 accidental personal injury or occupational disease for 250 weeks or more.” § 9-630. 9 The time period of the award continues to be “increase[d] ... by one-third the number of weeks in the award or awards, computed to the nearest whole number” and the employee is to be compensated at “two-thirds of the average weekly wage of the covered employee, but [not to] exceed 75% of the State average weekly wage.” Id.

In this consolidated appeal by Montgomery County, Maryland and the Board of Education of Montgomery County, collectively 10 “the petitioners” or “Montgomery County,” we are asked to decide whether Brenda Robinson (“Robinson”) and Jamie Anderson (“Anderson”), collectively the respon ⁷⁴ dents, were properly compensated pursuant to L & E § 9-629. Robinson and Anderson each suffered a single on-the-job accident, resulting in permanent partial disability, where at least one of the two injuries was a “scheduled injury” pursuant to § 9-627(a) through (j) and the other arose under “other cases” and was, therefore, an “unscheduled injury” pursuant to § 9-627(k). The Commission awarded Robinson 150 weeks of permanent partial disability benefits. It concluded that Robinson was to be paid at the “second tier” rate of benefits, amounting to $267.00 per week.

The employer in her case, Montgomery County, appealed the Commission’s award to the Circuit Court for Montgomery County. There, it filed a Motion for Summary Judgment, contesting the Commission’s decision to award “second tier benefits” to Robinson. Robinson filed a Motion in Opposition to Summary Judgment. Judge William J. Rowan III granted summary judgment in favor of Montgomery County.

With respect to Anderson, the Commission awarded 77 weeks of benefits, also at the “second tier” rate of permanent partial disability benefits, in her case amounting to $288.00 per week. The employer in her case, the Montgomery County School Board, also appealed the award to the Circuit Court for Montgomery County, seeking favorable summary disposition. Anderson filed a cross-motion for summary judgment in support of the Commission’s award and the provision of second tier benefits. Judge Terrence J. McGann similarly reversed the Commission’s award.

The respondents timely noted an appeal to the Court of Special Appeals. After hearing argument, the Court of Special Appeals reversed the judgments of the Circuit Court. Anderson v. Board of Educ. of Montgomery County, 192 Md.App. 343 , 994 A.2d 507 (2010). It held that the Commission could combine awards for scheduled injuries with awards for other cases for the purpose of determining whether the second tier compensation rate was applicable.

Id. at 353 , 994 A.2d at 514 . In support of its decision, the intermediate appellate court stated that “the history of the creation of the second tier of compensation persuades us that the legislature intended for ⁷⁵ the Commission to consider the total compensation awarded as a consequence of a single accident in making its determination of whether the enhanced rate was applicable.” Id. The petitioners subsequently petitioned this Court for certiorari review, which we granted. Montgomery County v. Robinson, 415 Md. 337 , 1 A.3d 467 (2010) and Board of Education v. Anderson, 415 Md. 337 , 1 A.3d 467 (2010).

We must determine whether the respondents qualified for compensation under § 9-629, that is, whether, like § 9-630, which prescribes a higher level of compensation, § 9-629 authorizes the combining of compensation awards. In making the award pursuant to § 9-629, the Commission combined, in each case, the awards for the scheduled and unscheduled injuries. We hold that it is permissible under the Workers’ Compensation Act to combine compensation awards in order to determine which of the three levels of compensation prescribed by §§ 9-628-9-630 is appropriate. Therefore, we affirm the judgments of the Court of Special Appeals, which correctly applied § 9-629 and properly reversed the judgments of the Circuit Court for Montgomery County.

I. The consolidated cases sub judice arise from two separate claims filed by the respondents Robinson and Anderson with the Commission. Robinson filed her claim for permanent injuries that partially impaired her right hand/wrist and back on November 8, 2006. The Commission awarded, pursuant to § 9-627(d), 100 weeks of compensation for Robinson’s “scheduled” hand/wrist injury and, pursuant to § 9-627(k), an additional 50 weeks for her “unscheduled” back injury. Combining the scheduled and unscheduled injuries, it then awarded Robinson 150 weeks of compensation at the intermediate level of compensation, pursuant to § 9-629.

Anderson filed a claim for permanent partial injuries sustained to her back and leg on January 11, 2007. The Commission awarded her 50 weeks of compensation for her “unscheduled” back injury, pursuant to § 9-627(k), and an additional ⁷⁶ 27 weeks of compensation for her “scheduled” leg injury; pursuant to § 9 — 627(d). Again, the Commission combined the scheduled and unscheduled injuries and awarded 77 total weeks of compensation at the intermediate level of compensation. The County does not challenge the Commission’s determinations as to the severity of the injuries suffered or the period during which compensation was payable for each injury.

It challenges only whether the individual injuries can be combined to reach the intermediate compensation level. In that regard, the petitioners challenged the Commission’s authority to combine awards made with regard to scheduled and unscheduled injuries in order to award the intermediate level of compensation. They contend that both of