Burr v. Maryland State Retirement & Pension System , 217 Md. App. 196 ( 2014 )

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 761
September Term, 2013
_________________________
LAURIE BURR
v.
MARYLAND STATE RETIREMENT AND
PENSION SYSTEM OF MARYLAND
_________________________
Berger,
Nazarian,
Reed,
JJ.
_________________________
Opinion by Nazarian, J.
_________________________
Filed: May 1, 2014
Laurie Burr, a former employee of Maryland’s Administrative Office of the
Courts, endured a difficult struggle with cancer while continuing to work, mostly from
home. On August 27, 2007, she went to the office to meet with her supervisor; her health
had improved, although not yet to the point where she had returned fully to work, and she
understood the purpose of the meeting was to discuss her schedule and leave and assign-
ments. Instead, she alleged (and, for purposes of this appeal, the Trustees of the Maryland
State Retirement and Pension System (the “Trustees” of the “System”) don’t dispute),
that her supervisor reduced the hours on her timesheet for work she had done, retroactive-
ly revoked her telework agreement, removed her from an important project she had led,
reassigned her to “busywork,” and demanded that she return to work in person before her
doctors cleared her. She contended that these unexpected and obviously negative person-
nel decisions precipitated a sudden decline in her mental health and caused her to become
suicidal. She has never returned to work, and everyone agrees that she is permanently
disabled.
The question for us is whether she was disabled by an “accident.” When she ap-
plied to the System for disability retirement benefits, Ms. Burr argued that the events of
the August 27, 2007 meeting were so surprising to her that they qualified as an “acci-
dent,” and thus that she was entitled to an accidental disability retirement allowance
under Md. Code (1993, 2009 Repl. Vol.), § 29-109(b) of the State Personnel and Pen-
sions Article (“SP”). The Trustees disagreed and approved an “ordinary” disability
retirement. An Administrative Law Judge (“ALJ”) and the Circuit Court for Anne Arun-
del County upheld the Trustees’ decision, and Ms. Burr appeals. We hold that personnel
decisions, even decisions that are surprising, cannot, as a matter of law, qualify as disa-
bling “accidents,” and we affirm the Trustees’ decision to deny Ms. Burr’s application for
accidental disability benefits.
I. BACKGROUND
Ms. Burr was hired as a Technical Business Analyst for the Maryland State Judici-
ary’s Administrative Office of the Courts (“the AOC”) in 2001. By all accounts, she was
a good and competent employee, and she appears to have had a substantial role in the
Judiciary’s evolution toward electronic filing. The record reveals that she received strong
performance reviews, and there is no issue in this case about her job performance, her
eligibility to retire, or that she is permanently disabled. The only issue before us is the
nature of her disability retirement, and specifically whether the events that caused her
disability qualify her for an accidental disability retirement allowance which, if awarded,
would yield a higher allowance than the ordinary retirement benefits that the Trustees
already awarded her.
In October 2006, Ms. Burr was diagnosed with breast cancer. The AOC allowed
her to work from home over the course of her treatment, and, as the summer of 2007
came to a close, she finished chemotherapy and contemplated easing into a schedule that
would transition her back to working in the office. Her illness consumed all of her accu-
mulated leave, and she drew both on leave available to her under the Family and Medical
Leave Act (“FMLA”) and a Judiciary leave bank. But according to a letter from her
2
supervisor, Charles Moulden, dated August 23, 2007, that she received by certified mail
the next day, Ms. Burr had exhausted all available leave, and the Judiciary’s Human
Resources Office “directed that [Ms. Burr] return to work fulltime, immediately.” This
letter also stated, though, that in light of the “nature and totality of the circumstances,”
Ms. Burr was not actually required to come back full time until September 12, 2007. To
Ms. Burr, the letter was a “surprise,” but “she did not become psychologically damaged”
as a result of reading it.
Ms. Burr had planned already to go to the office the following Monday, August
27, to meet with her supervisors, complete her timesheet, and discuss the logistics of her
return to work in light of “her medical doctors’ requirements for [a] flex plan.” When
she arrived, she had an email waiting from Mr. Moulden saying that he wanted to meet
with her and her other supervisor at 1:30 p.m. “to discuss work assignments and leave.”
No surprise there.
But the meeting itself went differently than the one-line request might suggest or
than Ms. Burr expected. According to Ms. Burr, Mr. Moulden informed her that her
telework agreement would be revoked retroactive to August 15, 2007, a decision that
contradicted the statement in his letter from four days earlier. Ms. Burr discovered that
Mr. Moulden had already completed her timesheet, without seeking her input or consult-
ing her, and credited her with only four hours’ work each day rather than the full eight
hours. Mr. Moulden also removed her from the project she had been leading and directed
her to begin full-time, in-office “busywork” immediately, “without exception,” and told
3
her that she had exhausted all medical leave. Ms. Burr felt certain at that time that she
had not in fact exhausted her leave and that her doctors would not clear her to return to
work under these conditions; in fact, at that point, they had not cleared her to return at all.
In an “Employee’s Report of Injury” (the “Injury Report”) dated May 1, 2008, Ms.
Burr explained that after the meeting, she suffered a “memory blackout,” and the next
thing she remembers is visiting her neighbors that evening. She returned home and
determined that she was going to end her life. Instead, she fell asleep, called in sick the
next morning, and kept a regularly-scheduled appointment with her psychologist, Benna
Sherman, that afternoon. At Dr. Sherman’s urging, Ms. Burr admitted herself to Balti-
more-Washington Medical Center, and later was hospitalized at Sheppard Pratt. She
never returned to her job with the AOC.
On July 2, 2008, Ms. Burr filed a Statement of Disability (the “Statement”), the
document that served as her application for disability retirement benefits. In the State-
ment, she characterized her disability as both “Ordinary” and “Accidental,” and she
referred back to the Injury Report in the section of the Statement that called for a descrip-
tion of the “accident.” On its first review, the State Retirement Agency (the “Agency”)
determined (in a letter sent to Ms. Burr from a counselor in the Disability Unit on July
10, 2008) that Ms. Burr’s claim was “not compensable as an accidental injury as defined
by the Maryland retirement law,” and that her claim for accidental disability retirement
benefits would be denied. On July 23, 2008, the Medical Board to the Agency recom-
mended that she be approved for “ordinary disability due to a psychiatric condition”
4
(emphasis added), but recommended that the Trustees deny her accidental disability
claim, and the Trustees adopted that recommendation on August 19, 2008. On December
11, 2008, Ms. Burr accepted the ordinary disability award, but opted to pursue her acci-
dental disability claim. After reviewing the Medical Board’s recommendation and the
report of an independent psychiatrist who examined Ms. Burr, the Trustees again denied
Ms. Burr’s claim on August 8, 2009.
On December 8, 2009, Ms. Burr’s counsel sought a hearing before a judge, and an
administrative appeal through the Office of Administrative Hearings followed. The
Trustees filed a motion for a “summary decision” 1 on September 12, 2011, arguing that
the events of August 27, 2007, did not constitute an “accident” under SP § 29-109(b)(1).
Ms. Burr opposed the motion on September 22, 2011, and sought a summary decision
that her injury did arise from an accident, i.e., the “sudden and unusual occurrence” that
took place at the meeting. The ALJ held a hearing on October 5, 2011, and issued a
Proposed Decision on November 3, 2011, that concluded that the Agency was entitled to
judgment—even crediting Ms. Burr’s account of the meeting and the interaction between
her and Mr. Moulden, the ALJ decided, the events of the meeting were “general condi-
tions of employment and [did] not fit within any common sense meaning of the term
1
A “summary decision” plays the same procedural role in the disability application and
review context as a motion for summary judgment in a circuit court civil action. As-
sateague Coastkeeper v. Md. Dep’t of the Envt., 200 Md. App. 665, 698-99 (2011).
5
accident.” Ms. Burr filed exceptions to the Proposed Decision and, after a hearing, the
Trustees adopted the ALJ’s decision on June 21, 2012.
Ms. Burr then filed a Petition for Judicial Review in the Circuit Court for Anne
Arundel County. The circuit court held a hearing on February 4, 2013, and affirmed the
Trustees’ decision in a Memorandum Opinion and Order on May 17, 2013. Ms. Burr
filed a timely notice of appeal.
II. DISCUSSION
Ms. Burr synthesizes the ultimate question before us well in her brief: 2 “If this
Court determines that ‘accident,’ as a matter of law, cannot include a meeting between a
supervisor and employee . . . , then the ALJ and Circuit Court [decisions] must be af-
firmed.” We will say it slightly differently, but with the same effect: we affirm the Trus-
tees’ decision because a supervisor’s personnel decisions cannot constitute an “accident”
2
Ms. Burr lays out the issues more specifically in the following questions she presents:
I. Whether disputes of material fact existed and the
State’s summary decision/judgment motion should
have been denied.
II. Whether the word “accident” in Md. Code Ann., [SP]
§ 29-109(b) means “unforeseen and unplanned event
or circumstance” and the ALJ and Circuit Court erro-
neously interpreted the accidental disability pension
statute.
III. Whether the substance of what occurred during the
meeting of August 27, 2007, was unforeseen, un-
planned, and unexpected constituting an “accident”
under the pension statute.
6
for purposes of determining an employee’s right to accidental disability benefits. Our
decision does not turn on whether Ms. Burr was surprised by or foresaw the decisions her
supervisors conveyed to her in the August 27, 2007 meeting—we assume for present
purposes that she was totally ambushed and that her supervisors’ decisions wrongly
interpreted and applied State personnel rules to her situation. Our holding stems instead
from the indisputable fact that a supervisor’s personnel decisions, whatever their charac-
ter and however they were delivered, are a foreseeable part of a person’s employment
with the State, and, therefore, cannot constitute an “accident.” Personnel decisions also
are not unexpected occurrences (in any objectively determinable way), nor are they
physical events or circumstances that can comprise an “accident.”
On appeal, we look through the circuit court’s decision to review that of the
Trustees, although here, as a practical matter, there is no difference between the two. See
Barson v. Md. Bd. of Physicians, 211 Md. App. 602, 612 (2013). We review that decision
de novo to determine whether the Trustees decided correctly that the System was entitled
to judgment as a matter of law. Eng’g Mgmt. Servs., Inc. v. Md. State Highway Admin.,
375 Md. 211, 229 (2003). We construe all facts in favor of Ms. Burr as the non-moving
party, and we “‘independently review the record to determine whether the parties proper-
ly generated a dispute of material fact and, if not, whether the moving party is entitled to
judgment as a matter of law.’” Suder v. Whiteford, Taylor & Preston, LLP, 413 Md. 230,
239 (2010) (quoting Haas v. Lockheed Martin Corp., 396 Md. 469, 479 (2007) (internal
citations and quotation marks omitted)). And we decide legal questions for ourselves,
7
although “a degree of deference should often be accorded the position of the administra-
tive agency. Thus, an administrative agency’s interpretation and application of the statute
which the agency administers should ordinarily be given considerable weight by review-
ing courts.” Bd. of Physician Quality Assur. v. Banks, 354 Md. 59, 69 (1999) (emphasis
added); McCullough v. Wittner, 314 Md. 602, 612 (1989) (“The interpretation of a statute
by those officials charged with administering the statute is . . . entitled to weight.”);
Wallace H. Campbell & Co. v. Md. Comm’n on Human Rels., 202 Md. App. 650, 670
(2011) (“Even though an agency’s interpretation of a statute the agency is charged with
enforcing is entitled to deference, that deference is not limitless.”).
A disabled State employee is entitled to an accidental retirement allowance if she
is disabled by an on-the-job accident:
(b) [T]he Board of Trustees shall grant an accidental disabil-
ity retirement allowance to a member if:
(1) the member is totally and permanently incapacitated for
duty as the natural and proximate result of an accident that
occurred in the actual performance of duty at a definite time
and place without willful negligence by the member; and
(2) the medical board certifies that:
(i) the member is mentally or physically incapacitated
for the further performance of the normal duties of the
member’s position;
(ii) the incapacity is likely to be permanent; and
(iii) the member should be retired.
8
SP § 29-109(b) (emphases added). Because there is no dispute (for purposes of reviewing
the grant of a summary judgment motion, that is) that Ms. Burr was totally and perma-
nently incapacitated as a natural and proximate result of what happened in the meeting of
August 27, 2007, this case rises or falls entirely on whether the personnel decisions
conveyed to her in that meeting qualify as an “accident.”
Ms. Burr argues that the question is one of first impression for Maryland appellate
courts and that the accident here, in light of the dictionary definition of the word, consists
of the “unforeseen and unexpected” decisions that Mr. Moulden conveyed to her in the
August 27 meeting, which caused Ms. Burr serious psychological injury and caused her
to begin having suicidal thoughts. She claims that the ALJ erred by requiring that an
accident involve “physical violence,” and that the circuit court erred when it imposed a
requirement that the employee undergo “some type of strain or exertion.” She argues that
Maryland cases compel us to construe “accident” to include the events of this meeting
because we have previously permitted recovery for psychological harm without accom-
panying physical harm. And finally, she cites cases from outside of Maryland that, she
claims, support her argument. For its part, the Agency argues that the dictionary defini-
tion of “accident” does not include this sort of injury and that none of the cases on which
Ms. Burr relies construes an “accident” in a similar disability retirement context.
We start with the familiar principle that “‘the cardinal rule of statutory interpreta-
tion is to ascertain and effectuate the intention of the legislature.’” Holbrook v. State, 364
Md. 354, 364 (2001) (quoting In re Anthony R., 362 Md. 51, 57 (2000)). We look at the
9
outset to the statute’s plain language, id. at 364, and, if it is unambiguous “when con-
strued according to its ordinary and everyday meaning, then this Court ‘will give effect to
the statute as it is written.’” Motor Vehicle Admin. v. Jones, 380 Md. 164, 175 (2004)
(quoting Pak v. Hoang, 378 Md. 315, 323 (2003)). We look beyond the language of the
statute only if we find an ambiguity, Comptroller of the Treasury v. Clyde’s of Chevy
Chase, Inc., 377 Md. 471, 483 (2003), and because we find no such ambiguity here, we
need not look to further rules of statutory interpretation.
The statute does not define the word “accident,” but dictionaries tie its meaning
consistently to the foreseeability—or, more to the point, the non-foreseeability—of the
event in question:
1
a : an unforeseen and unplanned event or circumstance
b : lack of intention or necessity : CHANCE
2
a : an unfortunate event resulting especially from careless-
ness or ignorance
b : an unexpected and medically important bodily event espe-
cially when injurious
c : an unexpected happening causing loss or injury which is
not due to any fault or misconduct on the part of the person
injured but for which legal relief may be sought.
Merriam-Webster’s Collegiate Dictionary 7 (11th ed. 2011) (underlines added); see also
Bryan A. Garner, Garner’s Dictionary of Legal Usage 12 (3d ed. 2011) (defining an
accident as “an unforeseen event involving an injury or loss that ranges from slight (e.g.,
spilling a drop from a tepid cup of water) to grave (e.g., running a cruise ship into an
10
iceberg)”); Webster’s Third New International Dictionary (2002) (defining an accident as
“an event or condition occurring by chance or arising from unknown or remote causes”);
Black’s Law Dictionary 16 (9th ed. 2009) (defining an accident as “[a]n unintended and
unforeseen injurious occurrence; something that does not occur in the usual course of
events or that could not be reasonably anticipated,” and making the distinction that “[a]
result though unexpected, is not an accident; the means or cause must be accidental”
(emphasis added)). And the dictionary’s synonyms (where the term “accident” is defined
as “a chance event bringing injury, loss or distress”) include “casualty, misadventure,
mischance, and mishap,” with related words including “calamity, catastrophe, disaster,
tragedy[, and] misfortune,” among others. Webster’s Collegiate Thesaurus 8 (1978).
Several threads emerge from these definitions. First, an event’s status as an acci-
dent depends not on the victim’s subjective expectation that it will happen, but its objec-
tive foreseeability. Second, an accident happens unintentionally—maybe, as the dictionar-
ies recognize, as a result of carelessness or negligence, but not as the result of an inten-
tional act. Someone who drives every day to work knows that she might be rear-ended,
but there is no objective reason to expect a fender-bender during a given morning or
evening commute. If another driver hit her intentionally, that collision would not be an
accident; if traffic slowed suddenly and a distracted driver hit her bumper, that collision
11
would be. 3 Similarly, employees should expect meetings at work to involve presenta-
tions or discussions, even awkward or difficult or confrontational ones. But no employee
expects a three-ton beam from an adjacent construction project to crash into the room—
assuming, of course, that nobody intended the beam to break loose, that event is an
accident. See Belcher v. T. Rowe Price Found., 329 Md. 709, 714 (1993).
Finally, the definitions all include some physical event that takes place that precip-
itates harm. And although we agree with Ms. Burr that the event need not necessarily
involve violence, we have not found any cases supporting the proposition that an accident
can be caused by conversation, even an unpleasant one, without some tangible physical
occurrence. Belcher presents the most obvious example. Ms. Belcher suffered only
psychological injury (for which the Court of Appeals held she could recover 4) after a
steel beam fell from a nearby construction project into her office area without hitting her
or causing her any physical injury. Id. at 713. The occurrence of the beam crashing
through the ceiling was the piece of the equation that, as the definitions of “accident” put
it, was “unforeseen and unplanned,” and an “unexpected happening.” 5
3
We offer this example purely for the purpose of illustrating accidents, not to offer views
about the potential tort liability of an intentional or distracted driver.
4
The Court held for the first time that an accident can cause compensable psychological
injuries, at least for purposes of the Workers’ Compensation law, even in the absence of
any physical injury. Belcher, 329 Md. at 745-46.
5
For what it’s worth, the result there could fairly be characterized as violent—a witness
described it “as if a bomb had exploded.” Belcher, 329 Md. at 713.
12
Throughout her brief, Ms. Burr describes the operative event in fairly general
terms, e.g., as “the events of August 27, 2007.” When we dig a little deeper, though, we
see that her surprise came not from the mere fact of the meeting with her supervisor—by
her own reckoning, she expected to meet with him all along—but from the personnel
decisions that he conveyed to her during that meeting. Again, we assume for present
purposes that she was, in fact, surprised by Mr. Moulden’s decision to complete her
timesheet with reduced credits, by his statement that she had exhausted her leave and
needed to return full-time to work immediately, by his retroactive revocation of her
telework agreement, and by his decision to remove her from her important project. We
assume as well that her surprise from these decisions caused her disabling psychological
illness. Even so, these decisions were not accidents. They were (and we track the ele-
ments of the definition we gleaned above) (1) intentional (and fairly run-of-the-mill)
personnel actions by Ms. Burr’s superiors, that (2) include the kinds of decisions (i.e.,
decisions regarding scheduling, telework, and work assignments) that State employees
can objectively expect, and that (3) did not involve any sort of physical and tangible
force. Accordingly, we hold that these events cannot qualify as an “accident” that entitles
her to an accidental disability retirement allowance.
We agree with Ms. Burr that she raises a question of first impression, but we disa-
gree with her analysis of the cases she cites to support her position. Among others, she
misreads language in Harris v. Bd. of Educ., 375 Md. 21 (2003), another Workers’
Compensation case, to argue that we should focus on the character of the resulting injury
13
rather than the activity that caused the injury. See id. at 36 (“[W]hat must be unexpected,
unintended, or unusual is the resulting injury and not the activity out of which the injury
arises.” (Emphasis added.)). In fact, Harris interpreted the phrase “accidental personal
injury” in a different context, one in which the act causing the injury must occur in the
normal course of the plaintiff’s employment. Indeed, Harris overruled cases that required
plaintiffs to prove that the activity begetting their injury was “unusual,” a construction
that limited workers’ recovery in a paradigm that is avowedly remedial and “‘construed
as liberally in favor of injured employees as its provisions will permit in order to effectu-
ate its benevolent purposes,” and in which “[a]ny uncertainty in the law should be re-
solved in favor of the claimant.’” Id. at 57 (quoting Baltimore v. Cassidy, 338 Md. 88, 97
(1995)). The statutory paradigm here requires exactly the opposite: the word “accident”
stands alone in the statute, not as an adjective for “personal injury,” and defines a circum-
stance that distinguishes a disability from an “ordinary” disability retirement. So whereas
Harris reoriented the workers’ compensation cases to include injuries suffered in the
normal course in the compensatory scheme, it actually reinforces the intentional differ-
ence between foreseeable and easily anticipated employer-employee interactions and true
accidents in the context of disability retirements.
We recognized this same structural distinction in Eberle v. Baltimore County, 103
Md. App. 160 (1995), where we construed a local county code provision that barred
accidental retirement benefits when the claimant suffered from a pre-existing medical
condition. We explained that under a two-tiered disability retirement structure, a statute
14
“granting ordinary disability retirement benefits [is] a broad remedial pension statute[,] . .
. [requiring] only a minimal showing of permanent incapacitation for further performance
of duty,” whereas, “accidental disability retirement benefits can be recovered only with
proof that a disability was the ‘natural and proximate result of an accident.’ This standard
is more stringent than that required for ordinary disability benefits, and, as a result, it is
more difficult to qualify for accidental disability retirement benefits.” Id. at 167. We
need not opine here on whether the State version of this law is meant to be more strin-
gent—the analogy that matters lies in the distinction between ordinary disability retire-
ment, for which Ms. Burr indisputably qualified, and disability retirements caused by
accidents.
Ms. Burr also pointed us to a number of out-of-state cases, but none of them
ultimately helps her either. Cabe v. Union Carbide Corp., 644 S.W.2d 397 (Tenn. 1983),
for example, tracks Harris in holding that a heart attack suffered by an employee after an
argument with a co-worker fell, like the back injury in Harris, within the “the outer limits
of recovery for injuries brought on by the job environment,” particularly given the court’s
“duty to liberally construe the worker’s compensation statutes.” Id. at 398. The court
noted the painful irony that the argument came about because the victim, as a supervisor,
was arguing with the other employee in an effort to enforce safety rules. Id. at 399. But
like Harris, the analytical context was structurally different—the court in Cabe was
charged with determining whether the injury occurred in the normal course of employ-
15
ment. By finding Mr. Cabe’s heart attack was compensable as an employment-related
injury, the case broadens the concept of foreseeability rather than narrowing it.
The only out-of-state accidental disability retirement case Ms. Burr cites is also
distinguishable. In Patterson v. Board of Trustees, State Police Retirement System, 942
A.2d 782 (N.J. 2008), the New Jersey Supreme Court defined a “permanently disabling
mental injury” for purposes of the police accidental retirement benefit in much the same
way we have defined an “accident” here:
a permanently disabling mental injury, that is the direct result
of a mental stressor that is identifiable as to time and place,
undesigned and unexpected, external to the member (not the
result of pre-existing disease that is aggravated or accelerated
by the work), that occurred during and as a result of the
member’s duties, and was not the result of the member’s will-
ful negligence, can qualify the member for an accidental dis-
ability retirement benefit.
Id. at 794 (emphasis added). The holding in Patterson really only recognized the possibil-
ity that a police officer could recover if he could demonstrate the existence of a “traumat-
ic event” that the Court clarified would have to result from PTSD, based upon statutes
within the State Police Retirement System. Id. at 791-92. The key difference, which we
decline to import into this very different context without direction from the General
Assembly, was that Patterson contemplated the possibility of a disabling psychological
injury that resulted from “terrifying or horror-inducing event[s],” id. at 795, occurring in
the course of police work, a possibility conceivably foreseeable to them but not foreseea-
ble to non-public safety State employees and that still requires a tangible event very
16
different from a standard supervisor-employee interaction. We find a closer analogy in a
New York statute that observes a two-tiered retirement disability benefits system and in
cases that hold, as we do here, that disagreements in the workplace cannot qualify as
accidental or traumatic events. See, e.g., Kesch v. Hevesi, 813 N.Y.S.2d 275, 276-77
(N.Y. App. Div. 2006) (holding that no “accident” took place when the claimant’s em-
ployer told him he was to be suspended and demoted, as it was not a “sudden, fortuitous
mischance,” but merely an “inherent and anticipated part of employment”); Baird v.
Kelly, 806 N.Y.S.2d 578, 580-81 (N.Y. App. Div. 2006) (similarly holding that harass-
ment by co-workers was purposeful and not an accident).
JUDGMENT OF THE CIRCUIT COURT
FOR ANNE ARUNDEL COUNTY
AFFIRMED. COSTS TO BE PAID BY
APPELLANT.
17