REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 0481
September Term, 2004
ZBIGNIEW FEDOROWICZ
v.
STATE RETIREMENT AND PENSION SYSTEM
OF MARYLAND
Eyler, James R.,
Kenney,
Adkins,
JJ.
Opinion by Adkins, J.
Filed: September 15, 2005
In this appeal from the denial of accidental disability
retirement benefits, we interpret the following limitations period
established by Md. Code (1993, 2004 Repl. Vol.), section 29104(d)(2) of the State Personnel and Pensions Article (SPP):
The
Board
of
Trustees
[for
the
State
Retirement and Pension System of Maryland] may
not accept an application for accidental
disability filed by a member or former member
more than 5 years after the date of the
claimed accident.
Guided by precedent construing an analogous statute governing
similar claims by Baltimore City employees, we shall hold that the
five year limitations period applies to state employees whose
accidental disability retirement applications were initiated or
submitted by their employer agency.
In addition, we shall hold
that the five year deadline may not be extended based upon when the
disability was discovered.
FACTS AND LEGAL PROCEEDINGS
As a civilian employee of the Maryland State Police (MSP),
appellant Zbignew Fedorowicz was a “member” of the Employee’s
Pension
System
(EPS),
and
therefore
eligible
for
retirement
benefits under the State Retirement and Pension System of Maryland
(SRPS). Fedorowicz, an automotive specialist, suffered a fractured
right shoulder on July 19, 1996, in an accident that occurred while
he was replacing a tire at the MSP Garage Barrack.
Following
surgery on July 26, he returned first to light duty, then to
regular duty, by October 30.
Pain continued in his injured shoulder throughout the time he
was working full-time.
His arm was re-fractured, allegedly “as a
result of the July 1996 accident,” leading to additional surgery in
May 2000. Fedorowicz returned to light duty on September 11, 2000.
He performed eight months of temporary light duty assignments. But
Fedorowicz could no longer raise his right arm above his shoulder
or “push, twist, use force to loosen or tighten bolts, nuts, or
lift heavy objects” with that arm.
He acknowledges that these
tasks are essential to performing the full duties of an automotive
specialist.
The MSP, however, did not have a permanent light duty
position available for Fedorowicz.
In April 2001, MSP Medical Director Dr. Phillip Phillips
summoned Fedorowicz to a meeting.
According to Fedorowicz,1 Dr.
Phillips advised that he “would have no problem” recommending him
for an accidental disability retirement.
To process the claim,
Phillips told Fedorowicz, he would need a functional capabilities
exam, which could be performed by physicians designated by the MSP.
In Fedorowicz’s presence, Phillips instructed MSP’s Disability
Retirement Coordinator, Michelle Miller, “to prepare the necessary
paperwork in conjunction with the request for accidental disability
retirement.”
Fedorowicz “understood this conversation between Dr.
Phillips and Ms. Miller to mean that Ms. Miller’s office would be
responsible for the filing of any disability claim on my behalf.”
1
Fedorowicz’s account of relevant events
affidavit and his Statement of Disability.
2
appears
in
his
On May 21 and June 26, 2001, Fedorowicz underwent two medical
exams to which he had been referred by Dr. Phillips.
were arranged and paid for by the MSP.
The exams
“On approximately July 3,
2001,” Miller telephoned Fedorowicz to tell him “she had not yet
received the results from the doctors.”
She asked Fedorowicz to
call those doctors to “request that their offices forward the
evaluations to the MSP.”
Fedorowicz did so, then informed Miller
that both doctors said that their reports were on their way.
When
Fedorowicz asked what he should do next, Miller told him to “just
wait.”
The exam results indicated that Fedorowicz could not perform
the duties necessary to return to full duty as an automotive
specialist. Fedorowicz was called in October to meet with managers
from the MSP’s human resources and motor vehicle departments.
an
October
17,
2001
“Options”
meeting,
MSP
officials
At
told
Fedorowicz that he could no longer remain on light duty status.
Fedorowicz was given three alternatives: (1) resign, (2) work for
another six months while he applied for disability retirement, or
(3) be terminated.
Fedorowicz chose the second option.
Fedorowicz executed his Statement of Disability on October 15,
2001.
At the bottom of page one, the forms necessary to complete
an accidental disability retirement are listed, preceded by the
following notice:
IMPORTANT:
The
Retirement
Agency’s
counselors and your Agency’s
3
retirement coordinators will
help you to
complete and
forward the following forms,
but, ultimately, it is your
responsibility to insure that
all of the following forms are
completed and submitted with
this form.
Fedorowicz returned the form to Miller, who signed it and
dated it
October
22,
2001.
The
Board
received
Fedorowicz’s
application on October 29, 2001, five years and three months after
the accident in which he was injured. Fedorowicz continued to work
until July 2002.
By letter dated February 6, 2002, the Board of Trustees of the
State Retirement and Pension System (SRPS and the Board), appellee,
advised Fedorowicz that it could not consider him for accidental
disability benefits because his application was filed after the
five
year
deadline
Instead, the
disability
Board
established
considered
retirement.
in
the
SPP
claim
Fedorowicz
was
section
as
one
29-104(d)(2).
for
ultimately
ordinary
granted
an
ordinary disability retirement, which does not require a showing
that the disability was caused by a work-related accident, but it
provides lower benefits.
Fedorowicz obtained an administrative review of the Board’s
refusal to consider his application.
The ALJ granted summary
decision on the basis of the five year limitations period in SPP
section 29-104(d)(2).
affirmed.
The Circuit Court for Montgomery County
Fedorowicz noted this timely appeal, raising several
4
issues that we rephrase as two:
I.
Is the five year limitations period in
SPP section 29-104(d)(2) inapplicable
when the accidental disability retirement
claim is initiated and/or submitted by
the employer agency rather than by the
employee?
II.
Is the five year limitations period in
SPP section 29-104(d)(2) tolled until the
employee discovers his disability?
We answer “no” to both questions and affirm the judgment.
DISCUSSION
Review Of The Board’s Decision
We
must
Fedorowicz’s
review
the
accidental
Board’s
disability
decision
not
retirement
determine if it is premised upon an error of law.
Kahl, 366 Md. 158, 171 (2001).
to
consider
application
to
See Marzullo v.
Here, the dispositive issue is
whether the Board properly interpreted and applied SPP section 29104(d)(2).
We give significant weight and deference to the Board’s
interpretation of statutes that it regularly applies.
See Md.
Transp. Auth. v. King, 369 Md. 274, 288 (2002).
We also presume
that the Board’s decision is prima facie correct.
See Marsheck v.
Bd. of Trustees of the Fire & Police Employees’ Retirement Sys. of
Baltimore City, 358 Md. 393, 402 (2000).
In construing a statute, we seek to determine and implement
the General Assembly’s intent.
See id.
5
We begin with the
statutory language, reading it in light of the entire statutory
scheme.
See id. at 403.
If the meaning of the words “is plain and
definite, our inquiry as to the legislature’s intent will end[.]”
Id. (citation omitted).
Accidental Disability Retirement
Title 29 of the State Personnel and Pensions Article governs
disability benefits for members of the Employees’ Retirement System
covering state employees like Fedorowicz. The Board must
grant
accidental
disability
allowances to a member if:
retirement
(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.
SPP § 29-109(b).
But “[b]efore the Board of Trustees grants a retirement
allowance for a disability, an application must be completed and
submitted to the Board of Trustees in accordance with §§ 29-103 and
29-104 of this subtitle.”
SPP § 29-102.
6
“Subject to § 29-104 of
this subtitle,” applications “may be submitted (1) by a member; (2)
by a former member; or (3) for a member,” by “the member’s
department head” in the event that the “member is unable to
apply[.]”
SPP § 29-103(a)-(b)(2).
Section 29-104, as set forth above, prohibits the Board from
“accept[ing] an application for accidental disability filed by a
member or former member more than 5 years after the date of the
claimed accident.”
SPP § 29-104(d)(2).
The current language of
this subsection reflects the General Assembly’s decision to repeal
a previous exception that allowed the Board to accept an accidental
disability retirement application if
the member . . . prove[d] to the satisfaction
of the medical board that failure to submit an
application within the required 5 years was
attributable solely to physical or mental
conditions that resulted
directly from the
event or act of duty that caused the
disability.
See 1997 Md. Laws, ch. 158 (amending former SPP § 29-104(d)(2)).
Marsheck And Mitchell
Although there is no reported Maryland decision construing the
limitations period in SPP section 29-104(d)(2), there are two cases
that
interpret
and
apply
an
analogous
accidental
disability
retirement statute enacted by the Baltimore City Council for the
benefit of City employees.2
We find both cases instructive.
2
The Baltimore City Code uses the term “special disability”
for disabilities stemming from work-related accidents. The Code
(continued...)
7
In Marsheck v. Bd. of Trustees of the Fire & Police Employees’
Retirement Sys. of Baltimore City, 358 Md. 393 (2000), the claimant
police officer suffered an on-the-job back injury that required
continuous medical treatment, including three surgeries, multiple
epidurals, and physical therapy.
Despite her efforts to continue
employment, her condition steadily worsened until she could no
longer continue to work on either full or light duty.
She was not
certified as permanently disabled until seven days before the five
year limitations period expired.
She mailed her application the
day before, but it was not docketed as received until 13 days after
the period expired.
The Court of Appeals held that five years from the date of
injury meant five years from the date on which the claimant
suffered an accidental back injury, even though it took some time
for that injury to progressively worsen to the point that she was
forced to seek special disability retirement (the City’s analog to
accidental disability retirement). See id. at 409. Thus, the five
year limitations period barred her claim even if it was filed only
one day late.
Acknowledging the harsh result, the Court of Appeals explained
2
(...continued)
provides that “any claim for special disability benefits must be
filed within five (5) years of the date of the member’s injury[,]”
with the injury deemed to occur on the date of the accident that
caused the claimant’s disability. See Marsheck v. Bd. of Trustees
of Baltimore Fire & Police Employees’ Retirement Sys., 358 Md. 393,
399 n.1, 409 (2000).
8
that the task of balancing countervailing State interests in
recompense and repose belongs to the legislature rather than the
judiciary.
“Statutes of limitations re-enforce predictability,
which is a cornerstone of such benefit statutes.”
Id. at 413.
Although disability retirement statutes are remedial in nature,
courts will “‘refuse to give statutes of limitations a strained
construction
omitted).
to
evade
their
effect.’”
Id.
at
404
(citation
That is because
[s]tatutes of limitations are also remedial
and grounded upon sound public policy. In
addition
to
serving
important
societal
benefits, such as judicial economy, they are
designed
to
balance
competing
interests
between potentially adverse parties. . . . The
legislature, in drafting such legislation,
implicitly recognizes that as time passes,
difficult evidentiary issues arise, such as
proof of the cause of injury, faded memories,
and
the
availability
of
witnesses.
Furthermore, without closure on the filing of
such claims, potential defendants are often
faced with uncertainty that may affect their
future financial viability. By closing the
window, the statute of limitations grants
repose to potential defendants that would be
disadvantaged unfairly by stale claims due to
unreasonably long delay. The final result is
that the "right to be free of stale claims in
time comes to prevail over the right to
prosecute them." . . . [T]here is no magic to
the
window
of
time
determined
by
the
legislature.
"It
simply
represents
the
legislature's judgment about the reasonable
time needed to institute suit."
Id. at 404-05 (citations omitted).
For that reason, courts are not at liberty to “modify the
disability system ad hoc to suit our sensibilities and pivot around
9
the legislature’s true intentions.”
affirmed
the
denial
of
special
Id. at 414.
disability
The Court
benefits,
while
“acknowledg[ing] that permanent disability may occur after the five
year limitation period and that in some circumstances, such as
[Marsheck’s] situation, the strict application of the statute
results in excluding her from a disability benefit that she might
very well deserve in an unregulated universe.”
Id. at 413-14.
Bd. of Trustees for the Fire and Police Employees’ Retirement
Sys.
of
Baltimore
City
v.
Mitchell,
145
Md.
App.
1
(2002),
illustrates how difficult application of such a five year statute
of limitations can be.
In that case, a firefighter who cleared
toxic substances for the benefit of those who came behind him was
diagnosed with a malignant esophageal tumor in May 1993.
After
surgery and nearly five years of “clear” checkups, he was diagnosed
with
pancreatic
cancer
in
April
1998.
He
filed
a
special
disability retirement claim on September 8, 1998.
On appeal from the grant of special disability benefits, we
vacated the judgment and remanded.
See id. at 6.
The panel
unanimously held that cancer qualifies as an “injury” under the
statutory scheme.
See id. at 15.
A majority held that it was
unclear whether Mitchell’s pancreatic cancer was a new injury in
that it was a primary cancer, or whether it was a manifestation of
the original 1993 injury in that it was a metastasized cancer.
See
id. at 17. We remanded for that factual determination, instructing
10
that
if
it
“was
metastatic,
having
originated
in
Mitchell’s
esophagus, we believe that Mitchell’s claim for those benefits is
time barred.”3
In
Id.
doing
underlying
so,
we
emphasized
the
statutes
of
limitation
and
predictability
the
policy
reasonableness
of
avoiding a constantly changing deadline that could conceivably be
extended “for
countless
progressive
diseases
and
degenerative
conditions, as . . . each time another organ or part of the body
was invaded or affected during the course of an illness.”
17-18.
But
we
also
recognized
the
inherent
Id. at
difficulty
that
absolute cut-off dates create.
[W]e are mindful of the unfortunate paradox
that our ruling perpetuates today: Mitchell
could not have filed his application for
special disability benefits until he was
disabled and, by that time, the statute of
limitations for such claims had run. That
predicament is no doubt the lot of every
claimant who has a work-related, progressively
debilitating condition or disease that does
not render him or her disabled within the
statute of limitations for special pension
benefits. Indeed, it was precisely Marsheck's
predicament. The only difference is that
3
The dissent posited that the pancreatic cancer diagnosis was
a separate injury, such that “when the injury in question is a
latent occupational disease, the ‘date of injury’ . . . is the date
the injured person knew or should have known that he has contracted
the disease.” 145 Md. App. at 21. This debate over the date on
which a disability-causing occupational disease occurs is factually
inapplicable to Fedorowicz’s case; this record establishes that
Fedorowicz’s disability resulted from a discrete accidental injury
that occurred more than five years before the application was
filed, the physical results of which Fedorowicz was aware at all
times.
11
Marsheck knew of her condition, and appellant
did not. But that does not materially
distinguish the two cases. Because whether or
not Mitchell knew that his cancer had spread,
he would not have been able to file his claim,
like Marsheck, until he was totally disabled.
This of course seems unfair. But, under
current law, we can do no more than point out
the inequity of granting special disability
benefits to those whose disabilities follow on
the heels of job-related injuries, while
denying them to those whose disabilities
develop over time. The decision to extend the
coverage of . . . the Retirement Act is a
legislative one, and therefore must be left to
the appropriate legislative body to decide. On
this point, the words of the Marsheck Court
bear repeating:
The statute of limitations ... which
excludes [Marsheck] from receiving
her special disability benefits, was
enacted by the City Council, not by
this Court. We will not modify the
disability system ad hoc to suit our
sensibilities and pivot around the
legislature's true intentions.
Id. at 18-19 (quoting Marsheck).
Fedorowicz’s Interpretation Of The Statute
In an effort to avoid the five year deadline in SPP section
29-104(d)(2), Fedorowicz asserts that “[a] thorough review of SPP
Title 29, Subtitle 1 . . . in its entirety” leads to the conclusion
that the limitations period does not apply to him.
This is because
his application was not “filed by a member or former member[,]” but
by the MSP itself in accordance with SPP section 29-103(b), which
provides that, “[i]f a member is unable to apply, the member’s
12
department head may complete and submit an application to the Board
of Trustees for the member[.]” (Emphasis added.)
In
support
of
his
contention
that
he
did
not
file
the
application, Fedorowicz cites his affidavit describing how the MSP
Medical Director and Disability Retirement Coordinator “controlled
the process of applying[.]”
Fedorowicz emphasizes that he
wanted to continue his employment but his own
department wanted him retired on accidental
disability,” so “they ordered him to see their
physicians to determine him disabled and
ordered him to file paperwork for disability
with them or risk being fired.
It was not
Fedorowicz who failed to file timely.
If
there was a failure, it was on the part of the
MSP.
In Fedorowicz’s view, the five year limitations period in
section 29-104(d)(2) does not bar consideration of his application
because (a) he “never sought retirement; his department thrust it
upon him,” (b) he was unable to apply due to the MSP’s failure to
timely conclude independent medical examinations, and (c) he was
misled by the MSP to believe that the agency would apply on his
behalf.
Alternatively, the five year deadline was tolled by
operation of a discovery rule, which applies “as a rule of reason”
so that the clock on his claim did not begin to run until April
2001, when he discovered his disability through the MSP’s actions.
SRPS’s Interpretation Of The Statute
The SRPS responds that there is no explicit or implicit
exception to the five year limitations period in section 29-
13
104(d)(2),
under
which
Fedorowicz
could
be
exempt
from
the
statutory deadline on the basis of either the discovery rule or the
role played by the MSP in his application.
The discovery rule does
not apply for all of the reasons set forth in Marsheck.
Moreover,
no exception may be made in Fedorowicz’s case, because it was his
duty to apply and he easily could have done so within the five
years following his injury.
“There is simply no prerequisite that
an applicant need obtain any sort of ‘finding of disability’ from
the member’s employer, or submit to any examination by the employer
before applying for disability.”
Whether the application was
physically submitted to the Board by Fedorowicz himself or by the
MSP is immaterial because the five year deadline governs in both
circumstances.
Discovery Rule
We agree with the SRPS, the ALJ, and the circuit court that
the five year limitations period in SPP section 29-104(d)(2) is not
subject to a discovery rule.
Both the repose and the legislative
balancing rationales articulated in Marsheck are equally applicable
to this state statute given the similarity in language and purpose
of those provisions.
We specifically reject Fedorowicz’s contention that Marsheck
is distinguishable on the facts and the law.4
4
Fedorowicz distinguishes
following grounds:
his
case
The dispositive fact
from
Marsheck
on
the
(continued...)
14
in Marsheck, Mitchell, and this case is that each claim was filed
after the five year limitations period expired.
To be sure, there
are different reasons for each claimant’s late filing.
But, as we
observed in Mitchell, such differences are not material because the
legislature has not allowed any exception based upon the claimant’s
reason for missing the deadline.
To the contrary, the General
Assembly eliminated just such an exception in 1997.
Laws, ch. 158.
See 1997 Md.
Thus, any factual distinctions between Fedorowicz,
Marsheck, and Mitchell are irrelevant to the legal analysis that
controls all three cases.
As we recognized in Mitchell, even proof that Fedorowicz did
4
•
(...continued)
Marsheck was unable to report for work in any capacity for
five months before she applied for accidental disability
retirement, whereas Fedorowicz worked continuously even after
he was medically determined to be disabled.
•
Marsheck applied on her own behalf, whereas Fedorowicz was
ordered to apply and was told at that time that MSP Retirement
Benefits Coordinator Michelle Miller would do so on his
behalf.
•
Marsheck sought out her own medical evaluations by her own
physicians, whereas Fedorowicz was ordered to undergo
evaluations.
•
Marsheck got an opinion that she was totally disabled before
the five year limitations period ran, whereas Fedorowicz did
not receive the necessary evaluations until after.
•
Marsheck consulted an attorney before the deadline expired;
Fedorowicz relied on the MSP’s Medical Director and Disability
Coordinator, who never informed him about the five year
deadline and who advised him to “just wait” when there were
only two weeks remaining in the five year filing period.
15
not know and could not have known within the five year period that
his injury would result in a qualifying disability could not have
extended the statutory deadline.
Accordingly, assuming arguendo
that Fedorowicz’s physical limitations did not become severe enough
to warrant application for accidental disability retirement until
late in the five year period, Marsheck and Mitchell teach that such
circumstances do not permit the Board to disregard the five year
deadline established by the legislature.
We do not agree with Fedorowicz that the remedial nature of
accidental disability benefits requires a different reading of
section 29-104(d)(2).
The Marsheck Court rejected discovery rule,
remedial purpose, and substantial compliance arguments similar to
those made by Fedorowicz in this Court.
The Court explained that,
although “[r]emedial legislation, such as governs the retirement
system here, must be construed liberally in favor of injured
employees
in
order
to
effectuate
the
legislation’s
remedial
purpose[,]” appellate courts “will not add provisions or tailor
existing ones to change the mandatory nature of the statute’s
language in order to favor the disability claimant.”
We
find
the
decision
and
rationale
articulated
Id. at 403.
in
Marsheck
persuasive and therefore reject Fedorowicz’s attempt to engraft a
discovery rule onto SPP section 29-104(d)(2).
Application Initiated Or Submitted By The Employer Agency
In addressing Fedorowicz’s argument that the MSP’s role in his
16
application makes the five year limitations period inapplicable, we
hold as a threshold matter that this application was filed by
Fedorowicz rather than by the MSP.
To be sure, section 29-103(a)
permits an employer agency to submit an application on behalf of a
“member who is unable to apply” himself. But we have not been
directed to anything in this record that would suggest Fedorowicz
was “unable to apply” on his own behalf.5
To the contrary,
unrebutted evidence established that Fedorowicz remained able to
submit his own application throughout the salient five year period
and that the application bears his signature rather than that of
his department head.
More importantly, even if we were to treat this application as
having been submitted by the MSP on Fedorowicz’s behalf, we would
still apply the five year limitations period in SPP section 29104(d)(2).
A review of Title 29 makes it clear that an application
“submitted . . . for a member” pursuant to section 29-103(a)(3)
must be treated as an application “filed by” that member under
section 29-104(d)(2).
(Emphasis added.)
There is no separate
procedural track for applications “submitted . . . for” an employee
by his agency. Such applications remain “[s]ubject to § 29-104[,]”
5
It is not the MSP, but the SRPS Board of Trustees and its
Medical Board, who investigate accidental disability claims and
determine whether a claimant is permanently disabled. See SPP §
29-105(2), 29-109(b)(1)-(2).
They may arrange for independent
medical evaluations. See SPP § 29-126(d)(1).
17
so that the five year limitations period in section 29-104(d)(2) is
equally applicable to all accidental disability claims, even when
they are initiated by the employer agency or submitted to the Board
by the employer agency.
Conclusion
We
reach
the
same
difficult
result
as
the
Marsheck
and
Mitchell Courts reached in interpreting the analogous statute of
limitations for claims by Baltimore City employees.
SPP section
29-104(d)(2) is a statute of repose that balances the State’s
interest in compensating employees whose disabilities stem from
workplace
accidents
with
its
countervailing
interest
predictability created by a statute of limitations.
in
the
We hold that
the five year period in SPP section 29-104(d)(2) may not be
circumvented by the “discovery rule,” evidence of “substantial
compliance,” the “rule of reason,” or any other equitable or common
law considerations.
Nor can it avoided by narrowly reading the
statute to exclude applications that were initiated or submitted by
an employer agency.
Thus, the limitations period began to run on July 19, 1996,
the date of Fedorowicz’s injury, and expired on July 19, 2001.6
The Board, the ALJ, and the circuit court correctly ruled that
6
We do not address whether claimants like Fedorowicz may
assert a claim directly against the employer agency that allegedly
caused the application to be submitted late, subject to any
applicable notice and governmental immunity restrictions.
18
Fedorowicz’s
application
for
accidental
disability
retirement
benefits could not be considered because it was filed more than
five years after the claimed accident.
To be sure, we share the sentiments expressed in Marsheck and
Mitchell that application of such a five year deadline can penalize
employees who admirably “tough it out” after an on-the-job injury;
employees who, through little or no fault of their own, learn about
their disability after the five year limitations period; and even,
as in this case, employees who rely on allegedly inadequate advice
and assistance by their employer agency during the application
process.
But the existence of such “hard cases” is an inherent
feature of the statutory scheme – one that reflects a legislative
choice between repose and recompense, and one that the Court of
Appeals has explained we cannot ignore under the guise of statutory
construction.
Five years “‘represents the legislature’s judgment
about the reasonable time needed to institute’” an accidental
disability retirement claim.
See Marsheck, 358 Md. at 405.
We
reiterate that changing that deadline is the type of public policy
decision that must come from the legislature rather than the
judiciary.
JUDGMENT AFFIRMED.
PAID BY APPELLANT.
19
COSTS TO BE
