Circuit Court for Baltimore City. Case Nos. 24-C-13-008443,
by Lyndsey Beidle Meninger (Injured Workers' Insurance
Fund of Towson, MD) on brief for Petitioner.
by Ellen Dunn Jones, Assistant Attorney General (Brian E.
Frosh, Attorney General of Maryland of Hunt Valley, MD) on
brief for Respondents.
C.J.[*] Battaglia, Greene, Adkins, McDonald,
Watts, Harrell, Jr., Glenn T. (Retired, Specially Assigned),
Md. 214] Greene, J.
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.
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 [447 Md. 215] 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)?
shall answer this question in the affirmative and affirm the
judgment of the Court of Special Appeals.
Md. 216] FACTUAL AND PROCEDURAL BACKGROUND
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.
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
approved by the commission . . . ."  LE § 9-806(a).
The assessment [447 Md. 217] " 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).
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 [447 Md. 218] retirement benefits from
the MTA. The offset of $118.27
per week lowered the final amount of compensation to
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 [447 Md.
219] that " the 6.5% assessment is on the amount that
the Commission gave to the claimant[,] which is 30%."
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. Therefore, it reasoned that the
phrase " amount payable" is inapplicable to the
present case which involved an award of compensation for
13, 2002, claimant, a Baltimore County (" County" )
firefighter, Gary Shipp (" Shipp" ), became
disabled as a result of hypertension and coronary artery
disease. He filed a claim with the Commission. After a
hearing, the Commission issued [447 Md. 220] an Award of
Compensation on March 5, 2012. It found that Shipp sustained
permanent partial disability " amounting to 50%
industrial loss of use of the body as the result of injuries
to the body (hypertension) and coronary artery disease."
To compensate for this permanent partial disability, the
Commission awarded weekly payments of $525.00
for a period of 333 weeks, for a total award of $174,825.00.
The County filed a request for rehearing when it realized the
March 5, 2012 Award of Compensation did not account for the
statutory offset that it was entitled to under LE §
9-503(e). The County pointed out that it had been paying
Shipp service retirement benefits. LE § 9-503(e)
provides an offset to prevent the weekly total retirement
benefits and occupational disease compensation from exceeding
an employee's weekly salary. The Commission issued a new
Award of Compensation on March 29, 2012 and rescinded the
March 5, 2012 Award. The new Award of Compensation accounted
for the LE § 9-503 offset. Shipp received service
retirement benefits [447 Md. 221] in the amount of $605.55
per week, which was subtracted ...