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Montgomery County v. Robinson

Court of Appeals of Maryland

September 27, 2013

Montgomery County, Maryland
v.
Brenda O. Robinson Board of Education of Montgomery County, Maryland
v.
Jamie Anderson

Barbera, C.J. Harrell Battaglia Greene Murphy, Adkins, [*] Bell, JJ.

OPINION

BELL C. J.

In 1968, this Court was presented with the question of whether, under the Workmen's Compensation Act, Maryland Code (1957, 1967 Cum. Supp.), Art. 101, the predecessor of The Workers' Compensation Act, Maryland Code (1991, 2008 Repl. Vol.) Title 9 of the Labor and Employment Article (L&E), "an award of disability under [§] 36 (4), concerning other cases, may be combined with an award under [§] 36 (3), concerning specific injuries, so as to bring both awards within the purview of the serious disability provisions of [§] 36 (4a) and [§] 36 (3a)." Barnes v. Ezrine Tire Co., 249 Md. 557, 558, 241 A.2d 392, 393 (1968).

Art. 101, § 36 (3), like its successor today, L&E § 9-627 (a) – (h), prescribed a schedule of benefits and the "weeks" of compensation for specific injuries resulting in permanent partial disability. Section 36 (4) provided, as its successor L&E § 9-627 (k) also does, that all other cases of permanent partial disability are to be determined from the percentage by which the industrial use of the body is impaired as a result of the injury.[1] Sections 36 (3a) and 36 (4a) provided for an increased rate and amount of compensation for those persons suffering a "serious disability, " which they both defined. Sections 36 (3a) and 36 (4a)[2] provided:

"(3a) (Permanent partial disability-Specific injuries)-Serious disability.-A person who receives under subsection (3) of this section an award for a period of one hundred and seventy-five weeks or more is thereby considered to have a serious disability. He automatically shall be entitled to (in addition to the award under subsection (3)) an extra award of a number of weeks equal to one third (computed to the nearest whole number) of the number of weeks awarded under subsection (3); and the award of compensation to him in no case shall exceed forty dollars per week; and as to him the maximum limitation of $12, 500 shall not apply.
"(4a) (Permanent partial disability-Other cases)-Serious disability.-A person who receives under subsection (4) of this section an award equal in total to forty per centum or more of $12, 500 is thereby considered to have a serious disability. He automatically shall be entitled to (in addition to the award under subsection (4)) an extra award of a number of weeks equal to one third (computed to the nearest whole number) of the number of weeks awarded under subsection (4); and the award of compensation to him in no case shall exceed forty dollars per week; and as to him the maximum limitation of $12, 500 shall not apply."

The Workers' Compensation Commission ("Commission"), reading the sections together, combined the awards so that the claimant qualified for serious disability under both § 36 (3a) and § 36 (4a), the effect of which was increased compensation. Barnes, 249 Md. At 560, 241 A.2d at 394. The Baltimore City Court[3] granted summary judgment in favor of the employer and insurer, and we affirmed. Id. at 563, 241 A.2d at 396. In so doing, we rejected the claimant's argument that there was a conflict or ambiguity in the compensation law, and held that there is "no basis for combining a non-qualifying award under one subsection with a qualifying award under the other subsection so as to make both of them qualify." Id. at 562, 241 A.2d at 395. We explained:

"The arguments made by the claimant fly in the face of the legislative intent. Chapter 322 was enacted 'to create certain new categories (emphasis ours) of persons having a serious disability.' Subsection (3a) sets forth the conditions necessary for an injury to qualify as a serious disability under 36 (3) relating to specific injuries. Likewise, subsection (4a) sets forth the conditions necessary to qualify as a serious disability under 36 (4) concerning other injuries. In so doing, the legislature intentionally created two new categories. Had the legislature intended that (3a) and (4a) should be read together, it undoubtedly would have enacted only one additional subsection to s 36 with regard to serious disabilities. Furthermore, the qualifying conditions under 36(3a) and 36(4a) are not identical. In order for a claimant to qualify for a serious disability award under (3a), he must have been awarded compensation for 175 weeks or more under 36(3). And in order for him to qualify under (4a), the claimant must have been awarded compensation for 200 weeks or more (i.e., an award equal to 40% or more of $12, 500 at $25 a week)."

Barnes, 249 Md. at 562, 241 A.2d at 395.

Following the Barnes decision, the General Assembly amended § 36. See Ch. 446, Acts of 1970. Significantly, in light of the Barnes holding and the rationale underlying it, the "serious disability" provisions previously separately codified as §§ 36 (3a) and 36 (4a) were combined into a single provision, § 36 (4a), which was made applicable to all injuries arising "from one accident, " whether enumerated in § 36 (3) or falling into the other cases category of § 36 (4). It provided:

"(4a). Serious Disability.—A person who, from one accident, receives an award of compensation for a period of two hundred and fifty (250) weeks or more under subsections (3) or (4) or a combination of both, is thereby considered to have a Serious Disability; except any award for disfigurement or mutilation under subsection (3)(f) of this section shall not be considered in the determination of a Serious Disability. The weeks for such award shall be increased by one-third (computed to the nearest whole number); and the compensation shall be for sixty-six and two-thirds per centum of the average weekly wages, in no case to exceed Sixty-five dollars ($65.00) per week and not less than a minimum of twenty-five dollars per week unless the employee's established weekly wages are less than twenty-five dollars per week at the time of the injury, in which event he shall receive compensation equal to his full wages. This subsection, to the extent of any inconsistency, prevails over subsection (3) and (4); but otherwise subsections (3) and (4) apply to persons covered by this subsection. Provided, however, that any additional compensation for permanent partial disability on a petition to reopen shall not increase the amount of compensation previously awarded and actually paid."

Sections 36 (3) and (4), to which amended § 36 (4a) expressly referred, continued to provide as they did prior to the amendment to the serious disability provision.

Thus, as the Court of Special Appeals observed in Carter v. Allen, Son & Company, Inc., 28 Md.App. 541, 544, 346 A.2d 453, 455-56 (1975), "There can be no doubt of the legislative intent in the passage of the 1970 legislation whereby § 36 (3a) and § 36 (4a) were repealed and the new § 36 (4a) enacted." The court explained:

"It is patent that the new subsection, combining the two prior subsections into one, was a legislative response to [the Barnes] decision. The new legislation made clear that the full actual disability of a workman must be considered in the determination of 'serious disability, ' whether it was the product of scheduled specific injuries under § 36 (3) or to the body as a whole under the 'other cases' provisions of § 36 (4) or to a combination of both."

Id. at 546, 346 A.2d at 456. See Duckworth v. Kelly-Springfield Tire Co., 30 Md.App. 348, 354, 353 A.2d 1, 4, aff'd, 278 Md. 361, 363 A.2d 965 (1976).

Subsequently, in 1987, pursuant to Recommendation No. 20 of the Governor's Comm'n to Study the Workers' Comp. Sys., (1987), by Acts of 1987, ch. 591, § 2, effective January 1, 1988, the General Assembly again amended § 36, this time to add, inter alia, another level of compensation for permanent partial disability to provide for the compensation of disabilities "for a period greater than or equal to 75 weeks but less than 250 weeks."[4] So amended, § 36 (3) (a) provided, as relevant:

"(3) Permanent partial disability - Specific injuries. - (a) In case of disability partial in character but permanent in quality, compensation shall be paid to the employee at the ...

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