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Reger v. Washington County Board of Education

Court of Appeals of Maryland

August 4, 2017

CHARLES C. REGER
v.
WASHINGTON COUNTY BOARD OF EDUCATION ET AL.

          Argued: March 3, 2017

         Circuit Court for Washington County Case No.: 21-C-13-049084

          Barbera, C.J. Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

          OPINION

          GETTY, J.

         On 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 ("MSRPS").[1]

         Employer 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.[2] 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.

         Mr. 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.

         The 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 same injury.

         I. BACKGROUND

         The Work Accident

         For 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 of 2008.

         The Initial Medical Treatment

         On 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)."[3] 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)"[4] was added. Dr. Larkin saw Mr. Reger for additional follow-up visits on June 4, July 2, and September 10, 2008.

         The Workers' Compensation Claim

         Following 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."

         On 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 "lumbar[5]surgery, " 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 working.

         In an 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.

         The WCC 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.

         The WCC denied Mr. Reger's request for a rehearing.

         Thereafter, 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[.]

         The Application for Disability Retirement Benefits

         While 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."

         As part 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, "[6] 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.

         On 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 duties.
However, the Medical Board denied accidental disability since the evidence submitted concerning the accident did not prove that this event caused the permanent disability.

         On 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 allowance.
2. Accept an ordinary disability retirement allowance and pursue your claim for an accidental disability retirement allowance.
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.

         On 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.

         Lower Back Surgery

         On 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.

         Subsequent WCC Proceedings

         After Mr. Reger's surgery, a follow-up independent medical examination ("IME")-was conducted by orthopedic surgeon Robert A. Smith, M.D.[7] 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.

         Thereafter, 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 work.

         The 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.

         In an 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."[8] 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 ground.
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[9] 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.

         After reviewing the neurosurgical report, the WCC denied coverage for Mr. Reger's cervical surgery on or about November 11, 2011.

         Mr. 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.[10]

         Request for Benefit Offset

         On 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.

         In that 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[11] (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[12] 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, 125.86.

         The 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.

         The 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.[13] 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.

         Appeal to Circuit Court from Benefit Offset Ruling

         Mr. Reger petitioned for judicial review of the WCC's decision on November 22, 2013 pursuant to LE § 9-737, [14] 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.

         At the 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."

         Mr. 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.

         In 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 accident.

         Counsel 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 predecessor [statutes].

         After hearing the parties' respective arguments, the circuit court judge issued his summary judgment ruling on the record, stating,

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 custodial position.
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.

         Later that same day, the circuit court entered a written order granting summary judgment in favor of the Employer and Insurer.[15] On October 17, 2014, Mr. Reger filed a notice of appeal to the Court of Special Appeals.

         Appeal to the Court of Special Appeals

         On 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 ...


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