Injured Workers' Insurance Fund v. Subsequent Injury , 222 Md. App. 347 ( 2015 )

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
Nos. 0358 and 1258
September Term, 2014
No. 0358
INJURED WORKERS’ INSURANCE FUND
v.
SUBSEQUENT INJURY FUND, ET AL.
--------------
No. 1258
BALTIMORE COUNTY, MARYLAND
v.
SUBSEQUENT INJURY FUND, ET AL.
Wright,
Berger,
Nazarian,
JJ.
Opinion by Wright, J.
Filed: April 3, 2015
This consolidated appeal arises from decisions of the Workers’ Compensation
Commission (“Commission”) in two separate cases concluding that, pursuant to Md.
Code (1991, 2008 Repl. Vol.), Labor & Employment Article (“LE”), employers must
compensate appellee, the Subsequent Injury Fund (“SIF”), a 6.5% assessment based on
the Commission’s entire award to the employee, not merely the amount payable after any
offsets for retirement benefits. The employer in the first case, appellant, Maryland
Transit Administration (“MTA”),1 filed a petition for judicial review of the
Commission’s decision regarding MTA employee, Salvatore Glorioso’s, claim in the
Circuit Court for Baltimore City on December 26, 2013. Following a hearing on April
21, 2014, the Circuit Court for Baltimore City affirmed the Commission’s decision. The
employer in the second case, appellant, Baltimore County (“County”), filed a petition for
judicial review of the Commission’s decision regarding County firefighter, Gary Shipp’s,
claim in the Circuit Court for Baltimore County on December 18, 2013. Subsequently,
the County and SIF filed cross-motions for summary judgment. Following a hearing on
July 29, 2014, the Circuit Court for Baltimore County granted SIF’s motion and denied
the County’s. Both MTA and the County timely appealed.2
We are asked to determine whether LE requires employers to pay the 6.5%
assessment to SIF based on the full amount of all permanent disability awards regardless
MTA is represented by counsel for its insurer, the Injured Workers’ Insurance
1
Fund (“IWIF”), because IWIF is responsible for paying the assessment to SIF.
2
Neither Glorioso nor Shipp is a party to this consolidated appeal.
of any offset for retirement benefits.3 We answer this question in the affirmative and,
accordingly, affirm the circuit courts’ judgments.
Facts
SIF is a State agency created by the Maryland General Assembly to pay part of a
workers’ compensation claim when an injured employee has a preexisting medical or
physical condition that exacerbates his or her work-related injury. See LE § 9-802.
When an employee who is injured on the job has this type of preexisting condition, the
employer compensates the employee only for any disability directly attributable to the
employment-related incident, and SIF compensates the employee for the additional extent
of the disability attributable to the preexisting condition. Id.; Subsequent Injury Fund v.
Kraus, 301 Md. 111, 115 (1984). In establishing SIF, the General Assembly sought to
encourage employers to hire individuals with preexisting medical or physical conditions.
Subsequent Injury Fund v. Pack, 250 Md. 306, 308 (1968) (“Its purpose was to persuade
the employer to employ the handicapped individual by limiting the liability, which the
employer may otherwise have incurred”).
In its brief, MTA asked: “Should [SIF’s] Assessment be calculated based on the
3
amount of the award prior to or after the offset granted under [LE], § 9-610?”
Meanwhile, the County asked:
(1) Whether the Circuit Court erred, as a matter of law, in its rulings on the
parties’ respective motions for summary judgment.
(2) Whether an employer/insurer, when entitled to a statutory offset of an
award of permanent partial disability issued by the [] Commission, is
obligated to pay an assessment to [SIF] based on the amount of the award
before or after the offset is calculated.
2
SIF’s sole revenue source is a statutory assessment that the Commission imposes
on an employer or its insurer whenever the Commission makes an “award . . . for
permanent disability or death” or approves a settlement. See LE § 9-806(a). The
assessment is “6.5%, payable to [SIF], on: (i) each award against an employer or its
insurer for permanent disability or death, including awards for disfigurement and
mutilation;” or “(ii) . . . each amount payable by an employer or its insurer under a
settlement agreement approved by the Commission[.]” Id.
A. The MTA Award
It is undisputed that in 2010, Glorioso suffered a work-related injury and
subsequently filed a claim with the Commission. After hearing the matter on August 30,
2012, the Commission issued a decision on September 11, 2012, finding that Glorioso
had a permanent partial disability “amounting to 30% industrial loss of use of the body as
a result of an injury to the back.” As a result, the Commission awarded $46,050.00,
which it detailed as follows: “at the rate of $307.00, payable weekly, beginning May 3,
2012, for a period of 150 weeks.” Because Glorioso also received disability retirement
benefits from the MTA, however, the Commission added that pursuant to LE § 9-610,4
4
The pertinent part of that statute states:
(c)(1) The Commission may:
(i) determine whether any benefit provided by the employer is equal to or
greater than any benefit provided for in this title; and
(ii) make an award against the employer or the Subsequent Injury Fund or
both to provide an additional benefit that equals the difference between the
benefit provided by the employer and the benefits required by this title.
3
the compensation was “subject to an offset effective April 1, 2012 in the amount of
$118.27,” thus lowering the award to $28,309.50. In addition, the Commission noted that
the award was “subject to a total assessment of . . . 6.5% . . . on the amount payable
pursuant to [LE] § 9-806[.]”5
On August 9, 2013, SIF filed Issues with the Commission, asserting that that MTA
and its insurer “refuse to pay the 6.5% assessment on the award dated 9/11/12.” SIF
requested a hearing and took “the position . . . that the assessment is due on the amount of
the award regardless of any offset for retirement benefits,” for a total of $2,993.25.
Following a hearing on November 20, 2013, the Commission issued an order on
December 17, 2013, directing MTA to “pay the assessment of 6.5% on the award of 30%
loss of use of the body, as awarded [on] September 11, 2012[.]” The Commission
reasoned that the General Assembly specifically used the term “amount payable” when
imposing the assessment on settlement agreements but not when imposing it on awards
for permanent disability or death.
B. The County Award
It is undisputed that in 2002, Shipp became disabled as a result of hypertension
and coronary artery disease and, thereafter, filed a claim with the Commission. After
hearing the matter on February 9, 2012, the Commission issued a decision on March 5,
LE § 9-610(c)(1).
In closing, the Commission “further ORDERED that from the final weeks of
5
compensation the following fees shall be paid: Todd L. Schuler, Esquire in the amount of
$4,954.16, (after offset)[.]” (Emphasis in original).
4
2012, finding that Shipp had a permanent partial disability “amounting to 50% industrial
loss of use of the body.” As a result, the Commission awarded $174,825.00, which it
detailed as follows: “at the rate of $525.00, payable weekly, beginning May 14, 2012, for
a period of 333 weeks[.]”
On March 7, 2012, upon realizing that the Commission did not account for the
statutory offset resulting from Shipp’s service retirement, the County filed a request for
rehearing. Subsequently, the Commission issued a new order, adding the following
paragraph:
The Commission finds that the claimant is receiving a service retirement
effective year 2002 in the amount of $31,488.54 per year or $605.55 per
week. Pursuant to LE [§] 9-503(e),[6] the employer is entitled to offset as
follows: Average Weekly Wage: $800.00 minus $605.55 = $194.45.
Therefore, the claimant’s permanent partial disability shall be paid at the
weekly rate of $194.45.
6
That section states:
(e)(1) Except as provided in paragraph (2) of this subsection, any paid
firefighter . . . who is eligible for benefits under subsection (a), (b), (c), or
(d) of this section or the dependents of those individuals shall receive the
benefits in addition to any benefits that the individual or the dependents of
the individual are entitled to receive under the retirement system in which
the individual was a participant at the time of the claim.
(2) The benefits received under this title shall be adjusted so that the
weekly total of those benefits and retirement benefits does not exceed the
weekly salary that was paid to the . . . firefighter . . . .
LE § 9-503(e). Because Shipp was a firefighter, the County’s offset was based on LE §
9-503(e) instead of LE § 9-610. As SIF notes, “it does not appear that there is any
functional difference between an offset for retirement benefits under LE § 9-503(e) and
the more common offset under LE § 9-610.”
5
This modification lowered the Commission’s award to $64,751.85. In its order, the
Commission also noted that the award was “subject to a total assessment of . . . 6.5% . . .
on the amount payable pursuant to [LE] § 9-806[.]”
Thereafter, the County made payment to SIF in the amount of $4,208.87, or 6.5%
of the award that resulted after subtracting the statutory offset. SIF requested a hearing,
arguing that it was entitled to the balance of $11,363.63, which was 6.5% of the total
award made by the Commission prior to accounting for the offset. Following a hearing
on October 29, 2013, the Commission issued an order on December 12, 2013, directing
the County to “pay the assessment of 6.5% on the award of 50% loss of use of the body,
as awarded [on] March 29, 2012[.]” As in the MTA’s and Glorioso’s case, the
Commission reasoned that the General Assembly specifically used the term “amount
payable” when imposing the assessment on settlement agreements but not when imposing
it on awards for permanent disability or death.
Standard of Review
An appellate court reviews a grant of summary judgment by the Commission for
“legal correctness.” Wal Mart Stores, Inc. v. Holmes, 416 Md. 346, 358 (2010). Our role
in reviewing an administrative agency adjudicatory decision is “narrow,” however, and
“is limited to determining if there is substantial evidence in the record as a whole to
support the agency’s findings and conclusions, and to determine if the administrative
decision is premised upon an erroneous conclusion of law.” W.M. Schlosser Co. v.
Uninsured Employers’ Fund, 414 Md. 195, 204 (2010) (citation omitted).
6
Generally, “the decision of the Commission is presumed to be prima facie
correct[.]” LE § 9-745(b)(1); see also Cmty. Realty Co., Inc. v. Siskos, 31 Md. App. 99,
105 (1976) (citations omitted); Ackerhalt v. Hanline Bros., Inc., 253 Md. 13, 20 (1969)
(citation omitted); Krell v. Maryland Drydock Co., 184 Md. 428, 435 (1945). Although
this presumption of correctness “does not extend to questions of law,” we nonetheless
“afford the Commission a degree of deference, as appropriate, in its formal
interpretations of the Workers’ Compensation Act.” Montgomery Cnty. v. Deibler, 423
Md. 54, 60 (2011) (citations omitted); see also W.M. Schlosser Co., 414 Md. at 205 (“an
administrative agency’s interpretation and application of the statute which the agency
administers should ordinarily be given considerable weight by reviewing courts”)
(citations omitted); Hart v. Subsequent Injury Fund, 172 Md. App. 159, 166 (2006) (“we
give due deference to the Commission’s own interpretation of the statute it administers”)
(citation omitted).
Discussion
Appellants argue that SIF’s assessment should be calculated using the amount
payable to the claimant after the offset is granted. According to MTA, when LE § 9-806
is read in its entirety, “[t]he most commonsensical and natural reading would be that the
amount awarded is the amount actually [] paid,” which then “forms the basis of the
calculation for the SIF assessment.” Meanwhile, the County argues that the Commission
did not have jurisdiction to determine the calculation of the assessment and, furthermore,
that the Commission’s decision goes against “clear legislative intent.” Based upon these
contentions, appellants ask us to reverse the circuit court’s judgment and remand with
7
instructions to send the case back to the Commission for the purpose of recalculating
SIF’s assessment using the amount payable to the claimant after the offset.
In response, SIF argues that the Commission had jurisdiction to determine the
correct amount of the assessment, and that its decision was correct because “the plain
language of [LE § 9-806(a)] requires that the Commission order a 6.5% assessment on
the full amount of all awards for permanent disability or death.” Alternatively, SIF
asserts that, “even if the statute were ambiguous, this Court should defer to the
Commission’s reasonable interpretation.”
At the outset, we address the County’s assertion that the Commission did not have
jurisdiction to determine the calculation of the assessment pursuant to LE § 9-806
because “the SIF assessment is clearly a tax” and “the Commission’s jurisdiction does
not extend beyond administrative imposition of the same.” As SIF correctly notes, the
County’s argument is “based entirely on a Court of Appeals opinion that the General
Assembly later abrogated by statute.” See Workmen’s Comp. Comm’n v. Prop. & Cas.
Ins. Guar. Corp., 319 Md. 1 (1990), abrogated by 1995 Md. Laws, ch. 293. Indeed, the
Court in Workmen’s Comp. Comm’n held that the assessment under LE § 9-806 was a
“tax[]” for purposes of a statute exempting the Property and Casualty Guaranty Insurance
Corporation from “all taxes levied by this State.” Id. at 4, 6. In 1995, however, the
General Assembly amended LE § 9-806 – specifically subsection (e) – to clarify that
“[t]he assessment imposed under this section is for payment of claims submitted to the
Subsequent Injury Fund and is not a tax intended to benefit the State.” (Emphasis
added). See 1995 Md. Laws, ch. 293 (“AN ACT concerning Subsequent Injury Fund –
8
Assessments Not a Tax FOR the purpose of providing that the assessment payable to the
Subsequent Injury Fund is not a tax; and providing that the Property and Casualty
Insurance Guaranty Corporation is subject to the assessment.”). As such, we agree with
SIF that even if the rationale in Workmen’s Comp. Comm’n could be extended to this
context, it no longer has any force.
Having established that the Commission had jurisdiction over this matter, we turn
to determine whether it was legally correct in reaching its conclusion. The relevant
statute in this case, LE § 9-806, states in pertinent part:
(a)(1) The Commission shall impose an assessment of 6.5%, payable to the
Subsequent Injury Fund, on:
(i) each award against an employer or its insurer for permanent
disability or death, including awards for disfigurement and
mutilation;
(ii) except as provided in paragraph (2) of this subsection, each
amount payable by an employer or its insurer under a settlement
agreement approved by the Commission; and
(iii) each amount payable under item (i) or (ii) of this paragraph by
the Property and Casualty Guaranty Corporation on behalf of an
insolvent insurer.
In interpreting this section, we begin by looking at the statutory language. Philip
Electronics N. Am. v. Wright, 348 Md. 209, 216-17 (1997), superseded by statute on
other grounds as stated in W.R. Grace & Co. v. Swedo, 439 Md. 441 (2014). If its plain
meaning “is clear and unambiguous, and consistent with both the broad purposes of the
legislation, and the specific purpose of the provision being interpreted, our inquiry is at
an end.” Id. at 217 (citations omitted). Only “when the meaning of the plain language is
9
ambiguous or unclear [do] we seek to discern the intent of the legislature from
surrounding circumstances, such as legislative history, prior case law, and the purposes
upon which the statutory framework was based.” Id. (citation omitted).
LE § 9-806(a)(1)(i) directs the Commission to “impose an assessment of 6.5%,
payable to [SIF], on . . . each award against an employer or its insurer for permanent
disability or death[.]” (Emphasis added). When the Commission issues an award for
permanent disability, as it did in these consolidated cases, it determines the percentage
loss of the body that the employee has suffered. Although that percentage is then used to
calculate the dollar amount due to the claimant, the “award” itself is based on the
claimant’s “permanent disability,” which does not change simply because the employer is
entitled to an offset for some other reason.
Stated differently, the Commission awards the claimant a particular sum of money
based on the extent of his or her injury. The final amount payable directly by the insurer
or employer under the award may be reduced because of an offset for retirement benefits,
but the “award . . . for permanent disability” remains the same. Accordingly, regardless
of whether there is an offset for retirement benefits, the claimant is still entitled to receive
the full dollar amount of the award before the offset; however, a portion of the award is
instead paid by the retirement system rather than directly by the employer. As SIF notes
in its brief, “this in no way absolves the employer (or its insurer) from paying the
assessment based on the full award.”
Other provisions of the statute further show that the “award against an employer or
its insurer for permanent disability or death” must include more than just the “amount
10
payable” for purposes of calculating SIF’s assessment. As the Commission noted, in
contrast to LE § 9-806(a)(1)(i), which imposes the assessment on “each award,” LE § 9-
806(a)(1)(ii) imposes the assessment on the “amount payable by an employer or its
insurer under a settlement agreement approved by the Commission[.]” (Emphasis
added). The General Assembly specifically chose not to use the same language when
imposing the assessment on Commission awards. Had the General Assembly intended to
limit SIF’s assessment to the “amount payable” under the award, it could have specified
as such.
Moreover, the Commission’s interpretation is consistent with the purpose of the
assessment statute, which is to provide the “primary sources of monies for [SIF].”7
Cooper v. Wicomico Cnty., Dep’t of Pub. Works, 284 Md. 576, 578 (1979). The
assessment is “essential to [SIF’s] solvency” and its mission to compensate employees
with preexisting medical conditions after work-related accidents. Id. at 583. If we adopt
the appellants’ argument, SIF would lose revenue whenever the employer or insurer is
entitled to an offset for retirement benefits.
7
We emphasize that appellate courts “give due deference to the Commission’s
own interpretation of the statute it administers.” Hart, 172 Md. App. at 166. And, even
“greater weight [is] placed on those agency interpretations that are the product of
adversarial proceedings” or where the agency “engaged in a process of reasoned
elaboration in formulating its interpretation.” Stachowski v. Sysco Food Servs. of Balt.,
Inc., 402 Md. 506, 517 (2007) (citation omitted). Whereas here, the Commission in these
two cases carefully considered the statutory language during an adversarial adjudicatory
proceeding and issued formal, written opinions that detailed the reasons for reaching its
conclusion, we would have deferred to the Commission’s interpretation had we found the
language of LE § 9-806 to be ambiguous.
11
Appellants argue that it would be unfair to impose SIF’s assessment on the full
amount of the award when they are not actually paying the full amount of the award
themselves. The assessment, as interpreted by the Commission, however, does not place
a double burden on the public employer when the amount is based on the total award
because the employer or its insurer pays no more to SIF than it would have paid had the
employee not received any offsetting disability retirement benefits. Thus, the
Legislature’s goal of preventing government employers from having to pay disability
benefits to an employee twice for the same injury would still be satisfied. See Tsottles v.
Mayor & City Council of Baltimore, 55 Md. App. 58, 59 (1983) (“the Maryland
Workmen’s Compensation Act . . . attempts to prevent double payment from the public
treasury to civil servants for an injury arising out of the employment relationship”)
(citations omitted); Nooe v. City of Baltimore, 28 Md. App. 348, 352 (1975) (“the
General Assembly was concerned with, and attempted to prohibit, governmental
authorities being obliged to pay benefits to an employee twice as a result of the same
injury”).
12
Finally, the MTA cites two unrelated statutes, LE §§ 9-804(b)8 & 9-656(b),9 to
support its proposed interpretation.10 Those statutes, however, do not have any direct
8
LE § 9-804(b) states:
Deduction for prior award. – (1) When the Commission makes an award
against the Subsequent Injury Fund, if the prior permanent disability
contributes to the covered employee’s current permanent disability, the
Commission shall deduct from the award the amount of all prior permanent
disability payments received by the covered employee under:
(i) each prior award for permanent disability made by the Commission
or a similar unit in another state; or
(ii) any prior final compromise and settlement agreement approved by
the Commission or a similar unit in another state.
(2) In the case of a permanent total disability under Subtitle 6, Part V of
this title, the deduction shall be made by reducing the weekly rate of
compensation in accordance with § 9-729 of this title until the amount of
the prior permanent disability payments awarded would have been paid if
they had been paid in weekly payments.
9
LE § 9-656(b) states:
Payment of compensation. – The covered employee:
(1) is entitled to compensation for the portion of the disability of the
covered employee that is reasonably attributable solely to the accidental
personal injury or occupational disease; and
(2) is not entitled to compensation for the portion of the disability that is
reasonably attributable to the preexisting disease or infirmity.
10
MTA also notes that, in Glorioso’s case, the amount paid to the attorney was
calculated using the amount after the offset. According to MTA, it follows that “the
Employer and Insurer should not have to pay the SIF Assessment” based on the amount
prior to the offset. This argument is flawed. Had the Commission intended for the
employer to calculate SIF’s assessment after the offset, it would have so specified as it
did when it “further ORDERED that from the final weeks of compensation the following
13
bearing on the meaning of an “award . . . for permanent disability or death” as stated in
LE § 9-806. For example, LE § 9-656(b) does not even use the word “award,” but rather
focuses on SIF’s liability for preexisting diseases or infirmities. And, although LE § 9-
804(b) uses the word “award,” its usage supports to an extent our holding as to LE § 9-
806 by differentiating between an “award” and a “final compromise and settlement
agreement” when it provides that any prior permanent disability payment received by the
covered employee must be deducted. In other words, LE § 9-804(b) creates a further
distinction between those two separate sums of money.
Therefore, having found no error in the Commission’s interpretation of LE § 9-
806, we uphold its ruling in both cases and affirm the circuit courts’ judgments.
JUDGMENTS OF THE CIRCUIT COURT
FOR BALTIMORE CITY AND THE
CIRCUIT COURT FOR BALTIMORE
COUNTY AFFIRMED.
COSTS TO BE DIVIDED EQUALLY
BETWEEN APPELLANTS.
fees shall be paid: Todd L. Schuler, Esquire in the amount of $4,954.16, (after offset)[.]”
(Emphasis in original).
14