Planning Research Corp. v. Elford

BLOOM, Judge. Planning Research Corporation (PRC) and Birmingham Fire Insurance Co. (Birmingham) appeal from a judgment of the Circuit Court for Prince George’s County in favor of appellees, Clarence Elford (Claimant), and the Subsequent Injury Fund (the Fund). On appeal, appellants present for our consideration the following issues, which we have slightly rephrased for clarity: (1) whether the workers’ compensation commission erroneously awarded temporary total disability benefits to be paid concurrently with permanent partial disability benefits; (2) whether the trial court erred in precluding appellant from presenting rebuttal testimony; and (3) whether the trial court erroneously instructed the jury as to the specific issues to be decided. Finding no error, we shall affirm the judgment of the circuit court.

Facts On 23 August 1988, Claimant suffered a work-related back injury while employed with PRC, and sought workers’ compensation benefits, claiming to be permanently, partially disabled. A hearing was scheduled before the Workers’ Compensation Commission. ¹⁴¹ After the hearing, the Commission found that Claimant was permanently partially disabled and awarded him compensation accordingly. The Commission also concluded that “the overall disability of the Claimant does not exceed 50% of the body as a whole and because apportionment is not applicable, the Subsequent Injury Fund is not liable at this time.” Claimant was also awarded vocational rehabilitation benefits, to “be paid simultaneously with his permanent partial disability benefits.” Appellants then noted an appeal to the Circuit Court for Prince George’s County and moved for summary judgment. After the motion was denied, the matter was submitted to a jury, which returned a verdict in favor of Claimant.

This appeal followed. L Appellants first contend that the Commission erred in awarding Claimant simultaneous payments of temporary total and permanent partial disability benefits, relying on Md.Code Ann. (1991 Repl. Volume & 1996 Supp.), § 9-631 of the Labor and Employment Article (L. & E.). L. & E. § 9-631 provides, “Compensation for a permanent partial disability under this Part IV of this subtitle shall be paid in addition to and consecutively with compensation for a temporary total disability under Part III of this subtitle.” Appellants’ argument that a claimant may not concurrently receive témpora,ry total and permanent partial disability benefits misses the mark.

The Commission made no such award. Rather, Claimant was awarded: “[Cjompensation for permanent partial disability ... pursuant to Section 9-630 of the Labor Article; and ... that ... claimant be referred to RORS for retraining and job placement and the employer and insurer shall pay the claimant compensation at the rate of $382.00 per week during said period and that said payments shall be paid simultaneously with permanent partial disability benefits.” Appellants have confused an award of compensation during “retraining and job placement” with an award of temporary total disability benefits. A “period of temporary disability is ¹⁴² the healing period or the time during which the worker is wholly disabled and unable by reason of his injury to work,” Gorman v. Atlantic Gulf & Pac. Co., 178 Md. 71, 78 , 12 A.2d 525 (1940), “[w]hile vocational rehabilitation services means professional services reasonably necessary during or after or both during and after medical treatment to enable a disabled covered employee, as soon as practical, to secure suitable gainful employment.” L. & E. § 9-670(d)(l).

To be sure, L. & E. § 9-631 prohibits the concurrent payment of benefits under Parts III and IV of Title 9, Workers’ Compensation, of the Labor & Employment Article; but it is Part XI, not Parts III and IV, that provides for vocational rehabilitation services. We believe that if the General Assembly had intended to