Wills v. Baltimore County

²⁸⁵ BYRNES, Judge. These two cases, which we have consolidated for disposition, call upon us to construe Maryland Code (1991 RepLVol., 1997 Supp.), § 9-610(a) of the Labor and Employment Article (“L.E.”), which is known as the “governmental employee offset provision” of the Maryland Workers’ Compensation Act (hereinafter “the Act.”) 1 In Case No. 579 (September 1997 Term), the Circuit Court for Baltimore County (Cadigan, J.) granted summary judgment in favor of appellee Baltimore County (“County”), ruling that workers’ compensation disability benefits awarded to appellant Mary E. Wills were offset by her length of service retirement benefits, even though her receipt of retirement benefits was unrelated to the injury for which she was awarded workers’ compensation. In Case No. 668 (September 1997 Term), the Circuit Court for Baltimore County (DeWaters, J.) granted summary judgment in favor of appellee Baltimore County, ruling that workers’ compensation benefits awarded to appellant Jerry L. Blevins for a time period before his retirement were offset by disability retirement benefits that he received from Baltimore County after his retirement. As neither case presents a genuine dispute of material fact and the granting of summary judgment in each case was legally correct, we shall affirm the judgments in both cases.

FACTS Wills v. Baltimore County On March 26, 1992, Mary E. Wills, a clerical worker employed by Baltimore County in its Office of Aging, fell off her chair at work and sustained an injury to her back. Wills was hospitalized and subsequently treated by an orthopedist and a physical therapist. At the time of her injury, Wills was 70 years old and had been employed by the County for 30 years. ²⁸⁶ She was earning $492.08 per week. Wills’s back injury prevented her from returning to her job.

Wills filed a claim for benefits with the Workers’ Compensation Commission (“commission”) and on August 31, 1992, the commission awarded her temporary total disability benefits of $300.00 per week. The County paid Wills her full salary in lieu of that award. Approximately six months later, on February 8, 1993, Wills retired. Effective February 11, 1993, Wills began receiving a service-related retirement benefit of $300.23 per week from Baltimore County.

On March 4, 1994, the commission held a hearing in Wills’s case on issues of accidental injury, causation, and pre-existing disability. Wills testified that she was receiving a retirement benefit from the County. The County did not then seek to offset the retirement benefits against the workers’ compensation award, under L.E. § 9-610(a). The commission passed an order on March 17,1994 attributing 75% of Wills’s injury to her accident and the remaining 25% to a pre-existing condition.

It further directed the County to pay Wills permanent total disability benefits of $329.00 per week, beginning as of January 1, 1993, for 500 weeks, not to exceed the sum of $164,500.00 allowable under “other cases,” with continuing benefits to be assumed by the Subsequent Injury Fund (“the Fund”). Baltimore County and the Fund filed a petition for judicial review of the commission’s decision in the Circuit Court for Baltimore County. They did not raise the issue of an offset under L.E. § 9-610(a). On November 9, 1995, the circuit court affirmed the commission’s award.

In January, 1996, the County filed issues with the commission, requesting that it offset Wills’s workers’ compensation benefits by the amount of her retirement benefits. The commission held a hearing on the County’s request on May 20, 1996. On June 7,1996, it issued an order denying the request. The County and the Fund filed a petition for judicial review in the Circuit Court for Baltimore County.

Motions for summary judgment were filed by all parties. The court held a ²⁸⁷ hearing and, on April 1, 1997, it granted the motions for summary judgment of the County and the Fund, reversing the commission’s decision and granting the County’s request for an offset. Wills noted this appeal, presenting the following questions for review, which we have rephrased: I. Was the commission’s June 7, 1996 decision appeal-able?

II

Did the trial court err in reversing the commission’s ruling that the County was barred from seeking an offset under L.E. § 9-601 because an offset must be sought at the time of the initial award?

III

Did the trial court err in ruling that, given the elimination of the word “similar” from the governmental employee offset provision of the Act, benefits that are not “similar” are now offset against workers’ compensation benefits under L.E. § 9-610(a)? Blevins v. Baltimore County Jerry L. Blevins worked full-time for the Baltimore County Police Department for 28 years. In 1994, he was a Deputy Police Chief, earning a yearly salary of $77,000.00. On January 21, 1994, Blevins was going about his police duties when he slipped and fell on a patch of ice in the parking lot of the Baltimore County Police Headquarters.

Blevins sustained injuries to his neck, back, and shoulder. He was treated by an orthopedist, a physical therapist, and a pain management specialist. Blevins did not miss any time from work on account of his accident. Nevertheless, he filed for accidental disability retirement benefits with the Employees’ Retirement System of Baltimore County.

His application was approved and, on November 16,1995, Blevins retired. From that time forward, Blevins has received disability retirement benefits of $1,038.25 per week ($53,989.00 per year). After he retired, Blevins filed a petition for permanent partial disability benefits before the Workers’ Compensation ²⁸⁸ Commission. On February 9, 1996, the commission held a hearing on Blevins’s claim and, on February 23, 1996, it awarded Blevins permanent partial disability benefits under the “other cases” category, for a 20% loss of industrial use of his body.

The award directed that Blevins be paid benefits of $170.00 per week for the period from January 22, 1994 (the day after his accident) until November 16, 1995 (his retirement date). It specified that any permanent partial disability payments attributable to a period after Blevins’s retirement were offset by his pension benefits. On March 4, 1996, Baltimore County filed a petition for judicial review of the commission’s decision in the Circuit Court for Baltimore County. It then filed a motion for summary judgment, which Blevins opposed.

The circuit court held a hearing and on March 5,1997, it granted the motion for summary judgment, reversing the commission’s award. Blevins noted this appeal, presenting two questions for review, which we have combined and reworded as follows: I. Did the lower court err in reversing the commission’s ruling that L.E. § 9-610(a) did not entitle Baltimore County to offset his retirement disability benefits against workers’ compensation benefits awarded for a period before his retirement? DISCUSSION I Standard of Review Our task in reviewing a trial court’s granting of a summary judgment is two-pronged. First, we determine whether there was a dispute of material fact that rendered summary judgment improper.

Then, if there is no such dispute, we must determine whether the trial court’s ruling that the prevailing party was entitled to judgment as a matter of law was legally correct. Lynx, Inc. v. Ordnance Prods., Inc., 273 Md. 1, 8 , 327 A.2d 502 (1974); McKinney Drilling Co. v. Mach I Ltd. Partnership, 32 Md.App. 205, 209 , 359 A.2d 100 (1976). In ²⁸⁹ these cases, we need only perform the second prong of our task, as the parties agree that there are no disputes of material fact. In addition, in reviewing the ruling of the Workers’ Compensation Commission: [w]e, as was the circuit court, are to be guided by the general statutory command that “the decision[s] of the Commission [are] entitled to prima facie correctness.” A court, therefore, may reverse a commission ruling only upon a finding that its action was based upon an erroneous construction of the law or facts ...

Frank v. Baltimore County, 284 Md. 655, 658 , 399 A.2d 250 (1979)(quoting Md. Bureau of Mines v. Powers, 258 Md. 379, 382 , 265 A.2d 860 (1970)). II The Governmental Employee Offset Provision of the Act By Chapter 8, § 2 of the Acts of 1991, section 33(d) of Article 101 of the Maryland Code, which set forth the “governmental employee offset” provision of the Act, was recodified at § 9-610(a) of the Labor and Employment Article. Former Art. 101, § 33(d) provided, in pertinent part: 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 [public] employers ... the benefit or benefits when furnished by the employer shall satisfy and discharge pro tanto or in full ..., the liability or obligation of the 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 ... ²⁹⁰ Md.Code (1957, 1985 Repl.Vol., 1990 Cum.Supp.), Art. 101, § 33.

L.E. § 9-610(a), entitled “Offset against other benefits,” now reads, in relevant part: (a) Covered employee of governmental unit or quasi-public corporation.— (1) If 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 ... 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 benefits under this title. (2) If a benefit paid under paragraph (1) of this subsection is less than the benefits provided under this title, the employer, the Subsequent Injury Fund, or both shall provide an additional benefit that equals the difference between the benefit paid under paragraph (1) of this subsection and the benefits provided under this title. In the cases sub judice, it is undisputed that L.E. § 9-610(a) was in effect at the time of the workers’ injuries, see Baltimore County v. Fleming, 113 Md.App. 254, 255-56 , 686 A.2d 1161 (1996), and that when they were injured, Wills and Blevins were covered employees of a governmental unit, within. the meaning of L.E. § 9-610(a). To resolve the issues presented in each case, we must interpret the meaning of the governmental employee offset provision in its present form.

In doing so, we are guided by well-established principles of statutory construction. > “The cardinal rule of statutory construction is to ascertain and carry out the intent of the legislature.” Montgomery County v. Buckman, 333 Md. 516, 523 , 636 A.2d 448 (1994); Stapleford v. Hyatt, 330 Md. 388, 400 , 624 A.2d 526 (1993); Taxiera v. Malkus, 320 Md. 471, 480 , 578 A.2d 761 (1990); Jones v. State, 311 Md. 398, 405 , 535 A.2d 471 (1988). In determining legislative intent of a statute, “ ‘[t]he primary source ... is, of course, the language of the statute itself.’ ” ²⁹¹ State v. Pagano, 341 Md. 129, 133 , 669 A.2d 1339 (1996)(quoting Tucker v. Fireman’s Fund Ins. Co., 308 Md. 69, 73 , 517 A.2d 730 (1986)). If [the language of a statute] is clear and unambiguous, then we need look no further.

In such a case, a plainly worded statute must be construed without forced or subtle interpretations designed to extend or limit the scope of its operation. Doing so merely provides the clearest indication of the legislative intent and is thus the primary source for all statutory construction. Harris v. City of Baltimore, 306 Md. 669, 673 , 511 A.2d 52 (1986) (citations omitted). The language of a statute is to be given its natural and ordinary meaning.

Buckman, 333 Md. at 523 , 636 A.2d 448 ; Harford County v. University of Md. Medical Sys. Corp., 318 Md. 525, 529 , 569 A.2d 649 (1990). Although in some circumstances we need only look at the “statutory language to determine the legislative purpose,” we “may always consider evidence of legislative intent beyond the plain language of the statute.” Pagano, 341 Md. at 133 , 669 A.2d 1339 . In construing a statute, the Court “seek[s] to avoid results which are ‘illogical,’ ‘unreasonable,’ or ‘inconsistent with common sense.’ ” Romm v. Flax, 340 Md. 690, 693 , 668 A.2d 1 (1995)(quoting Tucker, 308 Md. at 75 , 517 A.2d 730 ).

Ill Wills: Preliminary Issues (i) Appealability Wills argues that the commission’s June 7, 1996 order denying the County’s request for an offset under L.E. § 9-610(a) constituted a refusal by the commission to reopen a claim under L.E. § 9-736(c), which is not an appealable order, except in limited circumstances that do not apply here. The County counters that the commission did not refuse to reopen the claim. Rather, it exercised its continuing jurisdiction and ²⁹² issued a substantive ruling on the issue presented, rejecting the offset request. As such, the commission’s order was appealable.

We agree with the County. 2 L.E. § 9-610(c)(2) provides that “[a] claim that comes under this section is subject to the continuing powers and jurisdiction of the commission.” Those powers are enumerated in L.E. § 9-736, entitled “Readjustment; continuing powers and jurisdiction; modification,” which provides, in relevant part: (b) Continuing powers and jurisdiction; modification.— (1) The Commission has continuing powers and jurisdiction over each claim under this title. (2) Subject to paragraph (3) of this subsection, the Commission may modify any finding or order as the Commission considers justified. (3) Except as provided in subsection (c) of this section, the Commission may not modify an award unless the modification is applied for within 5 years after the last compensation payment. Wills asserts that the holding of the Court of Appeals in Robin Express, Inc. v. Cuccaro, 247 Md. 262 , 230 A.2d 671 (1967), and the holding of this Court in Roadway Express, Inc. v. Gray, 40 Md.App. 66 , 389 A.2d 407 (1978), support her contention that the June 7, 1996 commission order was not appealable.

In Robin Express, the commission issued an award of benefits to an injured employee after the employer did not respond to the claim or participate in the hearing. Thereafter, the employer filed a motion for rehearing, asking the commission to reopen the claim so it could present evidence demonstrating that it was not the injured workers’ employer. The commission denied the motion and the employer sought judicial review in the circuit court. The circuit court dismissed the employer’s claim, ruling that the right to ²⁹³ appeal from the commission’s refusal to grant a rehearing is limited to situations involving aggravation, termination, or diminution of injury, under § 40(b) of former Article 101.

The Court of Appeals affirmed. See also Gold Dust Corp. v. Zabawa, 159 Md. 664, 666-69 , 152 A. 500 (1930). Like the employer in Robin Express, the employer in Roadway Express, supra, failed to take action to respond to an injured worker’s claim. The commission passed an order awarding temporary total disability benefits, which was forwarded to the employer.

The employer did not take steps to obtain judicial review. Instead, it filed a motion to rescind or modify the commission’s order, asserting that the worker had failed to report the accident as required, had failed to file the claim report and medical records, and that there was not sufficient evidence before the commission on which to base its award. The commission affirmed its original award and the employer then petitioned for judicial review. The circuit court in Roadway Express dismissed the petition for lack of jurisdiction.

We affirmed, holding that the employer’s effort to obtain judicial review of the commission’s denial of its motion to rescind or modify was a collateral attack on the award, taken after the time to obtain judicial review had expired: “To permit the [employer] to raise these issues in a collateral proceeding would defeat the purpose of requiring appeals to be filed within a mandatory period.” Id. at 72, 389 A.2d 407 . These cases do not support Wills’s argument that the circuit court lacked jurisdiction to review the commission’s June 7, 1996 order. In the case sub judice, the County contested Wills’s claim and participated fully in the hearing on the claim and the appeal from the commission’s award of benefits that followed. Subsequently, the County invoked the continuing jurisdiction of the commission over claims for offsets referenced in L.E. § 9-610(c)(2) and filed issues requesting an offset for the first time.

The record of the commission hearing reveals that the commissioner gave substantive consideration to the County’s offset request. The commissioner ²⁹⁴ did not refuse to reopen the claim or to exercise the commission’s continuing powers and jurisdiction under L.E. § 9-610(c)(2). To the contrary, the commissioner remarked that he understood that the issues were filed by the County pursuant to that statutory provision. The commissioner entertained the County’s request for an offset but denied it on the ground that L.E. § 9-610(a)(3) bars entitlement to an offset after the “initial award.” In Robin Express, the Court compared an appeal from the commission’s refusal to reopen a claim to consider an issue, which is not permitted, to an appeal from a decision made by the commission once it has reopened the claim for purposes of deciding the issue, which is permitted.

Observing that a decision refusing to reopen a claim is “only a decision not to interfere with a previous decision settling the merits of the claim” which, if appealable, would lead to interminable litigation, Robin Express, 247 Md. at 264 , 230 A.2d 671 (quoting Gold Dust, 159 Md. at 666 , 152 A. 500 ), the Court remarked: If a court or administrative body reopens a case its second decision, be it the same or different from its previous decision, is a new holding; if it refuses to reopen, it decides only not to interfere with its previous decision which stands unimpeached as of its original date. Id. at 265, 230 A.2d 671 . Here, the commission exercised its continuing jurisdiction, considered the County’s request for an offset, and ruled that the County was barred from obtaining an offset. It did not refuse to consider the offset issue or simply decide not to interfere with its original award settling the merits of the claim.

As such, the commission’s order was an appealable “new holding.” (ii) Timing of Offset Request Wills next argues that the language of L.E. § 9-610(a)(3) requiring computation of an “additional benefit ... at the time of the initial award” barred the County from filing issues with ²⁹⁵ the commission requesting an offset under L.E. § 9-610(a), after the commission had issued its March 17, 1994 award. The commissioner agreed with Wills on this point, interpreting L.E. § 9-610(a)(3) to mandate that any governmental employee offset be assessed at the time of the initial workers’ compensation award and precluding a governmental employer from obtaining an offset any time thereafter. The circuit court took a contrary view, construing L.E. § 9-610(a)(3) so as not to bar the County’s request for an offset. We agree with the circuit court’s statutory interpretation.

L.E. § 9-610(a)(3) pertains to the “additional benefit” referenced in L.E. § 9-610(a)(2) and must be analyzed in light of that related subsection. If the workers’ compensation benefits awarded to a governmental employee exceed the retirement, pension, or other “benefit” that the governmental employer is seeking to apply as an offset, L.E. § 9-610(a)(2) applies and provides that “an additional benefit that equals the difference between” the two benefits shall be paid to the employee by the employer or the Fund or both. Under L.E. § 9-610(c)(l)(ii), the commission is empowered to “make an award against the employer or the [Fund] or both to provide [the] additional benefit ...” L.E. § 9-610(a)(3) specifies: The computation of an additional benefit payable under paragraph (2) of this section shall be done at the time of the initial award and may not include any cost of living adjustment after the initial award. The language recited above is part of a statutory scheme and, as such, should not be construed in isolation.

Fraternal Order of Police, Montgomery County Lodge No. 35 v. Mehrling, 343 Md. 155, 180 , 680 A.2d 1052 (1996). Subsection (a)(1) establishes generally the right to an offset. That subsection does not contain a time limitation for seeking an offset or any reference to time at all. Subsection (a)(3), which Wills argues bars offset requests made after the “initial award,” does not apply to all requests for offsets or to the general right to request an offset.

To the contrary, it is a narrowly drawn provision applicable only to those cases in ²⁹⁶ which there is less than a complete offset. Its subject matter is the computation of the additional benefit. Read in context, it prescribes the method for computing an “additional benefit” to which a governmental employee may be entitled by targeting the time-frame relevant to the computation. An interpretation of the time reference in subsection (a)(3) to create a general hmitations period applicable to all offset claims when that subsection is only triggered in the subset of offset claims that involve computation of an additional benefit ignores the limited function of that provision in the statutory scheme.

In the absence of a judicially crafted exception, such an interpretation would prevent a governmental employer from seeking an offset after an initial award of workers’ compensation benefits even when the other benefit had not been in existence at the time of the initial award. Likewise, it would prejudice the rights of the Fund in those cases in which it is impleaded after the initial award. Indeed, it would render the clause in subsection (a)(3) prohibiting inclusion of cost of living adjustments in the calculation of an “additional benefit” meaningless in all but those cases in which the other benefit post-dated the award (and in which the offset request would be barred in any event.). L.E. § 9-638 provides, inter alia, that workers’ compensation paid as permanent total disability “is subject to an annual cost of living adjustment.” If an offset request cannot be sought after the initial award, the “additional benefit” will be calculated before cost of living adjustments come into play anyway, making the prohibition in (a)(3) purposeless.

We will not read any part of a statute to be superfluous. Polomski v. Mayor & City Council of Baltimore, 344 Md. 70, 83 , 684 A.2d 1338 (1996); Schlossberg v. Citizens Bank of Maryland, 341 Md. 650, 660 , 672 A.2d 625 (1996). Finally, we note that the continuing powers clause of L.E. § 9-736(b) provides at subsection (3) that an application for modification of an award by the commission must be made “within 5 years after the last compensation payment” and that, under L.E. § 9-610(c), that express time limitation applies to a “claim” for an offset. Wills’s interpretation of subsection ²⁹⁷ (a)(3) of the offset statute would make that statute internally inconsistent with respect to the time for asserting an offset claim.

Ill Wills: Status of Newman v. Subsequent Injury Fund in light of 1991 Recodification of Workers’ Compensation Act In Newman v. Subsequent Injury Fund, 311 Md. 721 , 537 A.2d 274 (1988), the Court of Appeals held that a workers’ compensation award to a governmental employee could not be offset by the employee’s length of service retirement benefits. In that case, an employee of Prince George’s County was awarded workers’ compensation benefits for a work-related injury. She returned to work and, several months later, elected to take retirement, for which her age and years of service made her eligible. Prince George’s County sought to offset her retirement benefit against her workers’ compensation award, under former Art. 101, § 33(d). 3 The Court of Appeals held that Prince George’s County was not entitled to an offset.

It reasoned that the use of the phrase “similar benefit” in former Art. 101, § 33(d) limited application of the governmental employee offset to benefits that are similar or comparable to workers’ compensation benefits and that a retirement benefit based on age and length of service is not such a benefit. The Court explained: Newman was awarded workers’ compensation because of the impairment of the industrial use of her body as a result of her work-related injury. On the other hand, it appears that she was entitled to the benefits under the retirement plan merely because she had elected to retire after attaining a prescribed age and 20 years service with the county. The ²⁹⁸ payment of these benefits had no relation whatsoever to her injury and the disability resulting therefrom.

Age and length of service were not a prerequisite for her entitlement to [workers’] compensation benefits; anatomical disability was not a prerequisite for her entitlement to the retirement benefits____ The two benefits were not similar and not comparable. Therefore, the offset provisions of § 38[ (d) ] were not applicable. 311 Md. at 724, 537 A.2d 274 . See also Oros v. City of Baltimore, 56 Md.App. 685 , 468 A.2d 693 (1983), aff'd on other grounds, 301 Md. 460 , 483 A.2d 748 (1984). The Court in Newman distinguished the cases permitting offsets by retirement benefits on the ground that they involved disability retirement benefits that were conferred because the worker had sustained an injury and not because of the worker’s age and length of service.

See Frank v. Baltimore County, supra (disability pension benefits); Feissner v. Prince George’s County, 282 Md. 413 , 384 A.2d 742 (1978)(disability retirement pay); Mazor v. State, Department of Correction, 279 Md. 355 , 369 A.2d 82 (1977)(accidental disability pensions). In Polomski v. Mayor & City Council of Baltimore, supra, the Court succinctly summarized the interpretation of former Art. 101, § 33(d) announced in Newman : “[S]imilar benefits for the same injury trigger the offset provision ... Dissimilar benefits, therefore, render the offset provision inapplicable.” Id. at 81, 684 A.2d 1338 . The “similar benefit” phrase on which the holding in Newman rests appeared once in former Art. 101, § 33(d).

It was not contained in the sentence of § 33(d) establishing the offset generally. Rather, it was included in a later sentence in the subsection pertaining to calculation of additional benefits (the statutory predecessor to L.E. § 9-610(a)(3)). The word “similar” was not included in the governmental employee offset provision as first enacted in Md.Code (1939), Art. 101, § 46. That offset provision stated simply that municipal employees were excluded from workers’ compensa ²⁹⁹ tion coverage if the municipality made “equal or better” provision for its employees.

The word “similar” was first introduced into the governmental employee offset statute when five sections of former Art. 101 were repealed and reenacted by Chapter 741, 1970 Laws of Maryland. No history accompanies that legislation. One year later, the Legislature again repealed and re-enacted Art. 101, § 33. 1971 Md. Laws 785 . The 1971 legislation contains a purpose clause explaining that the offset provision was meant to: provide that whenever benefits are furnished by an employer, as defined, equal to or better than the benefits provided under Article 101 of the Ann.Code of Md., such defined employer shall be released of any obligation thereunder, but should such benefits be less than those required by the said Article 101, such defined employer shall make up the difference.

Id. The purpose clause does not mention the “similar benefit” phrase or explain its purpose. When former Art. 101, § 33(d) was recodified at L.E. § 9-610(a)(l)-(2) in 1991, the word “similar” was not included in the statute as revised. Neither House Bill 1 (1991) nor the Report on that bill mentions the “similar benefit” language of former Art. 101, § 33(d) or its absence from the revised statutory language.

In the case sub judice, the County argued and the circuit court agreed that the elimination of the “similar benefit” phrase from the offset statute in 1991 materially changed the law so that benefits paid to a governmental employee that are not injury or disability related, i.e., are not “similar” to workers’ compensation benefits, now are offset against workers’ compensation benefits awarded to the employee. That interpretation of L.E. § 9-610(a) entitles the County to offset the service-related retirement benefit that it pays Wills against the workers’ compensation benefits that the commission has directed it to pay her, even though the two benefits are not similar. Wills challenges that statutory interpretation, contending that the omission of the word “similar” from L.E. § 9-610(a) ³⁰⁰ did not effect a change in the law because it was “only for the purpose of clarity and brevity.” In support, she cites the Revisor’s Note to L.E. § 9-610, which, states that the section “is new language derived without substantive change” from certain portions of former Art. 101, § 33,