Sanchez v. Potomac Abatement, Inc.

MURPHY, J. This case presents the issue of whether an injured employee’s permanent partial disability benefits (PPD) are “capped” by the State average weekly wage (SAWW) in effect on the day when the injury occurred, or by the SAWW for the year in which the employee’s PPD commence. Edy Sanchez, Petitioner, who was injured on September 22, 1998, argues that his award should be based upon the 2000 SAWW because 2000 is the year in which his right to PPD was established. After this argument was rejected by the Workers’ Compensation Commission (the Commission), the Circuit Court for Baltimore County, and the Court of Special Appeals, 1 Petitioner filed a petition for writ of certiorari in which he presented this Court with a single question: ⁷⁹ Whether the Maryland Statewide Average Weekly Wage index [ ] used to calculate and establish the maximum or cap of weekly compensation resulting from a PPD [permanent partial disability] of 185 weeks is that index on the date of the accident or on the date of the right to such compensation commences[?] We granted that petition. 409 Md. 47 , 972 A.2d 861 (2009). For the reasons that follow, we hold that the applicable SAWW index is the index in effect on the date of the employee’s injury.

We shall therefore affirm the judgment of the Court of Special Appeals. Background Each year the Department of Labor, Licensing, and Regulation determines the “State Average Weekly Wage” as required by § 9-603 of the Labor and Employment Article of the Maryland Code (LE). 2 Petitioner was awarded 185 weeks of benefits under LE § 9-629, which provides: If a covered employee is awarded compensation for a period equal to or greater than 75 weeks but less than 250 weeks, the employer or its insurer shall pay the covered employee weekly compensation that equals two-thirds of the average weekly wage of the covered employee but does not exceed one-third of the State average weekly wage. (Emphasis added). According to Petitioner, because the 2000 SAWW must be used to calculate the cap, he is entitled to weekly benefits in the amount of $211.00.

On the other hand, if the 1998 SAWW is used, Petitioner is entitled to weekly benefits in the amount of $191.00. 3 ⁸⁰ The unreported opinion of the Court of Special Appeals includes the following factual background: In September 1998, Sanchez suffered an injury in the course of his employment with the [Respondent], Potomac Abatement, Inc. Eight years later, on August 3, 2006, [t]he Commission granted Sanchez an award, to be paid by [Respondent] or its insurer, the co-[respondent], AIU Insurance Co. The award consisted of two parts. First, Sanchez was awarded compensation for a TTD [temporary total disability], to be paid retroactively for the period of March 4,1999, to January 13, 2000. The Commission also awarded Sanchez compensation for a PPD, to be paid for a period beginning on January 14, 2000. This latter portion of the award is the subject of Sanchez’s challenge.

The Commission concluded that Sanchez’s injury is an “other case,” under Section 9-627(k), and that he has lost the industrial use of 30% of his body. Accordingly, the Commission calculated that Sanchez is entitled to 150 weekly payments (30% of 500), qualifying him as a Tier 2 PPD claimant. As a Tier 2 PPD claimant, Sanchez would be entitled to the lesser of two thirds of his AWW [average weekly wage] and one third of the SAWW [state average weekly wage]. In this case, one third of the SAWW was the lesser, and therefore applicable, amount.

Pursuant to its annual notices of the SAWW, the Commission applied the value of the SAWW for the year when Sanchez was injured—$573 for 1998—and calculated that Sanchez was entitled to weekly payments of one third of that amount, ie., $191. Commission, Maximum Rate of Benefits for Calendar Year Beginning January 1,1998.... On August 28, 2006, Sanchez filed a petition for judicial review in the Circuit Court for Baltimore County, requesting a jury trial. Sanchez then filed a motion for partial summary judgment, initially arguing that, for each weekly payment, the Commission should have applied the SAWW of the year in which the payment was due—ie., the 2000 SAWW for payments due in 2000, the 2001 SAWW for payments due in 2001, and the 2002 SAWW for payments ⁸¹ due in 2002.

However, before the court ruled on that motion, Sanchez changed his argument, asserting that the Commission should have solely used the SAWW for the year 2000, the year that his right to the PPD award commenced. Eventually, the court held a hearing on the matter, and then denied the motion on September 19, 2007. Based on the ensuing jury trial and verdict, the circuit court did conclude that Sanchez had suffered impairment to 37% of his body, (rather than 30% as the Commission had found), and that he was therefore entitled to 185 rather than 150 weekly payments. Accordingly, the court vacated the Commission’s award and remanded the case for the Commission to adjust the award.

As noted above, Petitioner requests that this Court reverse the judgment of the Court of Special Appeals, and direct that his PPD award be “adjusted.” Discussion Section 9-601 of the Labor and Employment Article provides: A provision of this subtitle may not be construed to change: (1) a law relating to an accidental personal injury or an occupational disease, that occurred before the effective date of the provision and for which a claim is made under this title; or (2) the payment basis in effect when an accidental personal injury or an occupational disease, for which a claim is made under this title, occurred. (Emphasis added). “The higher the AWW, the higher the benefits the claimant receives up to any statutory caps in effect for the year in which the injury occurred.” Richard P. Gilbert, Maryland Workers’ Compensation Handbook § 9.06 (3rd ed.2007). (Emphasis supplied). According to Petitioner, however, because LE § 9-629 does not expressly state which year’s SAWW should be used to determine the cap on Petitioner’s benefits that ambiguity should be resolved in his ⁸² favor. 4 While rejecting that argument, the Court of Special Appeals stated: Notwithstanding Sanchez’s Herculean efforts to persuade us to make new law, we conclude that the issue Sanchez asks us to decide is already settled.

This Court has previously stated that the SAWW of the year of the accidental injury controls the amount of a PPD award. Marshall v. Univ. of Md. Med. Sys. Corp., 161 Md.App. 379, 386 [ 869 A.2d 391 ] (2005); cf. § 9-628 (Tier 1 PPD award capped by statutory ceiling value determined by date of injury).

Granted, this case is distinguished by the fact that Sanchez’s right to PPD payments commenced years after his injury. See Waters v. Pleasant Manor Nursing Home, 361 Md. 82, 99 [ 760 A.2d 663 ] (2000). Nevertheless, “[t]he general rule in workers’ compensation benefit cases is that the date of injury controls for determining compensation benefits.” Id. at 96 [ 760 A.2d 663 ]. The date of injury is considered to be the date of the accident, not the date on which the resulting disability manifests itself.

Id. at 99 [ 760 A.2d 663 ]; see also DeBusk v. Johns Hopkins Hosp., 342 Md. 432, 440 [ 677 A.2d 73 ] (1996). (interpreting statute of limitations applicable to workers’ compensation claims). The statutory basis of the general rule is Section 9-601, which “fixe[s] the compensation rate as of the time of the accidental injury.” Baltimore County v. Fleming, 113 Md. App. 254, 258 [ 686 A.2d 1161 ] (1996). In particular, § 9-601 states: “A provision of this subtitle may not be construed to ⁸³ change: ...

(2) the payment basis in effect when an accidental personal injury ... occurred.” (Emphasis added.) Apart from case law, there has been legislative acquiescence in the Commission’s consistent practice of using the SAWW of the year of injury ever since the General Assembly first directed the Commission to cap awards using the SAWW in 1975. The Commission’s expertise in administering the workers’ compensation statutes, as well as the legislature’s acquiescence to the Commission’s longstanding practice, indicate that the Commission is operating in accord with the legislative will. As the Court of Appeals said in a different case affirming the Commission’s interpretation of the workers’ compensation statutes: [a] long-standing administrative interpretation is particularly persuasive ... when the administrative interpretation was established at the same time as the legislative enactment and continued uniformly thereafter. Balto.

Gas & Elec. v. Public Serv. Comm’n, 305 Md. 145, 161 , 501 A.2d 1307 (1986); Swarthmore Co. v. Kaestner, 258 Md. 517, 528 , 266 A.2d 341 (1970). In a like vein, the consistent construction by an administrative agency responsible for administering a statute, particularly where the administrative interpretation has been made known to the legislature in various annual reports of the agency, as in the present case, is entitled to considerable weight. National Asphalt v. Prince Geo’s Co., 292 Md. 75, 80 , 437 A.2d 651 (1981).

Falik v. Prince George’s Hosp. & Med. Ctr., 322 Md. 409, 416 [ 588 A.2d 324 ] (1991); accord Colburn v. Dep’t of Pub. Safety & Carr. Servs., 403 Md. 115, 128 [ 939 A.2d 716 ] (2008) (citing Schwartz v. Md. Dep’t of Natural Resources, 385 Md. 534, 554 [ 870 A.2d 168 ] (2005)).

As of September 1998, the date of Sanchez’s injury, the payment basis then in effect incorporated that year’s SAWW value, $573. Nothing in the law at that time entitled Sanchez to the benefit of a later SAWW value. Accordingly, the Commission was correct to apply the 1998 SAWW to Sanchez’s claim. ⁸⁴ We agree with that analysis, which is consistent with two opinions that the Court of Special Appeals has designated “as precedents” pursuant to Md. Rule 8-605.1(a). In Baltimore County v. Fleming, 113 Md.App. 254 , 686 A.2d 1161 (1996), the Court of Special Appeals stated: By enacting § 9-601, the General Assembly has fixed the compensation rate as of the time of the accidental injury or occupational disease, and it is the statute in effect at the. time of injury or disease that governs.

Prior to the enactment of § 36(11), the General Assembly, on an ad hoc basis, often would expressly provide that certain amendments would not apply to injuries predating the enactment of said amendments. See, e.g., Laws of Maryland 1974, ch. 450; 1973, ch. 671; 1971, ch. 404; 1920, ch. 456; State Accident Fund v. Jacobs, 140 Md. 622, 624 , 118 A. 159 (1922) (commenting on chapter 456, Acts of 1920). While the genesis of the principle that a claimant’s rights are governed by the statute in effect at the time of injury is the Act itself, the principle has generally found favor in case law, independent of the Act. In 1949, the Court of Appeals cited Jacobs for this proposition without discussing the fact that Jacobs involved application of a statute, chapter 456 of the Acts of 1920, which expressly provided that “nothing in this act shall affect any rights arising from injuries or disabilities received prior to June 1, 1920.” Furley v. Warren-Ehret Co., 195 Md. 339, 347-48 , 73 A.2d 497 (1949) [ (1950) ].... [I]t is important for practitioners and courts to be cognizant of the statutory genesis of the concept that the law in effect at the time of injury applies.

Departure from the statute has the potential to raise certain red herrings such as the issue of vested rights. Id. at 258-260, 686 A.2d at 1163-64 . In Marshall v. Univ. of Md. Med. Sys.

Corp., 161 Md.App. 379 , 869 A.2d 391 (2005), the Court of Special Appeals stated: Once the duration of [PPD] compensation is ascertained, the award amount is calculated according to LE sections 9- ⁸⁵ 628 to 9-630. These sections create a three tier system for PPD benefits, which depends on the number of weeks compensation is awarded. For first tier benefits, or compensation for less than 75 weeks, “the employer or its insurer shall pay the covered employee compensation that equals one-third of the average weekly wage of the covered employee but does not exceed [a maximum rate, which depends on the year of the accident.]” LE § 9-628. For second tier benefits, or 75 to 249 weeks compensation, the covered employee is paid “weekly compensation that equals two-thirds of the average weekly wage