Del Marr v. Montgomery County
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Paul Del Marr v. Montgomery County, No. 60, September Term, 2006. WHEN WORKERS COMPENSATION AWARD IS INCREASED, BY REASON OF WORSENING OF CONDITION, FROM FIRST TIER (LESS THAN 75 WEEKS) TO SECOND TIER (BETWEEN 75 AND 249 WEEKS), EMPLOYER/INSURER IS ENTITLED TO CREDIT FOR NUMBER OF WEEKS FOR WHICH COMPENSATION WAS PREVIOUSLY PAID RATHER THAN DOLLAR AMOUNT OF PREVIOUS PAYMENTS. In the Circuit C ourt for M ontgome ry County Case # 252886 IN THE COURT OF APPEALS OF MARYLAND No. 60 September Term, 2006 PAUL DEL MARR v. MONTGOMERY COUNTY, MARYLAND Bell, C.J. Raker *Wilner Cathell Battaglia Greene Bloom, T heodore G. (R etire d, sp ecia lly assigned), JJ. Opinion by Wilner, J. Filed: February 9, 2007 *Wilner, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. When an employee sustains a permanent partial disability as the result of an accidental injury covered under the Maryland Workers Compensation law, the employee is entitled to com pensation th at is determin ed in acco rdance w ith schedule s set forth in Maryland Code, §§ 9-627 through 9-630 of the Labor and Employment Article (LE). The compensation provided for in those schedules is expressed as a number of dollars per week for a fix ed num ber of w eeks. Both the number of dollars per week and the number of weeks over which the compen sation is to be p aid depen d on the na ture and sev erity of the disab ility. For certain kinds of disabilities, involving mostly the loss of digits, limbs, and hearing, the number of week s for w hich co mpen sation is paid is f ixed in th e statute . See LE § 9-627(b) through (j). For other kinds of disabilities those not listed in those subsections the Workers Compensation Commission, using criteria set forth in § 9-627(k), must first determine the percentage by which the industrial use of the employee s body was impaired as a result of the accidental injury. It then must award compensation based on the proportion that the determine d loss bears to 500 w eeks, subjec t to an enha ncemen t for serious d isability under § 9-630, at the weekly rates set forth in §§ 9-628 through 9-630. Sections 9-628 through 9-630 provide for what practitioners in the field refer to as three tiers of c ompens ation. With e xceptions n ot relevant h ere, if comp ensation is awarded for less than 75 weeks, § 9-628(e) sets the amount of weekly compensation as one-third of the employee s average weekly wage up to a maximum of $114. 1 That is the lowest, or first, tier. If compensation is awarded for a period of between 75 and 249 weeks, § 9-629 sets the amount of weekly compensation as two-thirds of the employee s average weekly wage but not more than one-third of the State average weekly wage.2 That is th e midd le, or sec ond, tier . If com pensat ion is aw arded f or 250 week s or mo re, § 9-630 requires the Commission to increase the award by one-third the number of weeks and sets the amount of weekly compensation for that aggregate number of weeks at an amount that equals two-thirds of the employee s avera ge weekly wage but not more than 75% of the State average w eekly wage. That is the third, or highe st, tier. As noted, each of these tiers provides for compensation based on a weekly rate for a set number of weeks and not as a lump sum amount. All of this works quite well and generally without complication if the award is not disturbed. For our purposes here, awards made by the Commission may be disturbed in two ways: (1) when a court, in an action for judicial review of the award, decides that the Commission erred in some manner and remands for the calculation of a new award based on the court s finding, and (2) when, as the result of a worsening, impro vement, or termination of the employee s disability, the Commission reopens the case and enters a new award to reflect the change 1 The employee s average weekly wage is computed in accordance with LE § 9- 602. 2 The State average weekly wage is determined annually by the Department of Labo r, Licen sing, an d Reg ulation. See LE § 9-603. -2- in the employee s condition. LE § 9-736. In each of those situations, the question has arisen of w hether or ho w the new award af fects the co mpensa tion that wa s paid prior to entry of the ne w awa rd in accord ance with the award that was m odified. W e have de alt with that question before, and we are called upon in this case to deal with it again. Our answ er in this c ase w ill be consiste nt with th ose g iven prev ious ly. BACKGROUND In January, 2001, petitioner, Paul Del Marr, a master electrician employed by the Montg omery Cou nty Board of Educatio n, suffered an acciden tal injury to his back while lifting a transformer in the course of his employment. Claiming an inability to continue working as a master electrician, Del Marr filed a claim for temporary total and permanent partial di sability. 3 In May, 2002, the Commission, among other things, found that Del Marr ha d a 20% industrial loss o f use of h is body, half of which (1 0%) w as attributable to the accidental injury and half of w hich (10%) w as due to a pre-existing con dition. In consequ ence of th ose finding s, the Com mission en tered a perm anent partial d isability award requiring the Board and its insurer, Montgomery County, to pay Del Marr $114 per 3 In January, 2002 a year after the accident Del Marr gave up his job as a master elec trician and ac cepted a p osition with the Board teaching ele ctricity at a county high school, at a lower salary. Initially, that involved just teaching in a classroom, but at some p oint, De l Marr w as requ ired to as sist the stu dents in actually w iring a h ome. During this period, Del Marr also worked part time at a side electrical business that he had and earned from that between $100 and $400 per week. -3- week for 50 weeks, comm encing as of M arch 23, 2001, w hich was wh en his temporary total disability ended. That award was a first tier award less than 75 weeks. In August, 2002, Del Marr began complaining of a significant increase in pain and, on the recomm endation of his physicians, und erwent corrective surge ry in November, 2002. On January 9, 2003, pursuant to a stipulation by the parties, the Commission amended its May, 2002 award to find a 24% industrial loss of use of the body, 14% being due to the accidental injury, and to increase the permanent partial disability compensation to $114 per week for 70 weeks, subject to a credit for monies previously paid under the May, 2002 order. The new award, still less than 75 weeks, remained a first tier award, and, because the rate of weekly payment remained the same, no issue arose as to any retroactive effect of the new award. Payment was simply extended for 20 weeks. The last payment under that order w as made on F ebruary 5, 2003, based on Del Marr s return to work on January 27, 2003. At some point, Del Marr filed another petition to reopen the case based on a worsening of h is condition. After a hearing, the C ommission entered a new (third) awa rd on M ay 26, 200 4, fin ding that D el M arr th en had a 3 3% indu strial loss of use of the b ody, 23% being due to the January, 2001 accidental injury. Compensation was set at $223 per week for a period of 115 weeks, commencing at the end of the compensation awarded under the January, 2003 order. That constituted a second tier award more than 75 but less than 250 weeks and would call for an additional gross payment of $25,645 ($223 -4- times 115 w eeks). The new co mpensa tion ordered was sub ject to a credit f or payments made under the May, 2002 and January, 2003 orders. Montgomery County, as the Board s insurer, sought judicial review of the Commission s order in the Circuit Court for Montgomery County. The County did not challenge the increase in the compensable disability to 23%, but rather the calculation of the credit allowed against the n ew award. T he County had alread y paid Del Marr compen sation for 7 0 week s at the rate of $114 pe r week a total of $7 ,980 and it construed the Commission s order as limiting the credit to that dollar amount. In that event, it would owe Del Marr an additional $17,665 ($223 per week times 115 weeks ($25,645 ) less a credit of $7,980). In a motion f or summ ary judgmen t, the Coun ty contende d that it was e ntitled to a cred it based on th e numbe r of wee ks for wh ich it already paid compensation rather than the number of dollars it had paid. It insisted that the award be construed to require the payment of $223 per week for only 45 weeks (115 minus 70), a total of $10,035. The difference amounts to $7,630. The Circuit Cou rt agreed with the Co unty, granted the motion for sum mary judgment, and entered an order remanding the case to the Commission for entry of an order requiring the Board to pay 115 weeks of compensation at the $223 rate subject to a credit for the number of weeks paid under the Order dated May 2, 2002 as Amended under the Order dated January 9, 2003. Del Marr appealed, arguing to the Court of Special Appeals, as he does now before us, that when a claimant reopens a claim for -5- worsening of condition and the award is increased from a first tier injury to a second-tier injury, the credit is to be made on the basis of dollars paid rather than the number of weeks for which compensation was paid. The intermediate appellate court disagreed and affirm ed the ju dgme nt of the Circuit C ourt. See Del M arr v. Mo ntgome ry Coun ty, 169 Md. App . 187, 900 A.2d 2 43 (2006). We shall, in turn, affirm the judgmen t of the Court of Special Appeals. DISCUSSION We first dealt directly with the issue of how credits are to be applied when a new compensation award is entered in Philip Electronics v. Wright, 348 Md. 209, 703 A.2d 150 (199 7). In that c ase, t he C omm issio n found that, as a r esult of a n acc iden tal in jury, the claimant suffered a permanent partial disability loss of 50% of the use of her body and entered an award of compensation of $178 per week for 333 weeks. That constituted a third tier award 250 weeks or more. The Circuit Court, in an action for judicial review of that a ward, f ound th at the cla imant su ffered only a 40 % loss of use of her b ody. Consistent with that finding, the Commission, on remand, entered a new award of $144 per week for 200 weeks. That reduced the award to a second tier award less than 250 weeks. In the new award, the Commission gave Philips a credit for the entire amount paid under the initial award. The claimant, Wright, sought judicial review of that part of the new award, contending that Philips should be entitled to a credit based on weeks of -6- prior payment, rather than the amount of dollars previously paid. The gross amount payable under the new award was $28,800 ($144 per week times 200 we eks). If, as the C ommissio n ordered , Philips wa s entitled to a d ollar credit, it would have no further obligation, as the amount previously paid exceeded that sum. If, on the othe r hand, Ph ilips was en titled to a credit fo r the 147 w eeks for w hich it had p aid compensation under the initial award, rather than the amount actually paid under the award , it woul d still ow e com pensat ion at the $144 r ate for a n additio nal 53 w eeks. Philips complained that, if that were the case, it would owe $10,800 more than the aggregate amount of $28,800 due under the new award. We agre ed with the conclusion of the Co urt of Spe cial Appe als that the cred it should be based on the number of weeks for which compensation had been paid under the initial order and not the dollar amount paid under that order. We regarded the issue as one of statutory construction and thus strictly one of law. After reviewing the same statutes at issue h ere LE §§ 9-627 through 9 -630 w e declared that [t]he pla in language of the Ac t leads us to co nclude tha t the Legislatu re expresse d a comm itment to the payment of permanent partial disability benefits based on a weekly framework, rather than focusing upon the total monetary value of such an award. Id. at 221, 703 A.2d at 155. Tha t framew ork gove rned the ca lculations of credits. Citing e arlier decision s of this Cou rt (pr incip ally St. Paul Fir e & Mar. In s. v. Treadw ell, 263 Md. 430, 283 A.2d 601 (1971) and Stapleford v . Hyatt, 330 Md. 388, 624 A.2d 526 (1993)) and cases from other -7- States, we held that when a claimant s initial award by the Commission is reduced pursuant to a petition for judicial review, an employer shall be entitled to a credit for the number of weeks of benefits actually paid in accordance with the original order, rather than a credit based upon the amount of money previously paid to the worker. Id. at 22526, 703 A.2d a t 158. In Philip Electronics, the weekly credit approach worked out favorably to the claimant because the initial award had been reduced. We noted the employer s argument that, in the converse situation in which an initial award was increased, that approach might prove disadvantageous to the claimant, but we did not need to address that situation in that ca se. See Philip Electronics, supra, 348 M d. at 215 , n.4, 703 A.2d a t 153, n.4 . That issue did come before us four years later in Ametek v. O Connor, 364 Md. 143, 771 A.2d 1072 (2001), and our response was the same as in Philip Electronics. In Ametek, the Commission found that the claimant, O Connor, had a 10% loss of use of he r body and o rdered that c ompens ation for the permane nt partial disab ility be paid at the rate of $81 per week for 50 weeks. That was a first tier award. On judicial review, the Circuit Court found her disability to be a 70% loss of use of the body, and, on remand, the Commission entered a new award ordering compensation at the rate of $134 per week for 467 weeks a third tier award. Following the approach we had taken in Philip Electronics, the Commission concluded that Ametek was entitled to a credit for the 50 weeks of compensation already paid and thus directed the employer to pay the new rate of -8- $134 for only 417 w eeks. In a second action for judicial review, the Circuit C ourt concluded, notwithstanding Philip Electronics, that the claimant should receive the higher amount for the entire period, and it therefore entered a judgment of $2,650, that being the $53 difference between the initial award of $81 per week and the new award of $134 per week fo r the 50 w eeks. The Court of Special A ppeals, dec laring a we ekly credit approach where the benefit is increased to be an affront to the legislative scheme set forth in the Ac t, affirm ed, Ametek, Inc. v. O Connor, 126 Md. App. 109, 122, 727 A.2d 437, 443 (1999), but we reversed. We found Philip Electronics to be contro lling. We itera ted and co nfirmed its holding that the Legislature had expressed a commitment to the payment of permanent partial disability benefits based on a weekly framework, rather than focusing upon the total monetary value of such an award and concluded that what we said in Philip Electronics applies with equal force to the case sub judice. Ametek v. O Connor, supra, 364 Md. at 152, 771 A.2d at 1077, quoting from Philip Electronics, supra, 348 Md. at 121, 703 A.2d at 155. We held, expressly, that the analysis applicable to cases involving the subsequent reduction of a workers compensation award is just as compelling when applied to those cases in which the award has subsequently been increased. Ametek, supra, at 152, 771 A.2d at 1077. We pointed out that predictability and administrative ease were important in establishing the rules governing the award of permanent partial disability benefits and declared: -9- It simply will not do to have different rules, depending upon whether it is the claiman t or the emp loyer to who m the resu lt is inequitable. Whether a credit is the amount the employer has paid o r for the nu mber of w eeks the em ployer has paid should be determine d on som e principled and cons istent basis and not m ade to dep end upo n which of the parties it will benefit. As the petitioner submits, The Act should not be interpreted differently depending on the outcome in different claims. Id. at 159, 771 A.2d at 1081. In this case, Del Marr asks us to do precisely what we declared in Ametek we would not do. He first seeks to distinguish Ametek and Philip Electronics on the bas is that they involved modifications to an award by a court, on judicial review, rather than by the Commission on a reopening due to a worsening condition, and adds that the enactmen t of LE § 9-633 ef fectively overru les those tw o cases in an y event and se rves to resurre ct a 199 1 case f rom the Court o f Spec ial App eals, Norris v. United Cerebral Palsy, 86 Md. App. 508, 587 A.2d 557 (1991), that is inconsistent with Ametek and Philip Electronics. He argue s that, in the limited circumstan ce of a pe rmanent p artial disability award being increased through a reopening procedure from a first tier award to a second tier award namely, his cas e the Co mmission either may or m ust allow a d ollar credit, even if tha t results in a retroa ctive increas e in comp ensation. W e are not im pressed w ith those arguments. It is true that Ametek and Philip Electronics arose from modifications mandated by court ju dgme nts in jud icial revie w actio ns, but th at is a disti nction w ithout a d ifferen ce. -10- If anythin g, there is more re ason to apply a w eekly cred it appro ach in re openin g cases . When a modifica tion is mand ated by judicial d ecision in a ju dicial review action, it is because th e court has f ound the a ward un der review to be in error, a nd, from a n equitable point of view, it is arguable that, because the award was wrong from the beginning, the parties should be placed in the same position they would have been in had the Commission e ntered the proper aw ard in the first instance. In light of the statutory schem e, we f ound th at kind o f argum ent unp ersuasiv e. The statuto ry scheme is ev en less hosp itable to De l Marr s arg ument tha t a different approach should be followed when the award is increased as the result of a reopening . LE § 9-7 36(a), dealin g with read justments an d modific ations, provid es, in relevant part, that [i]f aggravation, diminution, or termination of disability takes place or is discovered after the rate of compensation is set or compensation is terminated, the Com mission , on the a pplicatio n of an y party in inte rest or on its own motion , may . . . readjust for future application the rate of compensation . . . . (Emphasis added). Under Del Marr s approach of allowing a dollar credit rather than a weekly one, the adjustment would necessarily be retroactive rather than just for future application. The employer would be required to pay more compensation than was statutorily allowed for the period prior to the tim e the wor sening of the conditio n was fo und to exis t. The we ekly credit approach is fully consistent with the legislative scheme that the employer pay compensation at the appropriate statutory rate for the disability that exists at the time the -11- comp ensatio n is paid . Del Marr seeks to create a little pigeonhole for himself by looking at LE § 9630(d) an d the additio n of a new § 9-633 in 2001. LE § 9-630, as we obse rved, deals with a serious disability third tier award compensation for 250 weeks or more. It was added to the Workers Compensation Law in 1965 and provides for greatly enlarged benefits. The number of weeks for which benefits are paid, as determined in accordance with the statu tory schedule, is a utomatically incr eased by on e-third, and th e weekly rate is much higher than a second tier benefit. As p art of the 1965 enac tment long befo re either Philip Electronics and Ametek were decided the Legislature included the provision, now appearing as § 9-630(d), that if an employee receives additional compensation on a petition to reopen for serious disability, the additional compensation may not in crease t he am ount of comp ensatio n previ ously aw arded a nd paid . Del Marr notes that neither § 9-628 nor § 9-629 contain such a provision, and, from that absence, he argues that the prohibition against a retroactive increase applies only to modifications that increase the award to a third tier award. He finds succor as well from the enactment of § 9-633 in 2001, which provides, in relevant part, that, [i]f an award of permanent partial disability compensation is reversed or modified by a court on appeal, the payment of any new compensation awarded shall be [] subject to a credit for compensation previously awarded. Del Marr notes that § 9-633 applies only to awards reversed or modified on appeal, and therefore not to modifications made pursuant to a -12- reopening.4 We first no te that neither § 9-630(d) n or § 9-633 state anything in consistent w ith our holdings in Philip Electronics or Ametek. Indeed, they are entirely consistent with the view expressed in those holdings that a modification that serves to increase or decrease compensation, whether occasioned by a judgment emanating from a judicial review action or a reopening, may have prospective effect only, achieved by allowing a credit for compensation previously paid calculated on a weekly basis. There is nothing in the text of those sta tutes requiring a conclusio n that the w eekly credit app roach is imp ermissible in a modification arising from a reopening that increases the compensation from a first tier to a second tier. Absent some clearer expression of legislative intent, we are not willing to balkanize the Workers Compensation Law by creating special pigeonholes with different rules. JUDGMENT O F COURT OF SPECIAL APPEA LS AFFIRMED, WITH COSTS. 4 Although the statutory text continues to refer to a judicial review action as an appe al, the a ction is, in fact, an origina l action in the Circ uit Cou rt for jud icial revie w. See Philip Electronics, supra, 348 Md. at 222, n.6, 703 A.2d at 156, n.6. -13-
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