CHARLES C. REGER
WASHINGTON COUNTY BOARD OF EDUCATION ET AL.
Argued: March 3, 2017
Court for Washington County Case No.: 21-C-13-049084
Barbera, C.J. Greene, Adkins, McDonald, Watts, Hotten, Getty,
November 12, 2007, the petitioner, Charles Reger, Jr., was
moving a cafeteria table while working as a custodian for
respondent Washington County Board of Education
("Employer"), when the table fell on Mr. Reger,
pinning him to the ground. Following the accident, Mr. Reger
was diagnosed with significant injuries, primarily to his
back and neck, and was unable to perform his custodial work.
Mr. Reger thereafter sought and received two different sets
of disability benefits from the Employer and respondent
Maryland Association of Boards of Education Compensation
Self-Insurance Fund ("Insurer"), each awarded by a
different state agency: he was granted temporary total
disability benefits by the Workers' Compensation
Commission ("WCC" or "the Commission")
and ordinary disability retirement benefits by the State
Retirement Agency, the administrative arm of the Maryland
State Retirement and Pension System
and Insurer (collectively, "Respondents")
subsequently petitioned the WCC to offset Mr. Reger's
ordinary disability benefits against his temporary total
disability benefits pursuant to the statutory offset
provision in Maryland Code (1991, 2008 Repl. Vol.), Labor and
Employment Article ("LE") §
9-610. The Commission agreed, finding that the
Respondents were entitled to a credit for the ordinary
disability benefits already paid to Mr. Reger in the amount
of $54, 486.50, with that credit to be applied to any
"future Awards of indemnity" assessed against
Respondents in favor of Mr. Reger.
Reger petitioned for judicial review of the WCC's
decision before the Circuit Court for Washington County.
After holding a hearing as to cross-motions for summary
judgment, the circuit court granted summary judgment in favor
of the Commission, holding that "[a]s a matter of law in
this case, the benefits are indeed within the statute similar
and therefore the statutory offset applies." Mr. Reger
noted an appeal to the Court of Special Appeals from the
circuit court's ruling and, in an unreported opinion, the
Court of Special Appeals affirmed the judgment of the circuit
court. Mr. Reger thereafter petitioned this Court for a writ
of certiorari, which we granted.
sole issue presented by this appeal is whether the WCC
correctly applied LE § 9-610 to find that the
Respondents were entitled to offset the ordinary disability
benefits already paid to Mr. Reger against the temporary
total disability benefits paid to him by the Respondents. We
shall affirm the WCC's finding. Under the circumstances
of this case, both sets of benefits were awarded to
compensate Mr. Reger for the same back and neck injuries.
Because both sets of benefits compensated Mr. Reger for the
same injury, pursuant to LE § 9-610, the benefits were
legally "similar benefits, " and the statutory
offset properly applied to prevent a double recovery for the
approximately 29 years, Mr. Reger worked as a custodian for
the Washington County Board of Education. On November 12,
2007, while working at Williamsport High School, a large
folding cafeteria table fell on Mr. Reger while he was moving
it, pinning him to the ground. Mr. Reger suffered injuries to
his neck, back, left leg, and left elbow. Immediately after
the accident, Mr. Reger was unable to perform his regular
duty custodial work, but was able to return to work on
light-duty. His final day of work as a custodian was in May
Initial Medical Treatment
February 29, 2008, roughly three and a half months after his
work injury, Mr. Reger saw Dr. Thomas Larkin at Parkway
Neuroscience and Spine Institute about his injuries. Mr.
Reger's medical records from that visit indicate a
diagnosis of "SPONDYLOLISTHESIS
(738.4)." Mr. Reger returned for a follow-up visit
to Dr. Larkin's practice on March 19, 2008, where a
second diagnosis of "CERVICAL STENOSIS
(723.0)" was added. Dr. Larkin saw Mr. Reger for
additional follow-up visits on June 4, July 2, and September
Workers' Compensation Claim
the November 12, 2007 accident, Mr. Reger received initial
temporary total disability payments from the Insurer from
March 6, 2008, through July 15, 2008. On July 18, 2008, Mr.
Reger, through counsel, filed a claim with the Workers'
Compensation Commission based on injuries sustained in the
accident. In his claim, Mr. Reger stated that the accident
occurred when he was "moving [a] large cafeteria
table-table fell on me and I fell to [the] floor hurting my
back, neck, and hand and legs."
November 7, 2008, the WCC held a hearing on Mr. Reger's
claim. At that hearing, Mr. Reger's counsel provided the
WCC with a surgical recommendation from a physician at the
University of Maryland Medical Center that Mr. Reger undergo
"lumbarsurgery, " which would involve a
"L5-S1 decompression with fusion and
stabilization." On that basis, Mr. Reger's counsel
requested that Mr. Reger continue to receive temporary total
disability benefits until he could undergo the surgery.
Counsel for the Employer and Insurer contested whether the
proposed surgery was causally related to the November 12,
2007 accident and argued that Mr. Reger was capable of
attempt to prove a causal connection between the accident and
the contemplated surgery, Mr. Reger's counsel asked him a
series of questions during direct examination. Mr. Reger
testified that he had never missed any time from work or
sought any medical treatment for "any back
problems" prior to the November 12, 2007 accident. When
questioned about an earlier 2004 injury involving a file
cabinet, Mr. Reger acknowledged receiving an MRI and going to
"some physical therapy" as a result of that
incident, but denied that the incident had resulted in any
back problems. He also testified that he went back to
performing custodial work after the 2004 injury, describing
it as "very physical work" that included regular
bending and lifting.
entered an order finding that Mr. Reger had reached maximum
medical recovery and that the requested lumbar surgery was
not causally related to the November 12 accident. On November
24, 2008, Mr. Reger filed a request for rehearing before the
WCC. Attached as an exhibit, he provided a letter from his
treating physician, Dr. Larkin, that stated,
[Mr. Reger] had a pre-existing spondylolisthesis in which he
managed to work effectively for years with this problem until
he had an accident at work. This temporal relationship of his
accident indicates to me that there is a reasonable degree of
medical certainty that his current condition is a result of
his accident at work.
denied Mr. Reger's request for a rehearing.
Mr. Reger timely sought judicial review of the WCC's
decision in the Circuit Court for Washington County. A
one-day jury trial was held on September 9, 2009. The jury
returned a verdict finding that Mr. Reger's lumbar
surgery was causally related to the November 12 accidental
injury. On September 16, 2009, the circuit court vacated the
order of the WCC and remanded the case to the WCC for entry
of an order finding,
1 Mr. Reger has not attained maximum medical improvement with
regard to his work-related back injury.
2 That Mr. Reger's need for back surgery is causally
connected to the accidental injury of November 12, 2007; and
3 Mr. Reger was temporarily totally disabled from July 16,
2008 to September 9, 2009[.]
Application for Disability Retirement Benefits
Mr. Reger's petition for judicial review of the WCC
decision that he had reached maximum medical recovery was
pending before the Washington County circuit court, he sought
benefits through a different avenue and filed an application
with the State Retirement Agency for accidental disability
retirement benefits on or about February 23, 2009. In the
"Statement of Disability" section to be completed
by the applicant, Mr. Reger was asked to describe his
"disability or medical condition." His response
indicated conditions to his lower back, neck, shoulder, left
leg, and left hand. He also described how he could not
physically perform certain functions of his job, including
climbing steps or ladders, standing for a long time, lifting
items, mowing grass, scrubbing doors, shoveling snow, etc. In
the application, Mr. Reger's witness described the
November 12 accident stating, "[Mr. Reger] was moving a
folding table with assistance of [another custodian] when
table lost balance and fell on Mr. Reger's legs and put
him to the floor, landing hard on his back."
of the application, Mr. Reger's treating physician, Dr.
Larkin, signed a Physician's Medical Report and described
Mr. Reger's medical history as including "cervical
spinal stenosis" and "lumbosacral spondylosis,
" with "cervical pain that radiates
into [his lower] shoulder [and] thoracic spine, and low back
pain that radiates into [his lower] calf." Dr. Larkin
further noted that Mr. Reger was unable to work at the time
of the application.
August 19, 2009, the Medical Board of the State Retirement
Agency issued its written recommendation, which stated,
It is the recommendation of the Medical Board that [Mr.
Reger] be approved ordinary disability due to
cervical spondylosis and stenosis lumbar spondylosis. The
medical evidence submitted supports a conclusion that the
member is permanently disabled and unable to perform his job
However, the Medical Board denied accidental
disability since the evidence submitted concerning the
accident did not prove that this event caused the permanent
September 15, 2009, the Disability Unit of the State
Retirement Agency transmitted a letter to Mr. Reger accepting
the Medical Board's recommendation, that Mr. Reger was
"entitled to an ordinary disability, due to Cervical
Spondylosis and Stenosis Lumbar Spondylosis." Mr.
Reger's accidental disability claim, however, was denied
based on the Medical Board's recommendation. The letter
outlined three options for Mr. Reger,
1. Accept an ordinary disability retirement allowance and
withdraw your claim for an accidental disability retirement
2. Accept an ordinary disability retirement allowance and
pursue your claim for an accidental disability retirement
3. Accept a service retirement, if eligible or continue to
receive your service retirement allowance and pursue your
claim for an accidental disability retirement allowance.
November 12, 2009, Mr. Reger submitted a letter of intent to
the Medical Board Secretary electing the first option and
withdrawing his accidental disability retirement claim. Mr.
Reger began receiving ordinary disability benefits from the
MSRPS on a payment schedule that began on his date of
retirement, March 1, 2009.
December 1, 2009, Mr. Reger presented to Dr. Charles Sansur
for a surgical consultation and examination. Dr. Sansur wrote
to Dr. Larkin, Mr. Reger's treating physician for his
back and neck symptoms, and stated that Mr. Reger "was
found to have a resultant spine injury from [the November 12,
2007] accident and has a diagnosis of a L5-S1
spondylolisthesis with pars fractures bilaterally." On
March 10, 2010, Mr. Reger underwent lumbar surgery-a surgical
fusion at L5-S1-and, thereafter, participated in
rehabilitative treatment. At some point during the course of
Mr. Reger's surgical or post-surgical treatment, Dr.
Sansur gave him a permanent restriction on returning to work
as a custodian due to the condition of his back and neck.
Mr. Reger's surgery, a follow-up independent medical
examination ("IME")-was conducted by orthopedic
surgeon Robert A. Smith, M.D. In his IME report dated September
23, 2010, Dr. Smith indicated that Mr. Reger had reached
maximum medical improvement from the "Grade I
spondylolisthesis" resulting from his work accident.
Mr. Reger once again filed issues with the WCC, and on
January 5, 2011, Mr. Reger appeared once more before the WCC.
At this hearing, Mr. Reger again testified at the WCC hearing
that prior to the November 12, 2007 accident, he had never
had any discomfort or sought treatment for a problem with his
neck. Mr. Reger requested the continuation of temporary total
disability benefits, this time based upon a recommendation
from Dr. Sansur for cervical spine and left elbow surgery.
Mr. Reger presented a report from Dr. Sansur, dated November
6, 2010, which stated,
Mr. Charles Reger has a known problem with spinal stenosis in
both the lumbar and cervical spine. He also has an ulnar
neuropathy. While the accident in 2007 is not the exact cause
of [Mr. Reger's] spinal stenosis, it is quite clear that
such an incident certainly exacerbated his symptoms and
resulted in him requiring further medical and surgical
treatment. While his lower back has been treated, the
cervical spine and ulnar neuropathy appear to [be]
progressing, and it is my feeling that these conditions have
been worsened by the accident. He continues to be unable to
Employer and Insurer contended that the elbow and spine
injuries for which Mr. Reger was seeking surgery were not
causally related to his November 12, 2007 accident.
order dated January 10, 2011, the WCC found that Mr. Reger
was entitled to temporary total disability from September 25,
2010, and continuing "until the completion of an
independent neurosurgical evaluation and
assessment." The WCC found that the disability to Mr.
Reger's elbow was not causally related to the November 12
accident and reserved ruling on whether the cervical spine
injury was causally connected to the accident until the
independent neurosurgical report was submitted. The parties
engaged Kevin McGrail, M.D., to conduct another IME and
prepare the neurosurgical report. On April 5, 2011, Dr.
McGrail completed his report, which stated in pertinent part,
The history, which I obtained from [Mr. Reger] in the office
today, as well as the medical records reveal that [Mr. Reger]
suffered a work-related accident which occurred on [November
12, 2007]. He was working as a custodian for the Board of
Education in Washington County, Maryland. He was moving a
large table when that table fell on him knocking him to the
Following this traumatic injury, [Mr. Reger] complained of
pain and discomfort involving his neck, upper extremities, as
well as his lower back. . . . His back pain and lower
extremity pain persisted and became unmanageable with
conservative measures . . . [S]urgery was recommended, and on
[March 10, 2010] Mr. Reger underwent an instrumented lumbar
spinal fusion at the L5-S1 level . . .
Mr. Reger also has a history of numbness, tingling[, ] and
pain in [his left arm] . . . [He] was found to have
compressive neuropathy of both the left ulnar and left median
nerves . . .
The medical records and history I obtained from Mr. Reger did
indicate that he suffered the aforementioned traumatic injury
[on November 12, 2007], which resulted in neck and low-back
pain [ ]. He tells me that prior to this time he did have
some issues with pain and discomfort in the lumbar spine but
it was not constant, much lower in intensity[, ] and clearly
seemed to be manageable with conservative measures. Although
Mr. Reger's L5-S1 grade 2 spo[n]dylolithesis was
congenital and degenerative, the accident seemed to have
significantly aggravated this condition to the point where it
became unmanageable with anything but a surgical procedure.
Based on his history, it does seem that the traumatic
incident was an aggravating factor to both his back pain and
his ultimate requirement for surgery. I do not think,
however, that the accident has anything to do with the [left
arm] ulnar and median neuropathy. . .
I think Mr. Reger has clearly reached a point of maximal
medical recovery . . . I hold all of the above opinions to a
reasonable degree of medical certainty.
reviewing the neurosurgical report, the WCC denied coverage
for Mr. Reger's cervical surgery on or about November 11,
Reger filed a petition for judicial review of that decision
on December 14, 2011. Following another one-day jury trial on
August 8, 2012, the WCC's order was vacated and the case
was remanded to the WCC for entry of an order finding Mr.
Reger's second proposed surgery to be causally related to
the November 12, 2007 accidental injury.
for Benefit Offset
October 23, 2013, the Employer and Insurer filed issues with
the WCC arguing that, under LE § 9-610, the benefits
paid for Mr. Reger's injury through workers'
compensation should be offset by Mr. Reger's ordinary
disability benefits. On November 8, 2013, another hearing was
held before the WCC. Mr. Reger's counsel claimed at that
hearing that the two benefits were "not at all [for] the
same condition" and that "there is clear evidence
that there is pre-existing [injury]." Mr. Reger's
counsel further argued that when the State Retirement Agency
granted Mr. Reger ordinary disability benefits and denied
accidental disability benefits it was "essentially
saying we don't believe this [was] accident related and
we believe it is due to some other things" such as a
"degenerative condition." And, he claimed that
"the law is clear that there is no offset for ordinary
[disability benefits]." Therefore, he contended that the
WCC was bound by that State Retirement Agency determination
that the benefits were for ordinary disability benefits and
could not offset those benefits. Counsel for the Employer and
Insurer countered that both benefits stemmed from the
November 12, 2007 accidental injury, and that under LE §
9-610 the General Assembly clearly "want[ed] to prevent
a public employee from receiving benefits from two sources
for the same problem." By order dated November 13, 2013,
the WCC found that the Employer and Insurer were entitled to
an offset under LE § 9-610.
order, the WCC stated that Mr. Reger had been paid for three
previous periods for which he had been granted temporary
total disability benefits by the Commission-from July 16,
2008 to September 9, 2009 (granted by order of the WCC
after Mr. Reger's first successful petition for judicial
review to the circuit court), from September 25, 2010 to
January 14, 2011 (granted by order of the WCC on an interim
basis following Mr. Reger's second claim for additional
workers' compensation benefits until the WCC had the
opportunity to review an independent neurosurgical evaluation
and assessment), and from March 5, 2011 to July 28, 2013
(apparently granted by order of the WCC sometime
after Mr. Reger's second successful petition for judicial
review to the circuit court). The Commission's order
stated that the sum of Mr. Reger's temporary total
disability benefits paid during all three periods was $91,
Commission found that during all three periods in which Mr.
Reger received temporary total disability benefits, he also
received ordinary disability retirement benefits. And, the
Commission found that the sum of the ordinary disability
retirement benefits paid to Mr. Reger during those three
periods was $62, 808.68. Therefore, the Commission found that
the Employer and Insurer were "entitled to a credit of
$62, 808.68 against future awards of indemnity" assessed
against them by the WCC in favor of Mr. Reger.
Commission also found that Mr. Reger was entitled to receive
temporary total disability benefits from January 15, 2011 to
March 4, 2011 and July 29, 2013 to November 18,
2013. When adding the new periods of temporary
total disability to the extant periods, Mr. Reger ultimately
received temporary total disability for two periods: from
July 16, 2009 to September 9, 2009, and from September 25,
2010 to November 8, 2013. To reflect the newly added periods
of Mr. Reger's temporary total disability, the Commission
reduced the Employer and Insurer's $62, 808.50 credit by
$8322.28, leaving a credit balance of $54, 486.50.
Consequently, until the remaining credit balance was
exhausted, the Commission determined that Mr. Reger was not
entitled to additional workers' compensation benefits.
to Circuit Court from Benefit Offset Ruling
Reger petitioned for judicial review of the WCC's
decision on November 22, 2013 pursuant to LE § 9-737,
and requested a jury trial pursuant to LE § 9-745(d)
("On a motion of any party filed with the clerk of the
court in accordance with the practice in civil cases, the
court shall submit to a jury any question of fact involved in
the case"). Both parties filed motions for summary
judgment and, on September 24, 2014, the circuit court held a
hearing on the cross-motions for summary judgment.
summary judgment hearing, Mr. Reger's counsel argued that
the ordinary disability benefits that Mr. Reger received were
awarded for a permanent partial disability, and thus were
dissimilar as a matter of law to his temporary and total
disability benefits awarded through the WCC. When questioned
by the circuit court judge as to why he likened ordinary
disability benefits to permanent partial disability, Mr.
Reger's counsel stated that they were equivalent
"because Mr. Reger is not precluded from returning to
work [in a light-duty job] by receipt of ordinary disability
[benefits], whereas [if he receives] accidental disability
[benefits], he may not do any work of any kind."
Reger's counsel also reiterated the argument made before
the WCC that Mr. Reger's ordinary disability benefits
were "based solely on his [pre-existing] spondylotic
spinal changes, which is why the [State Retirement Agency]
gave him ordinary disability, not accidental
disability." The circuit court judge questioned him as
to that claim,
CIRCUIT COURT JUDGE: . . . [I]n this case, you have the
[S]tate [R]etirement [A]gency saying the board of trustees
accepted the medical board's certification that [Mr.
Reger was] entitled to an ordinary disability due to cervical
spondylosis and stenosis lumbar spondylosis.
MR. REGER'S COUNSEL: Right.
CIRCUIT COURT JUDGE: Cervical and lumbar.
MR. REGER'S COUNSEL: Yes. Back and neck.
CIRCUIT COURT JUDGE: Same reports were provided, you know, I
think Dr. Larkin said there was some preexisting. There's
also exacerbation that's also related to Workers
[Compensation]. Same reports are submitted to the [S]tate
[R]etirement [A]gency. Same reports are submitted to the
[Workers' Compensation Committee, ] right?
MR. REGER'S COUNSEL: True.
response to Mr. Reger's arguments, counsel for the
Employer and Insurer contended that Mr. Reger's November
12, 2007 work accident was the basis for his request for
workers' compensation benefits as wells as his request
for disability retirement benefits. And, counsel asserted
that "the same physical incapacity" arising from
the 2007 accident "formed the basis for both the
Workers['] Compensation [Comission] award and the
retirement award." Counsel noted that Mr. Reger had
testified three times during prior proceedings before the WCC
that he had never experienced physical problems with his neck
or back in performing his job duties prior to the 2007
for the Employer and Insurer disagreed with Mr. Reger's
counsel's claim that an award of ordinary disability
retirement benefits is equivalent to permanent partial
disability. He also disputed Mr. Reger's claim that the
ordinary disability retirement benefits could not be offset
as a matter of law,
It doesn't matter whether [the retirement benefit] was
accidental or ordinary. It matters whether or not the
conditions for which he was granted both benefits are the
same. And they are. He cannot say that-I was granted these
ordinary disability benefits because of spondylosis in his
back and in his neck. He didn't even know he had it. . .
. [Mr. Reger's] position that he should receive both
ordinary disability [retirement] benefits and his
Workers['] Compensation [Commission] benefits is the
exact type of [ ] double-dipping that the [l]egislature
intended to prevent when enacting [LE §] 9-610 and its
hearing the parties' respective arguments, the circuit
court judge issued his summary judgment ruling on the record,
Now in the instant case, the same medical records were used
to receive both the ordinary retirement disability payment as
well as the Workers' Compensation awards in this case.
The injury occurred November 12th, 2007. The Workers'
Compensation claim [was] first filed May 27, 2008. That
resulted in a [c]ircuit [c]ourt order where a jury reversed,
as I recall, the Commission's order. It said the
[proposed] back surgery was causally related to the November
12th, 2007 accident.
And then September 15th, 2009, the state retirement agency
accepted [Mr. Reger's] claim for ordinary disability
retirement benefits based both on lumbar and cervical
problems specifically due to cervical spondylosis and
stenosis, lumbar spondylosis. And that's in the letter
[from Dr. Larkin] that was attached to the papers. And,
again, it's the same medical records for both claims.
. . .
So [ ] in using the Reynolds [v. Board of Education of
Prince George's County, 127 Md.App. 648 (1999)]
language, the ordinary [disability] retirement benefit in
this case that was accepted by [Mr. Reger] is tantamount to a
wage loss benefit for his position as a custodian. And it is
analogous to the temporary total disability Workers'
Compensation benefit, which is also a wage loss from his
Hence, as a matter of law in this case, I find that there is
no [ ] genuine dispute as to any material facts. As a matter
of law in this case, the benefits are indeed within the
statute similar and therefore the statutory offset applies.
that same day, the circuit court entered a written order
granting summary judgment in favor of the Employer and
Insurer. On October 17, 2014, Mr. Reger filed a
notice of appeal to the Court of Special Appeals.
to the Court of Special Appeals
August 5, 2016, the Court of Special Appeals issued an
unreported opinion that affirmed the circuit court's
grant of summary judgment in favor of the Employer and
Insurer. Reger v. Washington Cty. Bd. of Educ. et
al., No. 1937 Sept. Term 2014, 2016 WL 4173032 (Md. Ct.
Spec. App. 2016). The Court of Special Appeals stated that
the circuit court "focused on the correct legal question
and correctly concluded that both sets of benefits were
awarded to compensate for wages lost." Id. at
*10. The intermediate appellate court agreed with the circuit
court that "the ordinary [disability] retirement benefit
in this case that was accepted by [Mr. Reger] is tantamount
to a wage loss benefit for his position as a custodian,
" that was "analogous to the temporary total
disability Workers' Compensation benefit, which is also a
wage loss from his custodial position." Id. The
Court of Special Appeals also noted that the circuit court
had found that "Mr. Reger submitted both of his claims
based on the same medical condition and physical incapacity,
and submitted the same evidence to both the State Retirement
Agency and the WCC." Id. The Court of ...