Spevak v. Montgomery Cnty.

Patrick Spevak v. Montgomery County, Maryland, No. 44, September Term, 2021. Opinion by Getty, C.J. WORKERS’ COMPENSATION — SERVICE-CONNECTED TOTAL DISABILITY RETIREMENT BENEFITS — “SIMILAR BENEFITS” The Court of Appeals held that permanent partial disability benefits and service-connected total disability retirement benefits are “similar benefits” under Md. Code (1991, 2016 Repl. Vol., 2021 Supp.), Labor and Employment Article § 9-610, that are subject to the offset provision. Circuit Court for Montgomery County Case No. 434813V Argued: March 7, 2022 IN THE COURT OF APPEALS OF MARYLAND No. 44 September Term, 2021 PATRICK SPEVAK v. MONTGOMERY COUNTY, MARYLAND *Getty, C.J. Watts, Hotten, Booth, Biran, Adkins, Sally D., (Senior Judge, Specially Assigned) McDonald, Robert N., (Senior Judge, Specially Assigned) JJ.

Opinion by Getty, C.J. Watts, J., dissents. Filed: August 15, 2022 *Getty, C.J., now a Senior Judge, participated in Pursuant to the Maryland Uniform Electronic Legal Materials the hearing and conference of this case while an Act (§§ 10-1601 et seq. of the State Government Article) this active member of this Court; after being recalled document is authentic. pursuant to Md. Const., Art. IV, § 3A, he also 2023-01-17 16:17-05:00 participated in the decision and adoption of this opinion. Gregory Hilton, Clerk Patrick Spevak, Petitioner, served as a firefighter in Montgomery County, Maryland from 1979 until 2010. In 2007, Mr. Spevak experienced a service-related back injury, which ultimately led to his retirement in 2010.

Upon retirement, Mr. Spevak began collecting service-connected total disability retirement benefits. Several years after Mr. Spevak retired, he developed a compensable degree of occupational hearing loss related to his employment. Mr. Spevak filed for workers’ compensation benefits, and the Workers’ Compensation Commission (the “Commission”) found that Mr. Spevak’s hearing loss entitled him to $322.00 payable weekly for a certain number of weeks. Although Mr. Spevak was awarded compensation for his hearing loss, the Commission determined that the entirety be offset under Md. Code (1991, 2016 Repl.

Vol., 2021 Supp.), Labor and Employment Article (“LE”) § 9-610. The Circuit Court for Montgomery County affirmed the Commission’s use of the offset provision and granted the cross-motion for summary judgment of the Respondent, Montgomery County (the “County”). The Court of Special Appeals affirmed the circuit court. In this case, we consider whether the Court of Special Appeals erred in affirming the circuit court’s grant of summary judgment.

Precisely, we consider whether Mr. Spevak’s service-connected total disability retirement benefits are “similar” to his permanent partial disability workers’ compensation benefits. For the reasons explained below, we affirm the Court of Special Appeals. BACKGROUND Mr. Spevak served as a firefighter in Montgomery County, Maryland from 1979 until 2010 when he retired due to a service-related back injury that occurred in 2007. Upon his 2010 retirement, Mr. Spevak began collecting $1,859.07 per week in service-connected total disability retirement benefits.

Several years after his retirement, Mr. Spevak developed hearing loss related to his employment from “exposure to loud noises, such as fire engines, sirens, and alarms.” In light of his hearing loss, Mr. Spevak filed a workers’ compensation claim on June 24, 2016. A hearing occurred on March 1, 2017, and the Commission issued an order on March 28, 2017 finding that Mr. Spevak’s employment as a firefighter caused his hearing loss. The order instructed the County to reimburse Mr. Spevak for the cost of his hearing aids. On April 3, 2017, Mr. Spevak filed issues with the Commission to determine the nature and extent of his hearing loss.

In a hearing held on June 16, 2017, the County argued that Mr. Spevak’s compensation for his hearing loss should be offset because Mr. Spevak received service-connected total disability retirement benefits due to his back injury, which compensated him for wage loss. On July 13, 2017, the Commission issued an order finding that Mr. Spevak suffered “21% loss of use of the left ear/hearing loss (26.25 weeks) and 0% loss of use of both ears (tinnitus) (0 weeks); at the rate of $322.00, payable weekly . . . for a period of 26.25 weeks.” The Commission also found that the full amount awarded for Mr. Spevak’s hearing loss was offset because his “weekly retirement benefits exceed [the] permanent partial disability rate.” Mr. Spevak filed a petition for judicial review in the Circuit Court for Montgomery County on August 1, 2017. Three days later, this Court published its opinion in Reger v. Washington County Board of Education, which interpreted the offset provision contained in LE § 9-610. 455 Md. 68 (2017). On November 22, 2017, Mr. Spevak filed a motion to 2 remand to the Commission.

A hearing before the Commission occurred on May 1, 2019 to consider (1) whether Mr. Spevak’s hearing loss compensation is subject to an offset, and (2) whether the Subsequent Injury Fund1 should be a party to the case. In an order issued on May 3, 2019, the Commission determined that it lacked jurisdiction to reconsider the offset and dismissed the Subsequent Injury Fund as a party due to a lack of evidence showing liability. On February 26, 2020, Mr. Spevak filed a motion to reinstate his appeal. Over the County’s objection, Mr. Spevak’s appeal was reinstated on April 29, 2020.

On May 5, 2020, Mr. Spevak filed a motion for summary judgment arguing that the Commission erred in offsetting Mr. Spevak’s hearing loss compensation. The County opposed the motion and filed a cross-motion for summary judgment, which the circuit court granted on October 14, 2020. Mr. Spevak appealed to the Court of Special Appeals. The Court of Special Appeals affirmed the circuit court’s grant of summary judgment.

Spevak v. Montgomery Cty., 251 Md. App. 674 , 707 (2021). The intermediate 1 Clifford B. Sobin, a legal commentator on Maryland Workers’ Compensation law, described the Subsequent Injury Fund as follows: Frequently, employees who already have a permanent impairment suffer a subsequent work-related injury that results in a second permanent disability. Many times the employee’s combined disability is substantially greater than it would have been from the subsequent injury alone. The employer is only liable for the compensation payable for the subsequent injury.

To make up the difference in certain circumstances, the Legislature created the Subsequent Injury Fund and provided for additional compensation to be paid by that Fund if specified conditions were met. Clifford B. Sobin, Maryland Workers’ Compensation, § 1:13 at 11 (2021–2022 ed.) (footnotes omitted). 3 appellate court reasoned that Mr. Spevak’s “service-connected total disability retirement compensates for any and all work-related injuries he sustained in his employment with Montgomery County” and therefore precluded him from “receiv[ing] a permanent partial workers’ compensation award.” Id. Mr. Spevak petitioned for a writ of certiorari, which we granted on November 10, 2021. Spevak v. Montgomery Cty., 476 Md. 417 (2021).

In this case, we consider whether the Court of Special Appeals erred in affirming the circuit court and the Commission regarding the applicability of the offset provision in LE § 9-610. For the reasons explained below, we affirm the Court of Special Appeals. STANDARD OF REVIEW When reviewing decisions of an administrative agency, this Court does not review the decisions of the circuit court or the Court of Special Appeals. Broadway Servs., Inc. v. Comptroller, 478 Md. 200, 214 (2022).

In an appeal of a Commission decision, this Court shall determine whether the Commission “(1) justly considered all of the facts about the accidental personal injury, occupational disease, or compensable hernia; (2) exceeded the powers granted to it under this title; or (3) misconstrued the law and facts applicable in the case decided.” LE § 9-745(c). Generally, decisions of the Commission are “presumed to be prima facie correct[.]” LE § 9-745(b)(1). The presumption of correctness does not extend to questions of law, which this Court independently reviews. Reger, 455 Md. at 95 (citing Hollingsworth v. Severstal Sparrows Point, LLC, 448 Md. 648, 655 (2016)).

A court shall grant a motion for summary judgment “if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” Md. Rule 2-501(f). 4 This Court reviews whether a court correctly granted a motion for summary judgment de novo. Chateau Foghorn LP v. Hosford, 455 Md. 462, 482 (2017) (citations omitted). In reviewing a grant of summary judgment, we independently review the record in the light most favorable to the nonmoving party and “determine whether the parties properly generated a dispute of material fact, and, if not, whether the moving party is entitled to judgment as a matter of law.” Castruccio v. Estate of Castruccio, 456 Md. 1, 16 (2017) (citations omitted). DISCUSSION A. An Overview of Workers’ Compensation During the 1910s, states across the nation began adopting workers’ compensation statutes in response to “(1) increases in dangerous employment; (2) public awareness of the problems associated with workplace accidents; (3) employers’ concerns about a liability climate unfavorable to them; and (4) a more than doubling of the number of workers[] in labor unions.” Clifford B. Sobin, Maryland Workers’ Compensation, § 1:1 at 2 (2021–2022 ed.).

By 1930, most states enacted workers’ compensation legislation. Id. The General Assembly enacted Maryland’s Workers’ Compensation Act in 1914. 1914 Md. Laws, ch. 800. In the original enactment of the Workers’ Compensation Act, local government employees received unique treatment.

Blevins v. Baltimore Cty., 352 Md. 620, 635 (1999). Initially, local government employees were not “entitled to the benefits” of the Workers’ Compensation Act if a “State law, City Charter or Municipal Ordinance, provision equal or better than that given under the terms of this Act is made for municipal employees 5 injured in the course of employment[.]” 1914 Md. Laws, ch. 800. In 1971, the General Assembly enacted an amended Workers’ Compensation Act, which provided, “whether as part of a pension system or otherwise, any benefit or benefits are furnished [to the] employees of employers[,] . . . the benefit or benefits when furnished by the employer shall satisfy and discharge . . . the liability or obligation of the employer[.]” 1971 Md. Laws, ch. 785. The statute continued to provide that “[s]hould any benefits so furnished be less than those provided for in this Article[,] the employer shall be liable to furnish the additional benefit as will make up the difference between the benefit furnished and the similar benefit required” under the Workers’ Compensation Act.

Id.; See Sobin, § 1:9 at 9–10 (“Whenever, as part of a governmental pension system, benefits are paid by the employer/insurer, those benefits (if they are equal to or greater than any payable workers’ compensation benefits) satisfy the employer’s obligation to pay workers’ compensation benefits.”) (footnote omitted). The amount payable to an employee entitled to permanent disability benefits is determined by four factors: “(1) the year of the injury; (2) the average weekly wage of the claimant; (3) the portions of the body that are injured; and (4) the percentage of disability awarded.” Sobin, § 13:1 at 366; See LE § 9-602 (“Average Weekly Wage”); LE § 9-603 (“State Average Weekly Wage”); LE § 9-604 (“Computation of Compensation”); LE §§ 9-614 et seq. (“Temporary Partial Disability”); LE §§ 9-618 et seq. (“Temporary Total Disability”); LE §§ 9-625 et seq.

(“Permanent Partial Disability”); LE §§ 9-635 et seq. (“Permanent Total Disability”). The average weekly wage is relevant for permanent disability benefits because, depending on the benefits awarded, they are calculated as a 6 specific fraction of the average weekly wage not to exceed a specified fraction of the State average weekly wage. LE §§ 9-629–9-630.

In Maryland, employees of governmental entities or quasi-public corporations are entitled to claim workers’ compensation benefits and pension benefits simultaneously. When an employee collects workers’ compensation benefits and pension benefits, the Workers’ Compensation Act requires an analysis as to whether either benefit may be offset because the payment of the other benefit satisfies the employer’s obligation. LE § 9-610. Service-connected disability retirement benefits are “[d]isability benefits for injuries sustained as a result of the job.” Sobin, § 16:1 at 505.

Clifford B. Sobin, a legal commentator on Maryland Workers’ Compensation law, identified two primary principles that guide the analysis: (1) “the General Assembly wished to provide only a single recovery for a single injury for government employees covered by both a pension plan and [workers’] compensation” and (2) “[offsetting] of benefits resulting in a reduction of either compensation payments or pension payments only occurs when the benefits are similar.” Id. at 506 (citing Frank v. Baltimore Cty., 284 Md. 655, 659 (1979)); Newman v. Subsequent Inj. Fund, 311 Md. 721, 728 (1988). B. Parties’ Contentions Mr. Spevak argues that the Court of Special Appeals did not apply the appropriate standard to determine if benefits are similar under LE § 9-610. He asserts that prior caselaw from this Court identifies that the appropriate test to determine if benefits are similar is the “same injury” test.

Under the same injury test, Mr. Spevak argues that compensation for his hearing loss should not be offset because his back injury arose nine years before he 7 experienced a compensable degree of occupational hearing loss. Mr. Spevak asserts that the circuit court and Court of Special Appeals improperly invoked the wage loss theory,2 which this Court has previously rejected in Newman v. Subsequent Injury Fund, 311 Md. at 727–28. The County emphasizes that this case involves service-connected total disability retirement benefits. The County asserts that service-connected total disability retirement benefits compensate for all disabilities that occurred during the employment.

Failing to apply the offset, from the County’s perspective, results in duplicative recovery for the same loss. The County contends that if the offset does not apply, Mr. Spevak would collect more than the maximum compensation available in a workers’ compensation case if he received permanent total disability benefits and more than his weekly wage at the time of his retirement. 2 The wage loss theory stems from Arthur Larson’s commentary in his work titled, The Law of Workmen’s Compensation. He stated that [w]age-loss legislation is designed to restore to the worker a portion, such as one-half to two-thirds, of wages lost due to the three major causes of wage-loss: physical disability, economic unemployment, and old age. The crucial operative fact is that of wage loss; the cause of wage loss merely dictates the category of legislation applicable.

Now if a [worker] undergoes a period of wage loss due to all three conditions, it does not follow that [the worker] should receive three sets of benefits simultaneously and thereby recover more than [the worker’s] actual wage. [The worker] is experiencing only one wage loss and, in any logical system, should receive only one wage-loss benefit. 4 Arthur Larson, The Law of Workmen’s Compensation § 97.10 (1979). We disagree that the courts below invoked the wage loss theory. The basis for our holding is that Mr. Spevak’s service-connected total disability retirement benefits and his permanent partial disability workers’ compensation benefits are “similar benefits” under LE § 9-610. 8 C. Statutory Interpretation Our chief objective when interpreting statutes “is to ascertain the General Assembly’s purpose and intent when it enacted the statute.” Moore v. RealPage Util. Mgmt., Inc., 476 Md. 501, 510 (2021) (quoting Berry v. Queen, 469 Md. 674, 687 (2020)).

We assume that the General Assembly’s intent is “expressed in the statutory language” and therefore begin our analysis with the plain language of the statute. Id. (citations omitted). Reading the statute as a whole, we aim to “ensure that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory.” Id.

Further, we avoid constructions that are illogical, unreasonable, or inconsistent with common sense. United Bank v. Buckingham, 472 Md. 407, 424 (2021). We begin our plain language analysis by looking to LE § 9-610(a), which states in pertinent part: [I]f a statute, charter, ordinance, resolution, regulation, or policy, regardless of whether part of a pension system, provides a benefit to a covered employee of a governmental unit or a quasi-public corporation that is subject to this title under § 9-201(2) of this title . . . payment of the benefit by the employer satisfies, to the extent of the payment, the liability of the employer and the Subsequent Injury Fund for payment of similar benefits under this title. (Emphasis added).

In Newman, this Court first interpreted the “similar benefits” language contained in LE § 9-610(a), then codified as Article 101, § 33(c). 311 Md. at 722 . Article 101, § 33 “included a comparison between the employer-provided benefit and a ‘similar benefit’ required under the Workers’ Compensation Act.” Reger, 455 Md. at 105 . We held that, although “similar benefit” appears at the end of the provision, “[i]t is perfectly clear that 9 the word ‘similar’ in the phrase ‘the benefit furnished and the similar benefit required in this article,’ near the end of the section, qualifies the provision at the beginning of the section as to the benefits furnished [to the] employees by employers.” Newman, 311 Md. at 724 . Despite Newman being the first case where this Court interpreted “similar benefit” in the offset provision, prior decisions applying the offset provision reflect that “the tenor of [Article 101, § 33(c)] . . . is that the offsetting benefits be ‘similar’ ones.” Reger, 455 Md. at 110 ; Newman, 311 Md. at 724 .

The Newman Court identified that “[u]pon reading [Article 101, § 33(c),] the scheme that unmistakably emerges is that the General Assembly wished to provide only a single recovery for a single injury[.]” Newman, 311 Md. at 725 (quoting Frank, 284 Md. at 659 ) (emphasis in original). Since Newman, we have consistently identified that the same injury standard is the appropriate standard to determine whether benefits are similar under the offset provision. See Blevins, 352 Md. at 644 (“[I]t is evident that the General Assembly did not intend to make any substantive change to the law in deleting the word ‘similar.’ . . . The test for the set off under [LE] § 9-610 is the same as it was under [Article 101] § 33[.]”); Fikar v. Montgomery Cty., 333 Md. 430 , 438–39 (1994) (applying the single injury test to determine if the petitioner’s vocational rehabilitation benefits are similar to the petitioner’s disability pension benefits).

Most recently, we confirmed the same injury standard in Reger, 455 Md. at 135 . In Reger, we stated that the General Assembly sought to provide “only a single recovery for a single injury for government employees covered by both a pension plan and 10 [workers’] compensation” and prevent employees from receiving a double recovery for the same injury. 455 Md. at 116–17 (quoting Fikar, 333 Md. at 435 ). Consistent with our prior interpretations and applications of LE § 9-610, we conclude that the same injury standard is the proper test to identify whether benefits are subject to an offset under LE § 9-610. To confirm our reading of the plain language, it has been “the modern tendency of this Court . . . to continue the analysis of the statute beyond the plain meaning to examine” the “archival legislative history of relevant enactments.” In re: S.K., 466 Md. 31 , 50 (2019) (citations omitted).

This confirmatory process ensures that our “plain language interpretation of the statute is consistent with the legislature’s intent.” Moore, 476 Md. at 514 (citing In re: S.K., 466 Md. at 50). This Court’s decision in Reger carefully describes the legislative history and intent behind the offset provision in detail. Reger, 455 Md. at 102–17; Blevins, 352 Md. at 635– 41. The legislative history of the offset provision, now contained in LE § 9-610, clearly demonstrates the General Assembly’s intent to prevent duplicative recovery.

See Newman, 311 Md. at 728 (citing Oros v. Mayor & City Council of Balt., 56 Md. App. 685 , 693–94 (1983)). As described earlier, the first enactment of workers’ compensation law occurred in 1914. The preamble acknowledged the “heavy burden” the State and taxpayers bear in providing “care and support for . . . injured [workers] and their dependents[.]” 1914 Md. Laws, ch. 800. Aside from adding new categories of covered individuals, the original enactment remained unchanged until 1970 when “as part of a bill deleting the requirement that 11 employment be ‘extra-hazardous’ to be covered, the entire provision dealing with non-military State and local government personnel was repealed.” Blevins, 352 Md. at 636 ; 1970 Md. Laws, ch. 741.

In 1971, the General Assembly enacted a successor provision, which included the “similar benefit” language for the first time. Reger, 455 Md. at 105 . In 1991, three years after this Court decided Newman, as part of Maryland’s code revision,3 the General Assembly repealed Article 101, and recodified it as Title 9 of the Labor and Employment Article. Id. at 113 .

The offset provision, recodified as LE § 9-610, “lacked the crucial ‘similar benefit’ language of its predecessor.” Id. at 114. This Court addressed the removal of the “similar benefit” language in Blevins v. Baltimore County and determined that “it is evident that the General Assembly did not intend to make any substantive change to the law in deleting the word ‘similar.’” 352 Md. at 644 . This Court reasoned that “a change in a statute as part of a general recodification will ordinarily not be deemed to modify the law unless the change is such that the intention of the Legislature to modify the law is unmistakable.” Id. at 642 (quoting Duffy v. Conaway, 295 Md. 242, 257 (1983)) (emphasis omitted). In determining whether the General Assembly intended to make a substantive change, this Court presumed that the 3 “As we have noted in the past, ‘[c]ode revision is a periodic process by which statutory law is re-organized and restated with the goal of making it more accessible and understandable to those who must abide by it.’” United Bank, 472 Md. at 427 n.6 (quoting Nationwide Mut.

Ins. Co. v. Shilling, 468 Md. 239 , 251 n.9 (2020)). “Maryland [c]ode [r]evision began in 1970 as a long-term project to create a modern comprehensive code when Governor Marvin Mandel appointed the Commission to Revise the Annotated Code. This formal revision of the statutory law for the General Assembly was coordinated by the Department of Legislative Services. Code [r]evision was completed in 2016 with the enactment by the General Assembly of the Alcoholic Beverages Article.” Id.

(quoting Nationwide Mut. Ins. Co., 468 Md. at 251 n.9). 12 General Assembly was aware of the holding in Newman and therefore sought evidence of intent to substantively change the law. Id.

The Revisor’s Note and Report4 accompanying the recodification did not provide a basis for this Court to hold that the General Assembly intended to substantively change LE § 9-610. Id. at 643–44. “[I]n apparent response to our holding in Blevins,” the General Assembly added “similar” into LE § 9-610 in 1999. Reger, 455 Md. at 116 . The General Assembly stated its purpose was to “clarify[] that certain workers’ compensation benefits should be offset only for a payment of certain disability retirement benefits[.]” Id.; 1999 Md. Laws, ch. 340.

We have consistently concluded that the General Assembly intended the offset provision in LE § 9-610 to preclude duplicative recovery for the same injury. In Newman, we stated that the General Assembly intended to “preclude double-dipping into the same pot of comparable benefits.” Newman, 311 Md. at 728 (emphasis in original) (citation omitted). In Reger, we acknowledged that the intermediate appellate court in Nooe v. Mayor & City Council of Baltimore offered the perspective of Chief Judge Charles E. Orth, Jr. who identified the General Assembly’s “concern as to ‘governmental authorities being 4 As we explained in Blevins, neither the Revisor’s Note nor the Report indicated a legislative intent to alter the substantive meaning of LE § 9-610. 352 Md. at 644 . The Report accompanying the code revision stated that the “basic thrust of the revision is formal; the primary purposes of the work are modernization and clarification, not policymaking.” The Report also noted that “[e]very effort is made to ensure that a proposed revision conforms as nearly as possible to the intent of the General Assembly, and all [of]