NATIONAL CORPORATION FOR HOUSING PARTNERSHIP, MEADOWOOD TOWNHOUSE, INC. v. Keller

WILNER, Judge. The issue before us is whether, for purposes of Maryland Code, § 9-632(c) of the Labor and Employment Article, Kenneth Keller is a “surviving dependent” of his mother, Shirley Keller, and, as a result, is entitled to receive the permanent partial disability benefits that otherwise would have been awarded to Ms. Keller had she not died prior to the entry of the award. We shall hold that he was not a surviving dependent and, for that reason, shall reverse the judgment of the Court of Special Appeals in Meadowood v. Keller, 119 Md.App. 566 , 705 A.2d 142 (1998). BACKGROUND The relevant facts, which are not in substantial dispute, are well-summarized by Judge Hollander for the Court of Special Appeals.

On February 19,1990, Ms. Keller suffered a serious accidental injury to her neck and shoulder in the course of her employment by petitioner. After the accident, Ms. Keller’s adult son, Kenneth, who was living in California, came to Maryland to care for her, and, as a result, became financially dependent on his mother. At some point, Ms. Keller filed a claim for workers’ compensation benefits, seeking both temporary total and permanent partial disability benefits. She received an award of temporary total disability benefits, but on February 1, 1994, while her claim for permanent partial ¹⁷³ disability benefits was still pending before the Workers’ Compensation Commission, Ms. Keller died of sudden cardiac arrest.

Three important facts are conceded for purposes of this appeal: (1) that her death was completely unrelated to the 1990 accident; (2) that at the time of the accident, Kenneth was not financially dependent on his mother; and (3) that at the time of her death, he was financially dependent upon her. In February, 1995—a year after Ms. Keller’s death—the Workers’ Compensation Commission found that she had sustained a permanent partial disability amounting to a 75% industrial loss of use of her body as a result of the 1990 accidental injury. In July, 1995, following a hearing, the Commission determined that Kenneth qualified as a surviving dependent of Ms. Keller and, pursuant to § 9-632, awarded him the permanent partial disability benefits of $180/week for 500 weeks that otherwise would have been awarded to Ms. Keller. The Circuit Court for Baltimore County affirmed that determination, and the Court of Special Appeals affirmed the judgment of the circuit court.

DISCUSSION The issue before us is purely one of statutory construction. It involves directly § 9-632 of the Labor and Employment Article, but it implicates as well a number of other sections of that article, principally §§ 9-640, 9-646, and 9-678 through 9-686. To put those statutes in a proper perspective, it is important to keep in mind that the workers’ compensation law provides benefits for a number of different kinds of disabilities arising from job-related injuries and diseases, among which are weekly monetary benefits for temporary disability (both partial and total), permanent disability (both partial and total), hernia, and death. Benefits for disability and hernia are awarded to the injured employee; by virtue of §§ 9-632, 9-640, and 9-646, however, the right to collect those benefits survives if the employee dies before they are paid in full from a cause that is not itself compensable under the Act.

In that event, the remaining benefits payable under the award are paid to the employee’s surviving dependents or, if there are no ¹⁷⁴ such dependents, to other persons designated in those sections. Death benefits obviously cannot be awarded to the employee but are instead awarded to persons who were dependent on the deceased employee, in accordance with §§ 9— 678 through 9-686. As a result of these provisions, it is possible, when an employee is injured in a job-related accident and then dies, for a dependent of that employee to collect workers’ compensation benefits in either, but not both, of two different settings. One setting is that provided for in §§ 9-632, 9-640, and 9-646—the survival sections applicable, respectively, to benefits for permanent partial disability, permanent total disability, and hernia.

The relevant parts of those statutes are identically worded. Section 9-632(b)—the section applicable in this case—provides that “if a covered employee dies from a cause that is not compensable under this title, the right to compensation that is payable under this Part IV of this subtitle [ permanent partial disability] and unpaid on the date of death, survives in accordance with this section.” (Emphasis added.) Section 9-632(c) states that, “if there are surviving dependents of the covered employee, the right to compensation survives to the surviving dependents as the Commission may determine.” Subsections (d) and (e) provide for what happens when there are no surviving dependents: if, on the date of the employee’s death, the employee had a legal obligation to support a surviving spouse, the right to compensation survives to the surviving spouse and the. surviving minor children of the employee; in the absence of such an obligation to a surviving spouse, the right to compensation survives only to the surviving minor children. As we pointed out in City of Baltimore v. Cline, 266 Md. 42 , 291 A.2d 464 (1972), quoting from the opinion of the Court of Special Appeals in that case, the right to compensation by dependents under what is now § 9-632 is derivative: “it is not the death which is compensable under the statute but rather the injury, and it is the right of the workman himself to collect the benefits unpaid from that injury at the time of his death which survives. Those who take, in the event of his death, ¹⁷⁵ take under him, and not independently.” Id. at 44, 291 A.2d at 465 .

The second setting, dealt with in §§ 9-678 through 9-686, arises when the employee dies from a cause that is compensable, i.e., when he or she dies from the job-related injury. In that setting, it is the death of the employee that is the compensable event, and the right of the dependent to collect the death benefit is direct, not derivative. Sea Gull Specialty Co. v. Snyder, 151 Md. 78 , 134 A. 133 (1926). As the Court of Special Appeals explained in Cline v. City of Baltimore, 13 Md.App. 337, 341 , 283 A.2d 188 (1971), aff'd per curiam, City of Baltimore v. Cline, supra, 266 Md. 42 , 291 A.2d 464 , where death occurs as the result of the compensable injury “the right of the surviving dependents to death benefits is separate and independent of the injured employee’s rights” and “is an independent right derived from statute, and not from the rights of the decedent.” Section 9-632 does not specify directly whether dependency is to be determined as of the time of the accidental injury or as of the time the employee dies.

It speaks only of “surviving dependents of the covered employee” and does not distinguish between dependents who were wholly dependent on the employee and those who were only partly dependent. The sections dealing with death benefits are more explicit, in a number of respects. Section 9-680, for example, sets forth certain circumstances in which persons who would otherwise be regarded as dependents may not receive any compensation—a surviving spouse who deserted the employee either more than one year before the injury or any time after the injury, a surviving spouse who married the employee after the injury if the couple had no dependent children, and, with certain exceptions, a person who became dependent on an employee who died of an occupational disease if the dependency commenced after the employee’s first compensable disability. Sections 9-681 and 9-682 distinguish between persons who were wholly dependent on the employee and those who were only partly dependent, in terms of the amount and duration of the benefit.

Section 9-683 allows the Commission ¹⁷⁶ to apportion death benefits among multiple dependents and requires certain dependents to apply amounts received for the benefit of other dependents. Under the statutory scheme set forth in §§ 9-678 through 9-686, the Commission must focus both on the time of the death-causing accident and on the time of the employee’s death in determining dependency. Section 9-681(a), with respect to wholly dependent individuals, requires payment of a death benefit only to “individuals who were wholly dependent on a deceased covered employee at the time of death resulting from an accidental personal injury or occupational disease.” (Emphasis added.) The focus on dependency at the time of the employee’s death appears in other parts of § 9-681 as well. Section 9-681(d) and (e), for example, refer to a “surviving spouse who is wholly dependent at the time of death.” Section 9-681(h) contains similar language with respect to a dependent child.

Section 9-682(a), dealing with partly dependent individuals, is not so specific as § 9-681, but certainly implies that, to be eligible for death benefits, the claimant must have been partly dependent on the deceased employee at the time of the employee’s death. 1 On the other hand, § 9-679, with exceptions not relevant here, provides that “the Commission shall determine all questions of partial or total dependency in accordance with the facts of each case that existed: (1) at the time of the occurrence of the accidental personal injury that caused the death of the covered employee; or (2) on the date of disablement from the occupational disease that caused the death of the covered employee.” The case law, from the earliest days of the workers’ compensation law, makes clear that, notwithstanding the statutory references to dependency at the time of the employee’s death, the fact of dependency, with respect to death benefits, is determined and becomes fixed as of the time of the death- ¹⁷⁷ causing injury. See Adleman v. Ocean Acc. & Guar. Corp., 130 Md. 572 , 101 A. 529 (1917); Community Baking Co. v. Reissig, 164 Md. 17 , 164 A. 176 (1933); Meyler v. Mayor and City Council, 179 Md. 211 , 17 A.2d 762 (1941). The fact of dependency—whether the claimant was wholly or partly dependent on the employee—is therefore to be determined in accordance with the circumstances existing at the time of the accident, not at the time of death.

The direct or implicit reference in §§ 9-681 and 9-682 to the claimant being a dependent at the time of the employee’s death means only that, to be entitled to the death benefit, the claimant must survive the employee. That approach is consistent with, and indeed is compelled by, § 9-685, which provides that, if a dependent of the employee dies, the right to any death benefit that is payable to the dependent and remains unpaid at the dependent’s death survives to the “surviving dependents of the covered employee,” and, if there are none, does not survive. Petitioner’s position throughout this case has been that dependency for purposes of § 9-632 must be determined as of the date of the accident, as it is under § 9-679, and that, as Kenneth was not dependent on his mother at the time of her accident, he is not entitled to receive the award for permanent partial disability that, but for her death, would have been paid to Ms. Keller. It urges that the Maryland courts have “uniformly held that a ‘dependent’ person is one who relied on actual support from the injured worker at the time of the worker’s accidental injury,” that its view “allows a predictable scheme of compensation,” and that the contrary view “fails the test of logic and leads to absurd, inconsistent, and inequitable results.” The argument is based largely on the notion that the word “dependent” is, in effect, a defined term—a “word of art”—in the workers’ compensation law, defined in § 9-679 as a person who is dependent on the covered employee at the time of the accident or disablement, and that the Legislature would not have used the same word in § 9-632 (or § 9-640 or § 9-646) with the intent that it have a different meaning than it has in § 9-679.

If the Legislature meant for dependency to ¹⁷⁸ be determined in a different manner under § 9-632, petitioner avers, it would have said so. The Commission and the two lower courts rejected that argument. The circuit court focused on § 9-632(d) and (e), which speak of what happens if, on the date of the employee’s death, the employee either did or did not have a legal obligation to support a surviving spouse, as indicative of an intent that dependency under that section also be determined as of the date of the employee’s death. The Court of Special Appeals took a somewhat different approach in reaching the same result.

It focused on the statement in § 9-632(c) that the right to compensation survives to the surviving dependents “as the Commission may determine,” concluding from that statement that the Commission has discretion to determine whether dependency is to be fixed at the time of accident or the time of death. Although, as the Court of Special Appeals observed, the statute is not free of ambiguity, we believe that petitioner’s view is the more accurate one—the one most consistent with the likely legislative intent. The initial workers’ compensation law (1914 Md. Laws, ch. 800) did not contain a survival provision with respect to the various disability benefits payable to employees. That omission was consistent with the general rule noted by Professor Larson that a workers’ compensation award “is a personal one, based upon the employee’s need for a substitute for his lost wages and earning capacity.” 4 Larson’s Workers’ Compensation Law, § 58.42 (1998).

As we pointed out in Cambridge Mfg. Co. v. Johnson, 160 Md. 248, 253 , 153 A. 283, 285 (1931), it was not the intent of the 1914 Legislature “to enrich persons who were strangers to the injured party and who were not directly affected by his loss of earning capacity” or “to create an insurance to the injured party, which upon his death would form a part of his estate.” The initial Act did, however, provide a death benefit for dependents of employees who died as the result of a compensable accident. Section 35 provided that if the injury caused death within two years and there were “wholly dependent ¹⁷⁹ persons at the time of the death,” the employer was to pay an amount equal to 50% of the employee’s average weekly wage for the remainder of the period between the date of death and eight years after the date of the injury, subject to a maximum and a minimum. If there were partly dependent persons, the same benefit was to be paid for the period of eight years after the date of injury, subject to a lower maximum.

The law presumed certain persons to be wholly dependent for support on a deceased employee—(1) a wife, (2) a physically or mentally incapacitated husband, and (3) a child either under 16 or over 16 if physically or mentally incapacitated, who was “living with or dependent upon the parent at the time of the injury or death.” (Emphasis added.) In all other cases, the law said, questions of dependency were to be determined in accordance with the facts in each case “existing at the time of the injury resulting in death of such employee,” although a person could not be considered a dependent unless he or she was a parent, grandparent, stepchild, grandchild, or sibling of the employee. (Emphasis added.) The statutory requirement that the dependency of one not presumed to be dependent be determined based on the facts existing at the time of injury was quickly enforced by this Court. In Adleman v. Ocean Accident & G. Cor., supra, 130 Md. 572 , 101 A. 529 , an employee died in December, 1914, from an accidental injury. In April, 1915, the Commission made an award to the employee’s dependent unmarried sister.

In June, 1915, the sister married, thereby terminating her actual dependency on her brother. We held that the award did not terminate by virtue of the marriage, concluding that a contrary result would be inconsistent with the direction that dependency be determined based on the facts existing at the time of the injury. We contrasted the situation of a surviving spouse, as to whom the statute specifically terminated benefits upon remarriage. That has remained our unwavering view since Adleman .

Although the death benefit provision has been amended many times since 1914, to increase the amount and duration of the benefits, to lengthen to seven years the requirement that ¹⁸⁰ death ensue within a fixed time after the injury, to remove the presumption of dependency initially afforded to spouses and minor children, and to delete the requirement that a person be a parent, grandparent, child, stepchild, or sibling in order to be a dependent, we have consistently construed the death benefit provision as requiring that the fact of dependency be determined in accordance with the circumstances existing at the time of the accident, even to the point of including that requirement as part of the definition of “dependent.” See, for example, Meyler v. Mayor and City Council, supra, 179 Md. 211, 215