Circuit Court for Baltimore City Case Nos. 24-C-13-008443, 03-C-13-014577
Barbera, C.J. [*] Battaglia, Greene, Adkins, McDonald, Watts, Harrell, Jr., Glenn T. (Retired, Specially Assigned), JJ.
The two cases before us arise out of decisions from the Workers' Compensation Commission ("the Commission"). In both cases, the Commission concluded that under Md. Code (1991, 2008 Repl. Vol., 2015 Cum. Supp.), § 9-806 of the Labor and Employment Article ("LE"),  the amount owed to the Subsequent Injury Fund ("the SIF" or "the Fund") by the employers, the Maryland Transit Administration ("the MTA") and Baltimore County ("the County"), is 6.5% of the Commission's award of compensation prior to the deduction of any statutory offset.
In the first case, the employer, the MTA, filed in the Circuit Court for Baltimore City a petition for judicial review of the Commission's decision in the MTA's case. On April 21, 2014, after a hearing, the Honorable Pamela J. White of the Circuit Court for Baltimore City entered an Order affirming the decision of the Commission. The MTA filed a timely Notice of Appeal to the Court of Special Appeals. In the second case, the employer, the County, filed in the Circuit Court for Baltimore County a petition for judicial review of the Commission's decision in the County's case. Subsequently, both the County and the SIF filed Motions for Summary Judgment. A hearing was held on July 29, 2014 before the Honorable Ruth A. Jakubowski of the Circuit Court for Baltimore County. Judge Jakubowski found that there were no issues of disputed fact and that the issue was strictly a matter of legal interpretation. On the same day, Judge Jakubowski entered an Order granting the SIF's Motion for Summary Judgment and denying the County's. The County filed a timely Notice of Appeal to the Court of Special Appeals. On December 17, 2014, the Court of Special Appeals granted the MTA's and the County's Joint Motion to Consolidate the cases. In a reported opinion, the Court of Special Appeals affirmed the judgments of the Circuit Court for Baltimore City and the Circuit Court for Baltimore County. Injured Workers' Ins. Fund v. Subsequent Injury Fund, 222 Md.App. 347, 112 A.3d 1092 (2015). The MTA and the County each filed a petition for writ of certiorari with this Court in the cases of Injured Workers' Ins. Fund v. Subsequent Injury Fund, 443 Md. 234, 116 A.3d 474 (2015) and Baltimore Cty. v. Subsequent Injury Fund, 443 Md. 234, 116 A.3d 474 (2015), respectively. We granted certiorari in both cases and consolidate them in this opinion to address the common question, which we have rephrased:
Should the SIF assessment under LE § 9-806 be calculated based on the amount of an award prior to the statutory offsets granted by §§ 9-610 and 9-503(e)?
We shall answer this question in the affirmative and affirm the judgment of the Court of Special Appeals.
FACTUAL AND PROCEDURAL BACKGROUND
The SIF originated in Chapter 637 of the Acts of 1945. It was created by the General Assembly for the purpose of encouraging employers to employ disabled individuals "by limiting the [employer's] liability . . . in the event the previously disabled or injured individual sustained a subsequent occupational injury, although not of itself disabling, but which, coupled with previous impairment, rendered the individual permanently disabled." Anchor Motor Freight, Inc. v. Subsequent Injury Fund, 278 Md. 320, 324, 363 A.2d 505, 508 (1976) (citing Subsequent Injury Fund v. Pack, 250 Md. 306, 308, 242 A.2d 506, 508 (1968)). In the event an employee with a previous impairment suffers a subsequent injury on the job, the employer is liable to the employee only for injuries attributable to the work-related injury. See LE § 9-802. The SIF compensates the employee for the proportion of the injury that is attributable to a pre-existing condition. Id.
The SIF has only one source of revenue. It is funded by a 6.5% statutory assessment imposed on employers and insurers for "(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 . . . ." LE § 9-806(a). The assessment "is for [the] payment of claims submitted to the Subsequent Injury Fund and is not a tax intended to benefit the State." LE § 9-806(e).
The MTA Award
On November 22, 2010, claimant, Salvatore Glorioso, Jr. ("Glorioso"),  suffered a work-related injury in the course of his employment with the MTA. He subsequently filed a claim with the Commission. After a hearing, the Commission issued an Award of Compensation on September 11, 2012. It found that Glorioso sustained permanent partial disability "amounting to 30% industrial loss of use of the body as the result of an injury to the back." To compensate for this permanent partial disability, the Commission awarded weekly payments of $307.00 for a period of 150 weeks, for a total award of $46, 050.00. The MTA was, however, entitled to an offset under LE § 9-610 because Glorioso also received disability retirement benefits from the MTA. The offset of $118.27 per week lowered the final amount of compensation to $28, 390.50.
On August 9, 2013, the SIF filed Issues with the Commission, stating "[t]he Employer and Insurer refuse to pay the 6.5% assessment on the award dated 9/11/12." The SIF took the position that "the assessment is due on the amount of the award regardless of any offset for retirement benefits" and requested a hearing on the issue. Following a hearing, the Commission issued an Order on December 17, 2013 requiring the MTA to pay the 6.5% assessment on the amount of compensation prior to offset. It stated that, "[t]he Commission gave or awarded the claimant 30% industrial loss of use of the body as a result of injuries to the back." Basing its decision on the rules of statutory construction,  it explained that "the 6.5% assessment is on the amount that the Commission gave to the claimant[, ] which is 30%."
In the December 17, 2013 Order, the Commission also addressed the MTA's argument that the assessment should be on the amount payable, i.e., the amount the employer owes after the offset. The Commission concluded that "[a]n assessment on an amount payable is only for a settlement agreement." (emphasis in original). It noted that LE § 9-806(a)(1) distinguishes between settlement agreements and awards for permanent disability or death, using the phrase "amount payable" to impose the assessment on settlement agreements, but not to impose the assessment on awards for permanent disability or death.Th ...