Oros v. Mayor of Baltimore

LOWE, Judge. The three appellants in these cases are all Baltimore City police officers injured in the course of their employment, ⁶⁸⁷ who (pursuant to a General Order promulgated by the Baltimore Police Department) were paid in full under a sick leave policy during their absence from work. The police officers did not claim temporary total disability during their absence from work since the Workmen’s Compensation Act, Md.Ann.Code, Art. 101, § 33(c), states that when employees of the State or its subdivisions are provided with such benefits by their employers, the benefits will satisfy and discharge pro tanto or in full, the liability or obligation of the employer “.. . for any benefit under this article”. As we pointed out in Nooe v. City of Baltimore, 28 Md.App. 348 , 345 A.2d 134 (1975), the current § 33(c) was enacted as a delayed response to the Court of Appeals’ opinion in Montgomery County v. Kaponin, 237 Md. 112 , 205 A.2d 292 (1964), which had denied that the purpose of the statute which preceded the present § 33(c) had been to offset workmen’s compensation benefits against the benefits received from the government employer via a pension fund.

We said that when the current statute was enacted, “the General Assembly was concerned with, and attempted to prohibit, governmental authorities being obliged to pay benefits to an employee twice as a result of the same injury.” Nooe, supra, 28 Md.App. at 352 , 345 A.2d 134 . We obviously were referring to “injury” in the sense of damages since the statute itself permits a wage-loss benefit of two-thirds of a salary as temporary total disability and a permanent partial disability benefit to compensate for a loss of earning capacity, both arising from the same “injury”. Jackson v. Beth.-Fair. Shipyard, 185 Md. 335 , 44 A.2d 811 (1945).

Although the officers bowed to the inevitable in declining to claim their temporary total disability benefits in addition to the full salary sick leave pay provided them by the City, upon reaching their maximum cure they did petition the commission for permanent partial disability benefits. The nature and extent of the permanent partial disability of each was determined by the Commission and (pursuant to Art. 101, § 36(3) and (4)) the maximum entitlement was ⁶⁸⁸ established for each and payment ordered pursuant to the statute. In two of the cases (Smith and Oros), the City obtained from Commissioner Mercaldo a “credit” against its obligation to the claimants. In the case of Fischer, however, Commissioner Albert found that the City was not entitled to a set-off against an award of permanent partial disability equal to the difference between the temporary total disability rate and accident leave rate or full salary paid in lieu of temporary total disability benefits.

The City contended that during the time it had paid full salary sick leave, it was only statutorily obligated under § 36(2) to pay two-thirds of that salary. As a consequence, it reasoned, the one-third overage it paid built up a credit in the nature of a savings account that the City could offset against its future obligation for permanent partial disability when and if its nature and extent were determined. In the cases of Oros and Smith Commissioner Mercaldo agreed. Commissioner Albert, however, did not buy that argument and permitted no such credit or setoff against appellant Fischer’s permanent partial award.

That was not long to hold, however, because the City appealed to the Circuit Court for Baltimore City. Smith, Oros (and others) appealed the result reached by Commissioner Mercaldo. The judge, granting summary judgment on behalf of the City, relied on Nooe, supra, and Mazor v. State, Dep’t of Correction, 279 Md. 355 , 369 A.2d 82 (1977). He was particularly impressed by an interpretation of the legislative purpose of § 33 to preclude double-dipping as we have above paraphrased and similar reasoning in Nooe which, like Mazor , relieved both employer and insurer from workmen’s compensation obligations which were more than offset by pension benefits.

After quoting our reasoning in Nooe , the judge added the comparable Mazor rationale. “Our holding recognizes that workmen’s compensation is one facet of an overall system of wage-loss protection, and that the underlying principle of the system is to restore to the worker a portion of wages lost by physical disability, unemployment, or old age. It follows that ⁶⁸⁹ although two or more causes of wage loss may coincide, the benefits need not cumulate, for the worker experiences but one wage loss.” Id. at 363 , 369 A.2d 82 . The judge then reasoned from these opinions “.. . that although two wage loss plans may be triggered by one work related injury, § 33(c) intended that such benefits should not cumulate and that to the extent such cumulative coverage occurs, the statute provides the offset or credit remedy the employer seeks.” On appeal appellee City reinforces that reasoning by pointing out that the identical Mazor rationale was repeated in Feissner v. Prince George’s Co., 282 Md. 413, 420-421 , 384 A.2d 742 (1978). The Court of Appeals was even more explicit in Frank v. Baltimore County, 284 Md. 655, 659 , 399 A.2d 250 (1979), where Judge Digges quoted this policy concerning wage-loss legislation once again but attributed it to its source, 4 A. Larson, The Law of Workmen’s Compensation, § 97.10, at 18-19 (1979).

In all of those cases the overriding theme providing the foundation supporting the same result was the determination of legislative intent of § 33(c) which would minimize the burden on the public treasury that would result from duplicating benefits to public employees. Frank, supra at 661 , 399 A.2d 250 . Significantly, however, the tenor of that section as reflected in the Court opinions is that the offsetting benefits be “similar” ones. That adjective was, in fact, expressly used in the next-to-last sentence of the section and there is no reasonable distinguishing purpose to suggest that it was not intended to be implicit in the foregoing sentences. “Whenever by statute, charter, ordinances, resolution, regulation or policy adopted thereunder, whether as part of a pension system or otherwise, any benefit or benefits are furnished employees of employers covered under § 21(a)(2) of this article, the dependents and others entitled to benefits under this article as a result of the death of such employees, the benefit or benefits when furnished by the employer shall satisfy and discharge pro tanto or in full as the case may be, the liability or obligation of the ⁶⁹⁰ employer and the Subsequent Injury Fund for any benefit under this article.

If any benefits so furnished are less than those provided for in this article the employer or the Subsequent Injury Fund, or both shall furnish the additional benefit as will make up the difference between the benefit furnished and the similar benefit required in this article. Provided, however, the computation of the additional benefit shall be applicable only at the time of the initial award of benefits and shall not be applicable to any cost of living adjustments after the initial award, and this provision shall be retroactive to benefits received before July 1, 1980.” Art. 101, § 33(c) (emphasis added). The cases suggest that similarity requisite with the recurring use of Larson language relating to the philosophy of “wage-loss statutes” and the limiting of one “wage-loss benefit” for one “wage loss”. While Nooe was addressing temporary total disability benefits, however, which are indeed solely wage-loss benefits, both Mazor and Frank appear to have offset permanent partial disability benefits (which are more in the nature of earning capacity impairment benefits) against wage-loss pension benefits.

The similarity rationale against double-dipping in such case, would hardly seem so clear. Although workmen’s compensation in its origin was contemplated simply as a wage-loss insurance payable during actual disability, it has imperceptibly evolved into a process of payment for physical impairment, often regardless of actual or