Reger v. Washington County Board of Education , 455 Md. 68 ( 2017 )

Charles C. Reger v. Washington County Board of Education et al., No. 68, September
Term 2016. Opinion by Getty, J.
WORKERS’ COMPENSATION ACT — MD. CODE LAB. & EMPL. ART. § 9-610
(1991, 2008 REPL. VOL.) — OFFSET FOR PAYMENT OF BENEFITS THAT ARE
“SIMILAR BENEFITS” TO WORKERS’ COMPENSATION BENEFITS
The Court of Appeals held that the legislative intent behind the statutory offset in Md.
Code, Labor & Employment Article § 9-610 (1991, 2008 Repl. Vol.) is to prevent
employees of a Maryland governmental unit or quasi-public corporation who are covered
by both a pension plan and workers’ compensation from receiving a double recovery for
the same injury. The Court of Appeals further held that language in Md. Code, Labor &
Employment Article § 9-610 (1991, 2008 Repl. Vol.) stating that “payment of the benefit
by the employer satisfies, to the extent of the payment, the liability of the employer . . . for
payment of similar benefits under this title,” reflected a legislative intent that the statutory
offset apply only to “comparable” benefits, which are “benefits accruing by reason of the
same injury.” Newman v. Subsequent Injury Fund, 311 Md. 721, 727 (1988). The Court
of Appeals clarified that a benefit that compensates an employee for wage loss is not
necessarily a “similar benefit” subject to the statutory offset; the offset would not apply if
a wage loss benefit was not awarded for the same injury as the workers’ compensation
benefit.
WORKERS’ COMPENSATION ACT — MD. CODE LAB. & EMPL. ART. § 9-610
(1991, 2008 REPL. VOL.) — OFFSET FOR PAYMENT OF BENEFITS THAT ARE
“SIMILAR BENEFITS” TO WORKERS’ COMPENSATION BENEFITS —
APPLICATION TO ORDINARY DISABILITY RETIREMENT BENEFITS
The Court of Appeals held that, as a matter of law, ordinary disability retirement benefits
are “similar benefits” to workers’ compensation benefits, and the statutory offset in Md.
Code, Labor & Employment Article § 9-610 (1991, 2008 Repl. Vol.) applies, when the
record reflects that the cause of the incapacity for which ordinary disability retirement
benefits were awarded was the same workplace accidental injury or occupational disease
that was the basis for the workers’ compensation benefits.
WORKERS’ COMPENSATION ACT — MD. CODE LAB. & EMPL. ART. § 9-610
(1991, 2008 REPL. VOL.) — OFFSET FOR PAYMENT OF BENEFITS THAT ARE
“SIMILAR BENEFITS” TO WORKERS’ COMPENSATION BENEFITS —
APPLICATION TO ORDINARY DISABILITY RETIREMENT BENEFITS —
ORDINARY DISABILITY RETIREMENT BENEFITS AWARDED ON THE
BASIS OF A PREEXISTING MEDICAL CONDITION
In the instant case, the Maryland State Retirement and Pension System arguably found that
petitioner’s back and neck injuries were caused by his preexisting degenerative back
problems, whereas his temporary total disability benefits from the Workers’ Compensation
Commission were clearly awarded for a workplace accidental injury. However, the Court
of Appeals noted that the two agencies apply different legal standards to determine whether
a beneficiary is entitled to a disability benefit. Therefore, the Court of Appeals concluded
that when a disability claimant suffers an injury involving a preexisting condition that is
triggered or exacerbated by a work accident, the two agencies may award benefits for the
same injury but find different causes for that injury. Consequently, the Court of Appeals
held that in deciding whether a claimant’s ordinary disability retirement benefits were
awarded on the basis of the same injury for which he also received workers’ compensation
benefits, the Workers’ Compensation Commission is not bound to prior agency findings as
to causation. Instead, the Workers’ Compensation Commission may consider any relevant
evidence or argument submitted as to the basis for each benefit, which may include: letters
or orders granting a benefit, information stated in a claimant’s application for benefits, or
evidence submitted to the agency, such as medical records or witness testimony.
Applying that standard to the evidence in the record, the Court of Appeals concluded that
petitioner was paid ordinary disability retirement benefits and temporary total disability
workers’ compensation benefits on the basis of the same back and neck injuries. Therefore,
the Court of Appeals held that the Workers’ Compensation Commission’s finding that the
statutory offset in Md. Code, Labor & Employment Article § 9-610 (1991, 2008 Repl. Vol.)
applied was correct, and that respondents are entitled to offset petitioner’s ordinary
disability retirement benefits against his temporary total disability benefits.
Circuit Court for Washington County
Case No.: 21-C-13-049084
Argued: March 3, 2017
IN THE COURT OF APPEALS
OF MARYLAND
No. 68
September Term, 2016
CHARLES C. REGER
v.
WASHINGTON COUNTY BOARD OF
EDUCATION ET AL.
Barbera, C.J.
Greene
Adkins
McDonald
Watts
Hotten
Getty
JJ.
Opinion by Getty, J.
Filed: August 4, 2017
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,
1
See State Retirement & Pension System, Maryland Manual On-Line
http://msa.maryland.gov/msa/mdmanual/25ind/html/63retir.html [https://perma.cc/K7S3-
V3YR].
2
LE § 9-610(a) provides,
(a)(1) Except for benefits subject to an offset under § 29-118 of the
State Personnel and Pensions Article, if a statute, charter, ordinance,
resolution, regulation, or policy, regardless of whether part of a pension
system, provides a benefit to a covered employee of a governmental unit or
a quasi-public corporation that is subject to this title under § 9-201(2) of this
title or, in case of death, to the dependents of the covered employee, payment
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.
of the benefit by the employer satisfies, to the extent of the payment, the
liability of the employer and the Subsequent Injury Fund for payment of
similar benefits under this title.
2
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.
3
Spondylolisthesis is a type of back injury involving the “forward movement of the
body of one of the lumbar vertebrae on the vertebra below it, or on the sacrum.”
Steadman’s Medical Dictionary 1813 (Tiffany Piper, et al., eds., 28th ed. 2006). The
International Classification of Diseases, 9th Revision, Clinical Modification (“ICD-9-
CM”) was the official system of assigning codes to medical diagnoses and procedures for
billing purposes in the United States in use until October 15, 2015. International
Classification of Diseases, Ninth Revision, Clinical Modification (ICD-9-CM), National
Center for Health Statistics, Centers for Disease Control & Prevention,
https://www.cdc.gov/nchs/icd/icd9cm.htm [https://perma.cc/4UVJ-J49V]. Under the
version of ICD-9-CM in effect in 2008, diagnosis code 738.4 corresponds to “Acquired
Spondylolisthesis.” 2008 ICD-9-CM Diagnosis Code 738.4, Acquired Spondylolisthesis,
http://www.icd9data.com/2008/Volume1/710-739/730-739/738/738.4.htm
3
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 “lumbar5
surgery,” which would involve a “L5-S1 decompression with fusion and stabilization.” On
[https://perma.cc/TZ8U-RU3Z]. However, the code may also be applied to degenerative
spondylolisthesis. Id.
4
“Stenosis” is defined as a “stricture” or “narrowing” of a body part, and “cervical”
is defined as “relating to a neck.” Steadman’s Medical Dictionary 351, 1832 (Tiffany
Piper, et al., eds., 28th ed. 2006). Under the version of ICD-9-CM in effect in 2008,
diagnosis code 723.0 corresponds to “Spinal Stenosis in the Cervical Region.” 2008 ICD-
9-CM Diagnosis Code 723.0, Spinal Stenosis in Cervical Region,
http://www.icd9data.com/2008/Volume1/710-739/720-724/723/723.0.htm
[https://perma.cc/UP4S-PH2V].
5
“Lumbar” can be defined as “relating to” the part of the lower back or sides
“between the ribs and the pelvis.” Steadman’s Medical Dictionary 1121 (Tiffany Piper, et
al., eds., 28th ed. 2006).
4
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.
5
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]
6
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
6
“Lumbosacral spondylosis” can be defined as “stiffening and fixation of a joint”
or “any lesion of the spine of a degenerative nature” affecting the “lumbar vertebrae [or]
the sacrum.” Steadman’s Medical Dictionary 95, 1121, 1813 (Tiffany Piper, et al., eds.,
28th ed. 2006).
7
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.
8
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.
7
A party in a workers’ compensation case “may schedule a medical examination of
the claimant with a physician, psychologist, or psychiatrist chosen by the party,” after
providing reasonable notice in writing, in which case the claimant “shall appear for a
scheduled medical examination.” Md. Code Regs. (“COMAR”) 14.09.03.08(B).
9
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 . . .
8
The WCC may order that a claimant be examined, at the commission’s expense
“by the Commission's medical examiner or by some other physician, psychologist, or
psychiatrist selected by the Commission.” COMAR 14.09.03.08(A).
10
Mr. Reger also has a history of numbness, tingling[,] and pain in [his
left arm] . . . [He] was found to have compressive neuropathy9 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
9
“Neuropathy” can include “any disorder affecting any segment of the nervous
system.” Steadman’s Medical Dictionary 1313 (Tiffany Piper, et al., eds., 28th ed. 2006).
10
It appears that Mr. Reger’s second petition for judicial review was limited solely
to the issue of whether his second proposed surgery was causally related to his November
12, 2007 accidental injury.
11
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
12
Commission—from July 16, 2008 to September 9, 200911 (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 (apparently12 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.
11
The WCC’s order stated that Mr. Reger had been paid temporary total disability
benefits from July 16, 2009 to August 30, 2009. However, the order from the Washington
County circuit court in his first petition for judicial review had clearly stated that the WCC
was directed to enter an order for temporary total disability benefits from July 16, 2008 to
September 9, 2009. Thus, we assume that the difference in dates in the order was a clerical
error by the Commission.
12
An order granting Mr. Reger benefits from March 5, 2011 to July 28, 2013 is not
contained in the record on appeal. However, the Respondents have not contested the
WCC’s statement that Mr. Reger was paid benefits for that period.
13
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
13
The basis for the WCC’s grant of these additional temporary total disability
benefits was not stated in the order.
14
LE § 9-737 provides,
An employer, covered employee, dependent of a covered employee, or any
other interested person aggrieved by a decision of the Commission . . . may
appeal from the decision of the Commission provided the appeal is filed
within 30 days after the date of the mailing of the Commission's order by:
(1) filing a petition for judicial review in accordance with Title 7 of the
Maryland Rules;
(2) attaching to or including in the petition a certificate of service verifying
that on the date of the filing a copy of the petition has been sent by first-
class mail to the Commission and to each other party of record; and
14
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.
(3) on the date of the filing, serving copies of the petition by first-class mail
on the Commission and each other party of record.
15
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 pre-
existing. 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
16
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.
17
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 Special Appeals concluded that “[w]here, as here, both benefits
serve as a wage loss benefit tied to the same underlying injury and incapacity, the offset
15
On September 30, 2014, the circuit court entered an amended order to correct a
typographical error in the original order.
18
provision in LE § 9-610 must be applied to ensure only a single recovery for the single
injury.” Id.
Mr. Reger thereafter petitioned this court for a writ of certiorari, which we granted
on November 22, 2016. 450 Md. 421 (2016). After granting certiorari, we also granted a
motion of county officials representing various local jurisdictions and boards in Maryland
to file an amici curiae brief in this matter.16 See Maryland Rule 8-511(a).
Mr. Reger presents a single issue for our review, which we have rephrased:
Did the Workers’ Compensation Commission err in finding that the ordinary disability
benefits granted to Mr. Reger by the State Retirement Agency are legally similar to the
temporary total disability benefits granted to Mr. Reger by the Commission, such that
the statutory offset under Maryland Code, Labor & Employment Article § 9-610
applies?17
That issue can be broken down into three parts:
A. What is the legislative intent behind the statutory offset provision now contained in
LE § 9-610 and, in particular, the intent behind the “similar benefits” language in
the provision?
B. As a matter of law, can ordinary disability benefits be “similar benefits” to workers’
compensation benefits?
16
The amici curiae brief was submitted by: the county attorneys or counsel
representing Montgomery County, Anne Arundel County, Baltimore County, Prince
George’s County, Harford County, and Saint Mary’s County; the legal and policy counsel
for the Maryland Association of Counties; and, counsel for the Board of Education of
Prince George’s County.
17
In his brief to this Court, Mr. Reger presented the following question for our
review:
When a state employee who is disabled by an on the job injury is awarded
ordinary retirement disability benefits for a different injury, should the
[S]tate be excused from paying workers’ compensation benefits for the on
the job injury?
19
C. If the answer to question B is “yes,” are the ordinary disability benefits paid to Mr.
Reger by the MSRPS “similar benefits” to the temporary total disability benefits
paid to Mr. Reger by the WCC?
After first setting forth the applicable standard of review and summarizing the
contentions of the parties, we shall discuss each of these questions in sequence. See infra,
Part III.(A)-(C).
II.
STANDARD OF REVIEW
Section 9-745 of the Labor and Employment Article governs appeals of decisions
by the Workers’ Compensation Commission. That statute sets out two paths by which an
aggrieved claimant may challenge a decision of the Commission:
A party dissatisfied by the action of the Commission may seek review in a
circuit court by either proceeding on the record made before the Commission
(much like judicial review of the final action of most state administrative
agencies) or receive a new evidentiary hearing and decision before a jury
(much like an original civil complaint brought in a circuit court).
Balt. Cty. v. Kelly, 391 Md. 64, 67-68 (2006). Here, Mr. Reger requested a jury trial before
the circuit court, placing his petition to the circuit court for judicial review of the decision
of the WCC on the second path of LE § 9-745. Had his case reached a jury, he would
therefore have received an “‘essentially’ de novo trial.”18 Id. at 74 (quoting Richardson v.
Home Mut. Life Ins. Co., 235 Md. 252, 255 (1964)).
However, prior to the case being submitted to a jury, both parties agreed that there
was no dispute of material fact and that the case could be appropriately resolved through
18
In Baltimore County v. Kelly, 391 Md. at 74-77, we discussed the “essentially de
novo trial” standard and its implications for parties’ burden of proof before a circuit court
in an appeal from the Workers’ Compensation Commission.
20
summary judgment. And, after reviewing the parties’ cross-motions for summary
judgment and holding a hearing as to those motions, the circuit court granted summary
judgment in favor of the Employer and Insurer as to the benefits offset issue, ruling as a
matter of law that Mr. Reger’s ordinary disability benefits and temporary total disability
benefits were “similar” and that, consequently, “the statutory offset [in LE § 9-610]
applies.” The circuit court’s holding was then affirmed by the Court of Special Appeals.
Reger, No. 1937 Sept. Term 2014, 2016 WL 4173032 at *10.
“In an appeal from judicial review of an agency action, we review the agency’s
decision directly, not the decision of the Circuit Court or the Court of Special Appeals.”
Hollingsworth v. Severstal Sparrows Point, LLC, 448 Md. 648, 654 (2016). Although
generally, “‘the decision of the Commission is presumed to be prima facie correct,’ this
presumption does not ‘extend to questions of law, which we review independently.’” Id.
at 654-55 (quoting Elms v. Renewal by Andersen, 439 Md. 381, 391 (2014) (quoting LE §
9-745(b) and Montgomery Cnty. v. Deibler, 423 Md. 54, 60 (2011))). See also Johnson v.
Mayor & City Council of Balt., 430 Md. 368, 376-77 (2013) (holding when an appellate
court reviews a circuit court’s grant of summary judgment as to an appeal from a decision
of the Workers’ Compensation Commission where “[t]he parties agree on the facts,” and
the sole legal issue on appeal is the interpretation of a statute, the appropriate standard of
review is de novo).
In this case, the WCC’s decision that is the sole issue on appeal involves the
meaning and application of a statute, which is a question of law subject to de novo review.
In interpreting a statute, we adhere to this Court’s well-settled principles of statutory
21
construction. The Court defers to “the policy decisions enacted into law by the General
Assembly.” Phillips v. State, 451 Md. 180, 196 (2017). “We assume that the legislature’s
intent is expressed in the statutory language and thus our statutory interpretation focuses
primarily on the language of the statute to determine the purpose and intent of the General
Assembly.” Id.
We begin our analysis by first looking to the normal, plain meaning of the
language of the statute, reading the statute as a whole to ensure that no word,
clause, sentence or phrase is rendered surplusage, superfluous, meaningless
or nugatory. If the language of the statute is clear and unambiguous, we need
not look beyond the statute’s provisions and our analysis ends. Occasionally
we see fit to examine extrinsic sources of legislative intent merely as a check
of our reading of a statute’s plain language. In such instances, we may find
useful the context of a statute, the overall statutory scheme, and archival
legislative history of relevant enactments.
Id. at 196-97 (quoting Douglas v. State, 423 Md. 156, 178 (2011) (quoting Evans v. State,
420 Md. 391, 400, 23 A.3d 223 (2011))).
When this Court interprets an ambiguous or unclear statutory provision that is part
of the Workers’ Compensation Act, “additional principles of interpretation enter the
equation.” Hollingsworth, 448 Md. at 655 (quoting Montgomery Cty. v. Deibler, 423 Md.
54, 61 (2011)). We must interpret the provision in light of the purpose of the Act, which
we have stated is “to protect workers and their families from hardships inflicted by work-
related injuries by providing workers with compensation for loss of earning capacity
resulting from accidental injury arising out of and in the course of employment.” Id.
(quoting Elms v. Renewal by Andersen, 439 Md. 381, 399 (2014)). Thus, because the Act
is a “remedial statute,” to the extent that the plain language of the Act is ambiguous or
unclear, it must be “construed as liberally in favor of injured employees as its provisions
22
will permit in order to effectuate its benevolent purposes.” Id. (quoting Elms, 439 Md. at
399). However, we may not “stifle the plain meaning of the Act, or exceed its purposes,
so that the injured worker may prevail.” Id. (quoting Elms, 439 Md. at 399). Similarly,
“when the language is plain” we cannot “create an ambiguity that does not exist in order
to interpret the Act more favorably to the claimant.” Id. at 655-56.
III.
DISCUSSION
Maryland Code, Labor & Employment Article § 9-610 (“LE § 9-610”) provides, in
pertinent part,
(a)(1) Except for benefits subject to an offset under § 29-118 of the State
Personnel and Pensions Article, if a statute, charter, ordinance, resolution,
regulation, or policy, regardless of whether part of a pension system,
provides a benefit to a covered employee of a governmental unit or a quasi-
public corporation that is subject to this title under § 9-201(2) of this title or,
in case of death, to the dependents of the covered employee, payment of the
benefit by the employer satisfies, to the extent of the payment, the
liability of the employer and the Subsequent Injury Fund for payment
of similar benefits under this title.
(2) If a benefit paid under paragraph (1) of this subsection is less than the
benefits provided under this title, the employer, the Subsequent Injury Fund,
or both shall provide an additional benefit that equals the difference between
the benefit paid under paragraph (1) of this subsection and the benefits
provided under this title.
(3) The computation of an additional benefit payable under paragraph (2) of
this section shall be done at the time of the initial award and may not include
any cost of living adjustment after the initial award.
***
(c)(1) The Commission may:
(i) determine whether any benefit provided by the employer is equal
to or greater than any benefit provided for in this title; and
23
(ii) make an award against the employer or the Subsequent Injury
Fund or both to provide an additional benefit that equals the difference
between the benefit provided by the employer and the benefits
required by this title.
(2) A claim that comes under this section is subject to the continuing powers
and jurisdiction of the Commission.
(emphasis added).
Mr. Reger contends that, as a matter of law, workers’ compensation benefits PAID
by the WCC should never be offset under LE § 9-610 by ordinary disability retirement
benefits paid by the MSRPS because, according to Mr. Reger, “the two benefits are paid
for different purposes.” Mr. Reger insists that ordinary disability benefits “do not
compensate for work-related injuries,” and therefore are not a “similar benefit” that should
be offset pursuant to LE § 9-610. Mr. Reger contrasts ordinary disability benefits with
accidental disability benefits, which the State Retirement Agency awards for accidental
workplace injuries and are thus, according to Mr. Reger, “perfectly analogous to workers’
compensation benefits.” Mr. Reger also maintains that the legislative history of LE §
9-610, in particular an amendment to the statute enacted in 1997, indicates that the General
Assembly intended the offset to apply solely to accidental disability benefits. Therefore,
he claims that the Commission, the circuit court, and the Court of Special Appeals erred in
holding that Mr. Reger’s ordinary disability benefits were “similar benefits” to his
temporary total disability benefits, and thus subject to the statutory offset.
Even if ordinary disability benefits were subject to the offset in LE § 9-610, Mr.
Reger also contends that the offset should not apply in his case. He asserts that the State
Retirement Agency awarded him ordinary disability retirement benefits “based solely on
24
[ ] preexisting degenerative back problems.” And, he further claims that the Medical Board
of the State Retirement Agency “very specifically found Mr. Reger was not disabled
because of his [accidental] injury of November 12, 2007” that was the basis for the
temporary total disability benefits he was awarded by the WCC. Because, in his view, his
ordinary disability benefits and temporary total disability benefits were granted based upon
entirely distinct and separate injuries, he contends that “they are not similar benefits within
the meaning of [LE § 9-610].”
Mr. Reger insists that the Court of Special Appeals failed to recognize that the State
Retirement Board awarded and paid him ordinary disability benefits based upon his
degenerative back injuries and instead improperly focused on the fact that he had applied
for accidental disability benefits based on the same November 12, 2007 accidental injury
that was the basis for his WCC benefits. He claims that the Court of Special Appeals has
thereby “punished him for asking for[,] but not being paid[,] accidental disability
retirement benefits by denying him his workers’ compensation benefits.”
In contrast, the Respondents maintain that cases interpreting LE § 9-610 and its
predecessor statutes have made clear that the General Assembly intended to ensure a
“single recovery for a single injury” for public employees, and to prevent double payment
from the public purse to a governmental employee who is covered by both a pension or
other benefit plan and the workers’ compensation statute. And, Respondents contend that
LE § 9-610 was not limited to offsetting only accidental disability benefits, as it is clear
from the language of the statute that “there was never any intent by the Legislature to limit
[that] offset to pension benefits, let alone one particular type of pension benefits.”
25
Respondents also offer a policy argument that construing the offset to apply solely to
accidental disability benefits would increase instances of double recovery, as employees
could easily avoid the offset by choosing to apply for ordinary disability benefits instead
of accidental disability benefits from the State Retirement Agency, while also applying for
workers’ compensation benefits from the WCC for the same injury.
Instead, Respondents assert that the only limiting language in LE § 9-610 is that the
offset only applies to “similar benefits.” Respondents claim that, in this case, the ordinary
disability benefits paid to Mr. Reger by the MSRPS are “similar benefits” to his workers’
compensation benefits and, consequently, the Commission, the circuit court, and the Court
of Special Appeals did not err in holding that the offset in LE § 9-610 applied. Respondents
note that in Newman v. Subsequent Injury Fund this Court held that service retirement
benefits awarded solely based on age and length of service had “no relation whatsoever to
[an employee’s accidental] injury and the disability resulting therefrom,” and therefore
were not “similar” to workers’ compensation benefits under the predecessor statute to LE
§ 9-610. 311 Md. 721, 724 (1988). Respondents contend that “[i]mplicit in the Newman
rationale is that when there is a relationship and both the [workers’ compensation benefit]
and the pension benefit result from or were triggered by the same injury, incapacity, or
disability, they are legally ‘similar.’” Respondents also urge us to rely upon the holding in
Reynolds v. Board of Education of Prince George’s County, where the Court of Special
Appeals upheld the application of the LE § 9-610 offset when an employee received both
ordinary disability benefits and workers’ compensation benefits based in part upon the
Court of Special Appeals’ holding that both benefits were awarded based on “a single
26
medical condition” and the “same physical incapacity” that occurred when the employee’s
preexisting asthmatic condition was triggered by her exposure to diesel fuel and fumes
while at work. 127 Md. App. 648, 655 (1999).
Respondents claim, in this case, that both sets of benefits awarded to Mr. Reger
stemmed from a disability caused by his November 12, 2007 accident which, similarly to
Reynolds, involved an “acute stimulus” or triggering event (Mr. Reger’s November 12,
2007 work accident) that exacerbated a preexisting condition (Mr. Reger’s degenerative
back disease). In support of that claim, Respondents note that Mr. Reger “never
experienced any physical limitation in the performance of his job duties prior to the
November 12, 2007 accident,” and that he submitted the same medical records and relied
upon the November 12, 2007 accident before both the WCC and the State Retirement
Board.
Finally, Respondents criticize Mr. Reger’s reliance on the Medical Board
recommendations and State Retirement Agency’s decision to award Mr. Reger ordinary
disability benefits, and to deny him accidental disability benefits. They insisted that the
Medical Board’s recommendation and State Retirement Agency’s decision do not suggest
that those benefits are not similar to Mr. Reger’s temporary total disability benefits, noting
that “[i]rrespective of the label given the disability benefit provided by the [State
Retirement Agency] . . . it is without question that the dual benefits [Mr. Reger] received
as a result of a disability triggered by the same event are subject to offset under [LE] §
9-610.”
27
The amici curiae agree with the Respondents that “the same injury can result in an
ordinary disability retirement [benefit] and a compensable workers’ compensation claim,
but may not result in an accidental disability award.” And, the amici agree with the
Respondents that, in such a case, the statutory offset in LE § 9-610 should apply. However,
the amici also urge this Court to make a somewhat broader ruling than that urged by the
Respondents. The amici claim that “[t]o ensure that a governmental employer is not
required to pay double benefits for the same injury,” this Court should hold that the offset
in LE § 9-610 applies “to ordinary disability [retirement] benefits to the same extent that it
applies to accidental disability [retirement] benefits when the reason for the disability
payment includes the same body part for which workers’ compensation benefits are
awarded.”
In order to resolve whether the WCC properly applied the statutory offset provision,
we shall first determine the legislative intent behind that provision, in particular the intent
behind the “similar benefits” language. Then, we shall determine whether, as a matter of
law, a payment by a governmental employer of ordinary disability benefits could be
deemed a “similar benefit” to a payment of temporary total disability benefits. Then, we
shall decide whether, under the circumstances of this case, Mr. Reger’s ordinary disability
benefits were a “similar benefit” to his temporary total disability benefits.
A. The Legislative Intent Behind the Statutory Offset Provision Now Contained
in LE § 9-610 and the “Similar Benefits” Language in That Provision
In Blevins v. Baltimore County, 352 Md. 620 (1999), this Court traced the legislative
history and intent behind the offset provision now contained in LE § 9-610 in detail,
28
including the legislative intent behind the “similar benefits” language. In that case, we
noted that “[l]ocal government employees have been dealt with specially since the first
enactment of the workers’ compensation law in 1914.” Id. at 635. The original Workers’
Compensation Act, 1914 Md. Laws, ch. 800, “required employers who employed workmen
in ‘extra-hazardous employments’ to provide the compensation as provided for by the Act”
for injuries or deaths arising in the scope of employment. Id. And, “[s]ection 34 of the
Act provided that, whenever the State or a county or municipality engaged in extra-
hazardous work in which workmen were employed for wages, the Act was applicable
‘thereto.’” Id. at 635-36.
However, the Act also stated that “[w]henever, and so long as, by State law, City
Charter, or Municipal Ordinance, a provision equal or better than that given under the terms
of this Act is made for municipal employees injured in the course of employment such
employee shall not be entitled to the benefits of this Act.” Acts 1914, ch. 800, s. 34. In
Nooe v. City of Baltimore, cited approvingly by this Court in Blevins, Chief Judge Orth of
the Court of Special Appeals characterized Section 34 as reflecting that, from the time of
the adoption of the Act, it has been “the policy of the General Assembly, as expressed in
its legislative enactments, that an employee of the government shall not receive workmen’s
compensation benefits in addition to other benefits furnished by the employer accruing by
reason of an accidental injury arising out of and in the course of employment.” 28 Md.
App. 348, 349 (1975), cert. denied, 276 Md. 748 (1976). Judge Orth concluded that the
General Assembly’s concern as to “governmental authorities being obliged to pay benefits
29
to an employee twice as a result of the same injury,” was also expressed in the preamble to
the original 1914 Act, which stated in pertinent part,
Whereas, in addition thereto, the State and its taxpayers are subjected to a
heavy burden in providing care and support for such injured workmen and
their dependents, which burden should, in so far as may be consistent with
the rights and obligations of the people of the State, be more fairly distributed
as in this Act provided; . . .
Id. at 352 (quoting Acts 1914, ch. 800).
The original statutory provision expressed in Section 34 of the 1914 Act, although
“expanded from time to time to add new categories of governmental, or quasi-
governmental, employees,” remained in force until 1970, “when, as part of a bill deleting
the requirement that employment be ‘extra-hazardous’ to be covered, the entire provision
dealing with non-military State and local government personnel was repealed.” Blevins,
352 Md. at 636. See 1970 Md. Laws, ch. 741. Although the reason for the appeal was “not
entirely clear[,]” see Blevins, 352 Md. at 636, it was apparently in reaction to this Court’s
ruling in Montgomery County v. Kaponin, 237 Md. 112 (1964). In Blevins, we summarized
the holding of Kaponin,
Kaponin involved a county police officer who, as the result of a job-related
injury, suffered a 75% permanent partial disability. He retired and, pursuant
to the county pension plan, began receiving disability benefits of
$260/month. Thereafter, the officer filed for workers’ compensation benefits
and received an award of $25/week, which, on a dollar-for-dollar basis, was
less than the retirement benefit. The county sought judicial review, arguing
that, by virtue of [Acts 1914, ch. 800, s. 34, by that time recodified as Article
101, § 33 of the Chapter Laws of Maryland], it was not liable. This Court
viewed § 33 not as an offset provision, however, but as a qualification statute
designed to give municipal employers an alternative to providing workmen’s
compensation by enacting legislation affording to their employees benefits
equal to or greater than those provided by the Workmen’s Compensation
Law. The comparison, we said, was not to be on a case-by-case, dollar-for-
30
dollar, basis, but rather on a law-by-law basis. The county pension plan at
issue, while affording Officer Kaponin a higher weekly benefit, did not
provide medical benefits or partial or permanent partial benefits, which were
afforded under the workers’ compensation law. Accordingly, we viewed the
provisions of the county pension law as not being equal to or greater than the
provisions of the Workers’ Compensation Act and held that the officer could
collect under both laws.
Blevins, 352 Md. at 636 to 637 (internal citations and quotation marks omitted). We noted
in Blevins that the significance of the Kaponin holding was that it largely circumvented the
General Assembly’s intent that employees injured in a work accident who were provided
with benefits from municipal employers that were more generous than those provided by
the Act should not have a double recovery, because “[i]t is questionable whether many, or
any, local pension plans could satisfy the comparability standard imposed by Kaponin;
pension plans—even disability retirement plans—do not ordinarily provide medical
benefits.” Id. at 637. See also Nooe, 28 Md. App. at 352 (noting that “the manifest purpose
of [Acts 1914, ch. 800, s. 34, subsequently recodified at Article 101, § 33 of the Chapter
Laws of Maryland] was to a large extent circumvented by the Kaponin holding”).
However, “[w]hatever may have been the legislative purpose” of the repeal of the
provision in 1970, a successor provision was enacted by the General Assembly in 1971 as
an emergency measure. Blevins, 352 Md. at 637. See 1971 Md. Laws, ch. 785. That
provision, subsequently codified at Section 33(c) of Article 101 of the Maryland Code
(1957, 1979 Repl. Vol.) provided, in pertinent part,
(c) Whenever by statute, charter, ordinances, resolution, regulation or policy
adopted thereunder, whether as part of a pension system or otherwise, any
benefit or benefits are furnished employees of (public) employers . . ., the
benefit or benefits when furnished by the employer shall satisfy and
discharge pro tanto or in full . . ., the liability or obligation of the employer .
31
. . for any benefit under this article. If any benefits so furnished are less than
those provided for in this article the employer . . . shall furnish the additional
benefit as will make up the difference between the benefit furnished and the
similar benefit required in this article.
(d) The Commission may determine whether any benefit provided by the
employer is equal to or better than any benefit provided for in this article . . .
(emphasis added). As Judge Orth noted in Nooe, that successor provision was plainly a
dollar-for-dollar offset provision, providing for “offsets of workmen’s compensation
benefits against the benefits otherwise furnished by a [public] employer,” as opposed to a
“a qualification statute such as the Court of Appeals found the former statute to be” in
Kaponin. 28 Md. App. at 352. And, for the first time, the General Assembly included a
comparison between the employer-provided benefit and a “similar benefit” required under
the Workers’ Compensation Act.
We noted in Blevins that it was “not entirely clear from the face of the 1971
enactment what the Legislature had in mind when it inserted the limiting word ‘similar’
only near the end of [§ 33(c)], in the provision dealing with the situation where the
alternative benefit [provided by the governmental employer] is less than the compensation
benefit [provided under the Worker’s Compensation Act], and omitted it elsewhere—in
the general set-off provision and in the provision authorizing the Commission to determine
whether the alternative benefit is, in fact, equal to or better than the compensation benefit.”
352 Md. at 638. However, we also noted that additional legislative history suggests that
the inclusion of the “similar benefits” language was a purposeful act by the General
Assembly. Specifically, in 1976, the General Assembly “rewrote the part of § 33 dealing
with military personnel, adding a provision similar to the 1971 law relating to local
32
governmental employees—that, if any benefits provided by the Federal Government were
less than those provided under the workers’ compensation law, the State should furnish
‘the additional benefit in order to make up the difference between the benefit provided by
the Federal Government and the similar benefit required by this article.” Id. (quoting 1976
Md. Laws, ch. 762) (emphasis added).
The first cases that arose from the 1971 law “dealt with situations in which the
alternative benefit that the [governmental employer] sought to set off was, in fact, a
disability retirement benefit” that was awarded for the same injury for which the worker
also sought worker’s compensation benefits and, thus, “the issue of ‘similarity’ did not
arise.” Id. In Nooe, the Court of Special Appeals held that when a Baltimore City police
officer received a special disability benefit under a Baltimore City retirement program for
an accidental injury sustained in the course of his employment that was more than the
worker’s compensation benefits to which he was entitled, “the liability and obligation of
[Baltimore City] for the workmen’s compensation benefits were satisfied and discharged”
by the payment of the special disability benefit. 28 Md. App. 353-56.
In Mazor v. State Department of Correction, a prison guard suffered severe injuries
after being stabbed and beaten by an inmate, resulting in his being unable to return to work.
279 Md. 355, 357 (1977). The prison system determined the guard was totally and
permanently incapacitated and awarded him an accidental disability pension by the State
equivalent to $5380 per year. Id. Subsequently, he filed a claim for workers’ compensation
benefits, was found by the Commission to have sustained a permanent 60% disability as a
result of the incident, and was awarded compensation benefits amounting to $3380 per
33
year. Id. at 357-58. On appeal from the Commission’s order, a circuit court concluded
that the Department of Corrections could set off the disability pension benefit under § 33(c)
and, because the disability pension benefit was greater than the workers’ compensation
benefit, that it was discharged from liability for the workers’ compensation benefit.
On appeal, we affirmed the circuit court’s ruling. We concluded that the statute
provided for the offset of benefits by both employers and insurers standing in the position
of the employer, and that the offset could be applied for injuries that did not cause the
employee’s death. Id. at 361-63. In reaching those conclusions, we considered both the
workers’ compensation benefits and pension disability benefits awarded to the prison guard
as “facet[s] of an overall system of wage-loss protection,” which had as its “underlying
principle” the goal of restoring “to the worker a portion of wages lost by physical disability,
unemployment, or old age.” Id. at 363. We concluded that “although two or more causes
of wage loss may coincide, the benefits need not cumulate, for the worker experiences but
one wage loss.” Id. (citing 4 Arthur Larson, Law of Workmen’s Compensation §§ 97.00,
97.10 (1976)). We rejected the prison guard’s constitutional challenges to the offset
provisions on similar grounds, concluding that the General Assembly could rationally have
determined that “since an employee suffers only one wage loss, he should receive the
equivalent of only one disability benefit.” Id. at 365. See also Feissner v. Prince George’s
Cty., 282 Md. 413, 421 (1978) (holding similarly).
Similarly, in Frank v. Baltimore County, we held that pension benefits received by
a disabled police officer from a contributory pension plan were “benefits provided by the
employer” within meaning of § 33(c) and that, because those benefits were equal to or
34
better than any worker’s compensation benefits to which the officer was entitled, the offset
provision applied. 284 Md. 655, 657 (1979). Although we did not rely upon the “similar
benefits” language in the statute to reach that conclusion, we stated that “[u]pon reading
section 33 the scheme that unmistakably emerges is that the General Assembly wished to
provide only a single recovery for a single injury for government employees covered by
both a pension plan and workmen’s compensation.” Id. at 659. And, we again described
the offset provision as “consistent with the generally recognized policy underlying all
wage-loss legislation” that under a “‘logical system’” an employee who experiences only
one period of wage loss “‘should receive only one wage loss benefit.’” Id. (quoting 4
Arthur Larson, The Law of Workmen’s Compensation § 97.10, at 18-9 (1979) (footnote
omitted)).
In Oros v. Mayor & City Council of Baltimore, the Court of Special Appeals
considered the cases of three Baltimore City police officers injured in the course of their
employment, who were paid full sick leave salary from the City during their absence from
work. 56 Md. App. 685, 686-87 (1984). Recognizing that the statutory offset in § 33(c)
applied to any attempt to claim worker’s compensation benefits for temporary total
disability in addition to the sick leave benefits, the officers “bowed to the inevitable” and
declined to claim their temporary total disability benefits. Id. at 687. However, when the
officers reached maximum medical recovery, they sought permanent partial disability
benefits, which the Commission granted. Id. at 687-88. The City, noting that the
compensation benefit for temporary total disability benefits was only two-thirds of the
officers’ salary, reasoned that “the one-third overage it paid built up a credit in the nature
35
of a savings account that the City could offset against its future obligation for permanent
partial disability.” Id. at 688.
The Court of Special Appeals rejected the City’s offset argument, relying upon the
“similar benefits” language in § 33(c)—apparently the first Maryland court to rely on that
language in a case involving the offset provision. The Court of Special Appeals recognized
that “the overriding theme” in prior cases where the offset had been applied “was the
determination of legislative intent of § 33(c) which would minimize the burden on the
public treasury that would result from duplicating benefits to public employees.” Id. at
689. However, the intermediate appellate court distinguished temporary total disability
benefits, which it viewed as “solely wage-loss benefits,” from permanent partial disability
benefits, which it regarded as “more in the nature of earning capacity impairment benefits.”
Id. at 690. The Court of Special Appeals noted that permanent partial disability benefits
“are based purely on the medical condition of the employee after maximum improvement
has been reached and ignore wage loss entirely,” and may be paid “not only after the
employee returns to work, but also if his wages were increased,” or even “absent [any] loss
of wages or earning capacity.” Id. The intermediate appellate court concluded that by
including the “similar benefits” language in § 33(c), the General Assembly intended to
“preclude double-dipping into the same pot of comparable benefits” and that the sick leave
benefits awarded as a wage loss benefit were not comparable to the permanent partial
disability benefits awarded to compensate for loss of earning capacity. Id. at 694.
We affirmed the result reached by the Court of Special Appeals, but on different
grounds, and without relying upon the “similar benefits” language in the statute. Mayor &
36
City Council of Baltimore v. Oros, 301 Md. 460 (1984). We held that, under the workers’
compensation law of the time, “an injured worker (or his dependents) is entitled to receive
seriatim the benefits for each of the separate disabilities as were caused by the nature and
extent of his injury,” and that a benefit awarded by a governmental employer that is
sufficient to offset one workers’ compensation benefit may not also be used to offset a
separate workers’ compensation benefit. Id. at 470.
The first case in which this Court squarely addressed the meaning and impact of the
“similar benefit” language in § 33 was Newman v. Subsequent Injury Fund, 311 Md. 721,
(1988). In that case, a county employee sustained a work-related injury, and was awarded
permanent partial disability benefits by the WCC. Id. at 723. The employee did not seek
a separate disability benefit from her employer, but retired on ordinary service retirement.
Id. The retirement benefits were less than the workers’ compensation benefits, and the
county sought to offset them pursuant to § 33(c). After the Commission denied the offset,
the county prevailed before a circuit court and the Court of Special Appeals.
This Court, however, reversed the judgment of the Court of Special Appeals. We
held that although the phrase “similar benefit” appears only in one phrase near the end of
the statute, it also “qualifies the provision at the beginning of the section as to the benefits
furnished employees by employers” because there was no “‘reasonable distinguishing
purpose to suggest that [“similar”] was not intended to be implicit in the foregoing
sentences.’” Id. at 724 (quoting Oros, 56 Md. App. at 689). We therefore concluded that
in order for the statutory offset to apply, “the two benefits received must be ‘similar.’” Id.
37
We concluded that the two benefits at issue in the case were not similar and therefore the
offset did not apply, explaining,
Newman was awarded workmen’s compensation because of the impairment
of the industrial use of her body as a result of her work-related injury. On
the other hand, it appears that she was entitled to the benefits under the
retirement plan merely because she had elected to retire after attaining a
prescribed age and 20 years service with the county. The payment of these
benefits had no relation whatsoever to her injury and the disability resulting
therefrom. Age and length of service were not a prerequisite for her
entitlement to workmen’s compensation benefits; anatomical disability was
not a prerequisite for her entitlement to the retirement benefits. In short, her
retirement payments were an age and length of service benefit; her
workmen’s compensation award was a disability benefit. The two benefits
were not similar and not comparable. Therefore, the offset provisions of §
33(c) were not applicable.
Id.
We proceeded to discuss prior cases in which this Court had addressed the offset
provision—including Mazor, Frank, and Oros—and although we noted that we had never
previously discussed the “similar benefits” language, we concluded that “the tenor of [§
33(c)] as reflected in our opinions is that the offsetting benefits be ‘similar’ ones.” Id. at
724-26. We also noted that in several previous cases concerned with § 33(c) we had looked
to 4 Arthur Larson, The Law of Workmen’s Compensation § 97.10 (1979),
Wage-loss legislation is designed to restore to the worker a portion, such as
one-half to two-thirds, of wages lost due to the three major causes of wage-
loss: physical disability, economic unemployment, and old age. The crucial
operative fact is that of wage loss; the cause of the wage loss merely dictates
the category of legislation applicable. Now if a workman undergoes a period
of wage loss due to all three conditions, it does not follow that he should
receive three sets of benefits simultaneously and thereby recover more than
his actual wage. He is experiencing only one wage loss and, in any logical
system, should receive only one wage-loss benefit.
38
Id. at 726-27 (footnote omitted). However, we concluded that the previous cases in which
§ 33 was held to apply “were all decided in the context of dual benefits accruing by reason
of the same injury, that is, two benefits being paid stemming from the same cause.” Id.
at 727 (emphasis added). We therefore determined that §33(c) “focuses only on dual
recoveries for a single on-the-job injury” and “does not encompass setoffs for every type
of wage-loss benefit available as Larson attempts to do.” Id. We further stated that “[i]t is
our statute which governs, not Larson’s generalizations.” Id.
Summarizing the broad holding of the case, we stated in Newman that the legislative
intent behind the offset provision was “to preclude double-dipping into the same pot of
comparable benefits.” Id. at 728 (quoting Oros, 56 Md. App. at 694 (emphasis added)).
But, “[t]he corollary is, that when the benefits are dissimilar, the setoff provisions of §
33(c) do not apply.” Id.
In Fikar v. Montgomery County, we held that the §33(c) statutory offset between
workers’ compensation benefits and a county-sponsored disability retirement plan applied
“when the workers’ compensation benefits are paid for vocational rehabilitation.” 333 Md.
430, 431 (1994). We stated that it was “luminously clear” that the General Assembly had
enacted the offset provision to ensure “a single recovery for a single injury for government
employees covered by both a pension plan and workmen’s compensation.” Id. at 435
(internal citations and quotation marks omitted). Applying our construction of the statute
in Newman, we noted that “[i]n order for the statutory offset of § 33(d)19 to come into play,
19
Article 101 § 33(c) of the Maryland Code (1957, 1985 Repl. Vol., 1991 Cum. Supp.),
was renumbered as § 33(d) by Ch. 559 of the Acts of 1989. Cases occurring before the
39
however, the benefits received under the pension plan and as workers’ compensation must
be ‘similar.’” Id.
We noted that the petitioner in Fikar “urge[d] us to disregard the fact that both her
vocational rehabilitation benefits and her disability retirement benefits arose out of the
same, single injury, and to focus instead on the general purpose of each of the types of
benefits.” Id. at 437. Specifically, the petitioner “assert[ed] that disability retirement
benefits are ‘lost wage’ benefits, intended to compensate a worker for her loss of earning
capacity” and that “[v]ocational rehabilitation benefits, on the other hand, are intended to
‘rehabilitate’ an injured worker and return her to the work force, according to [the
petitioner].” Id. We agreed with the petitioner about the overall objective of vocational
rehabilitation, but stated that she “failed to recognize the composite nature of the vocational
rehabilitation benefits in the workers’ compensation scheme,” including both vocational
services and a cash payment. Id. at 437-38. We held that the vocational services provided
to the petitioner were “clearly intended to prepare [her] to return to the workplace,” and
were therefore dissimilar to her county-sponsored disability benefits and not subject to the
offset. Id. at 438. However, we concluded that petitioner received the vocational cash
payment benefits “because of the same injuries sustained in the same accident which
occurred in the course of her employment” and that those payments were therefore similar
to her disability payments and subject to the offset. Id. at 438-39. See also Polomski v.
July 1, 1989 effective date of the amendment refer to § 33(c) rather than § 33(d). The two
provisions are virtually identical. See Fikar, 333 Md. at 434 n.4; Polomski v. Mayor &
City Council of Balt., 344 Md. 70, 80 n.10 (1996).
40
Mayor & City Council of Balt., 344 Md. 70, 80-81 (1996) (discussing the history of the
offset in Art. 101, § 33(d) as relevant to the Court’s interpretation of a separate statutory
offset provision for firefighters, and holding that it was “unmistakably clear” that the
General Assembly intended in § 33(d) to ensure “that injured government employees
covered by both a pension plan and the [Workers’ Compensation] Act receive only a single
recovery for a single injury” and that “similar benefits for the same injury trigger the offset
provision of [ ] § 33(d)” while “[d]issimilar benefits [ ] render the offset provision
inapplicable”).
In 1991, “the General Assembly enacted the Labor and Employment Article as part
of the ongoing code revision process.” Blevins, 352 Md. at 641. As part of that revision,
the offset provision previously codified at Article 101 § 33(d) was recodified as LE § 9-610.
After the recodification, LE § 9-610(a) read as follows:
(a)(1) If a statute, charter, ordinance, resolution, regulation, or policy,
regardless of whether part of a pension system, provides a benefit to a
covered employee of a governmental unit or a quasi-public corporation that
is subject to this title under § 9–201(2) of this title or, in case of death, to the
dependents of the covered employee, payment of the benefit by the employer
satisfies, to the extent of the payment, the liability of the employer and the
subsequent injury fund for payment of benefits under this title.
(2) If a benefit paid under paragraph (1) of this subsection is less than the
benefits provided under this title, the employer, the Subsequent Injury Fund,
or both shall provide an additional benefit that equals the difference between
the benefit paid under paragraph (1) of this subsection and the benefits
provided under this title.
(3) The computation of an additional benefit payable under paragraph (2) of
this section shall be done at the time of the initial award and may not include
any cost of living adjustment after the initial award.
41
The newly recodified statute lacked the crucial “similar benefit” language of its
predecessor. This Court addressed that discrepancy in Blevins, 352 Md. 620. In the second
of two consolidated cases in that appeal,20 a county claimed that due to the 1991 rewriting
of the statute and the removal of the “similar benefit” language, an employee’s service
retirement benefits based upon age and length of service were subject to the offset. Id. at
628-29.
This Court discussed the legislative history of the offset provision in detail,
including our holding in Newman that the offset should be limited to “similar” benefits
awarded on the basis of the same injury so as to prevent a double recovery for the same
injury. Id. at 635-41. We noted the long-standing principle that “a change in a statute as
part of a general recodification will ordinarily not be deemed to modify the law unless the
change is such that the intention of the Legislature to modify the law is unmistakable.” Id.
at 642 (quoting Duffy v. Conaway, 295 Md. 242, 257 (1983). We held that this Court “must
presume that the General Assembly was aware of our decision in Newman when it enacted
the 1991 law,” and “would therefore have been aware . . . that the only benefits that a
county was entitled to set off against a workers’ compensation award were those that were
similar to the compensation benefits—those which, if not set off, would permit a double
20
The first of the two consolidated cases in Blevins involved a situation where a
county employee had been granted both accidental disability retirement benefits and
workers’ compensation benefits, but the workers’ compensation benefits were awarded
“for a weekly period prior to his retirement, when he was not receiving and was not entitled
to receive any offsetting retirement benefits.” Blevins, 352 at 627. We concluded that
because “there was no overlap” between the two sets of benefits, the statutory offset did
not apply. Id.
42
recovery for the same injury.” Id. Concluding that there was no evidence of legislative
intent to overturn the Newman decision, we held that “it is evident that the General
Assembly did not intend to make any substantive change to the law in deleting the word
‘similar.’” Id. at 644.
In 1997, prior to our holding in Blevins, but pre-dating the issuance of the WCC
decisions at issue in that case and therefore not discussed in that opinion, the General
Assembly amended LE § 9-610 to add a qualifying clause to the first sentence of LE §
9-610(a), stating that the offset applies for all benefits awarded to governmental employees
or their dependents “[e]xcept for benefits subject to an offset under § 29-118 of the State
Personnel and Pensions Article (“SP”).” 1997 Md. Laws ch. 279. That qualifying clause
has remained in force since 1997. However, the same law that added the qualifying clause
also amended SP § 29-118(a) to read as follows,
(a)(1) Except as otherwise provided in this subsection, this section
applies to a retiree and any designated beneficiary.
(2)(i) This section does not apply to a retiree of the Employees’
Pension System or the Employees’ Retirement System who receives a
disability retirement benefit as a former employee of a county board of
education or the Board of School Commissioners of Baltimore City or a
designated beneficiary of that retiree.
(ii) A retiree of the Employees’ Pension System or the Employees'
Retirement System who receives a disability benefit as a former employee of
a county board of education or the Board of School Commissioners of
Baltimore City or a designated beneficiary of that retiree is subject to § 9-610
of the Labor and Employment Article.
43
1997 Md. Laws ch. 279. Thus, under the statutory scheme created by the amendment,
which remains in effect today,21 a retiree who was employed by a county board of education
who receives a disability benefit through that employer remains subject to the offset
provision in LE § 9-610, and not the offset in SP § 29-118.22
Finally, in 1999, in apparent response to our holding in Blevins, the General
Assembly once again amended LE § 9-610 to add the word “similar” back to the statute.
1999 Md. Laws ch. 340. The stated purpose of the amendment was to “clarify[ ] that
certain workers’ compensation benefits should be offset only for a payment of certain
disability retirement benefits.” Id.23
21
Since 1997, SP § 29-118 has been amended so that it not only does not apply to
retirees or their beneficiaries who receive disability benefits as a former employee of a
county board of education, but to any retirees formerly employed by a county government,
i.e., a “participating governmental unit,” and their beneficiaries. See SP § 29-118(a)(2)
22
In their original form in the 1997 amendment, the offset provisions in LE § 9-610
and SP § 29-118 were not substantively different: SP § 29-118(b) provided that the
MSRPS should reduce any “disability retirement provision” granted to a retiree covered
“by any related workers’ compensation benefits,” so long as the workers’ compensation
benefits were paid while the employee continued to receive a pension and were awarded
for “an accidental personal injury or occupational disease arising out of and in the course
of the retiree’s employment by a participating employer.” 1997 Md. Laws ch. 279.
However, unlike LE § 9-610, the offset provision in SP § 29-118(b) expressly provided
that “[a] retirement allowance may not be reduced to be less than the sum of the retiree’s
annuity and the amount authorized to be deducted for health insurance premiums.” But, in
the current version of SP § 29-118, the difference between the two offset provisions is more
pronounced—under SP § 29-118(b), the offset for workers’ compensation benefits applies
only to “an accidental or special disability retirement benefit.”
23
In the 2017 annual legislative session, a cross-filed bill was introduced before the
House of Delegates and the Senate to amend LE § 9-610 to exempt ordinary disability
retirement benefits from the statutory offset. See House Bill 344, 2017 Leg., 437th Sess.;
Senate Bill 751, 2017 Leg., 437th Sess. However, in each chamber, the bill did not pass
the relevant committee to which it was assigned.
44
We distill the following three principles from the above-described legislative history
of LE § 9-610, and the cases that have applied and clarified the statutory offset provision.
First, the overall legislative intent behind the offset provision now contained in LE § 9-610
was “that the General Assembly wished to provide only a single recovery for a single injury
for government employees covered by both a pension plan and [workers’] compensation,”
and to thereby prevent employees from receiving a double recovery for the same injury.
Fikar, 333 Md. 435 (quoting Frank, 284 Md. at 659).
Second, as clarified in Newman, the specific language in the statute that “payment
of the benefit by the employer satisfies, to the extent of the payment, the liability of the
employer . . . for payment of similar benefits under this title” reflects a legislative intent
that the offset apply only to “comparable” benefits, which are “benefits accruing by
reason of the same injury.” 311 Md. at 727 (emphasis added). See also Fikar, 333 Md.
at 439 (holding that the statutory offset applied because cash payments the petitioner was
paid as part of her vocational rehabilitation benefits were awarded “because of the same
injuries sustained in the same accident which occurred in the course of her employment”
that was also the basis for her disability pension benefits); Polomski, 344 Md. at 81 (holding
that “similar benefits for the same injury trigger the offset provision of Art. 101, § 33(d)
[later recodified at LE § 9-610]” whereas “[d]issimilar benefits [ ] render the offset
provision inapplicable”); Blevins, 352 Md. at 642 (noting that pursuant to our holding in
Newman, “the only benefits that a county was entitled to set off against a workers’
compensation award were those that were similar to the compensation benefits—those
which, if not set off, would permit a double recovery for the same injury”). When benefits
45
are not traceable to the same injury, they are dissimilar, and the statutory offset does not
apply. Newman, 311 Md. at 728.
Third, although early cases discussing the statutory offset provision suggested it
should apply to offset workers’ compensation benefits against any other benefit that
compensates the employee for wage loss, this Court explicitly rejected that rationale in
Newman, emphasizing that “our statute focuses only on dual recoveries for a single on-the-
job injury” and “does not encompass setoffs for every type of wage-loss benefit available.”
Id. at 727.
B. Whether, As a Matter of Law, Ordinary Disability Benefits Can Be
“Similar Benefits” to Workers’ Compensation Benefits
We shall apply these principles to Mr. Reger’s first contention that, as a matter of
law, workers’ compensation benefits awarded by the WCC should never be offset under
LE § 9-610 by ordinary disability retirement benefits granted by the State Retirement Board
to a governmental employee. Mr. Reger insists that “the two benefits are paid for different
purposes” and that because ordinary disability benefits “do not compensate for work-
related injuries,” those benefits are therefore not a “similar benefit” to workers’
compensation benefits that should be offset pursuant to LE § 9-610. Mr. Reger contrasts
ordinary disability benefits with accidental disability benefits, which he asserts are awarded
for accidental workplace injuries and are thus “perfectly analogous to workers’
compensation benefits.” However, under the principles set forth in Newman and the other
cases described above, the “purpose” for which ordinary disability benefits are awarded—
whether to compensate for lost wages, or for loss of future earning capacity, or for some
46
other purpose—is entirely irrelevant to our analysis of whether the statutory offset in LE §
9-610 can apply to offset those benefits against a workers’ compensation award. Instead,
the only relevant inquiry is whether ordinary disability benefits can, as a matter of law, be
“similar” to workers’ compensation benefits—meaning that the two sets of benefits were
awarded as a recovery for the same injury or, in other words, stemmed from the same cause.
In his brief, Mr. Reger also asserts that the 1997 amendment to LE § 9-610
“indicates that legislature believed the ‘similar benefits’ in [LE] § 9-610 were limited to
accidental disability benefits.” Mr. Reger relies upon a fiscal note from the Department of
Fiscal Services and a house committee floor report, which refer to the purpose of the 1997
amendment as providing for the offset of workers’ compensation benefits against an
“accidental disability benefit” paid to the retiree. However, as described above, that
amendment modified the offset provision in SP § 29-118 to state that a retiree who was
employed by a county board of education who receives a disability benefit through that
employer remains subject to the offset provision in LE § 9-610. Thus under the plain
language of the 1997 amendment, the General Assembly intended that the offset in LE §
9-610 still apply to retirees of a county board of education or their beneficiaries.24 And, as
this Court has consistently held, even prior to the 1999 amendment that once again added
the word “similar” to the statute, the plain meaning of LE § 9-610 was to prevent a double
24
As noted earlier in this opinion, after the 1997 amendment, SP § 29-118(a) was
subsequently modified once again and now provides that the statutory offset in LE §
9-610—and not the separate offset provision in SP § 29-118(b)—applies to any retiree
employed by a county agency when the county participates in the state retirement system,
and not just to retirees of county boards of education.
47
recovery for the same injury by applying an offset to any benefit that is “similar” to
workers’ compensation benefit also received by the employee, i.e., when both sets of
benefits were awarded to compensate the employee for the same injury. See e.g., Blevins,
352 Md. at 638-41; Polomski, 344 Md. at 80; Fikar, 333 Md. at 435; Frank, 284 Md. at
659. The 1997 amendment did not add or delete language from LE § 9-610 that would
change that plain legislative intent or limit the offset solely to accidental disability
retirement benefits. And, the General Assembly has not subsequently amended the statute
to limit the scope of the offset provision.25 Therefore, we are not persuaded by Mr. Reger’s
reliance upon the fiscal note and house committee floor report.
In order to determine whether ordinary disability benefits can be awarded on the
basis of the same injury as workers’ compensation benefits, we shall examine their
eligibility criteria set by statute. As to ordinary disability retirement benefits, SP §
29-105(a) provides that,
The Board of Trustees [of the Maryland State Retirement and Pension
System] shall grant an ordinary disability retirement allowance to a member
if:
25
As previously noted, bills were introduced in the General Assembly in 2017 that
would have exempted ordinary disability retirement benefits from the statutory offset in
LE § 9-610, but those bills did not pass out of committee and were not enacted into law.
See supra n.19. We have cautioned that “the failure of a single bill in the General Assembly
may be due to many reasons, and thus is not always a good indication of the Legislature’s
intent.” Coleman v. Soccer Ass’n of Columbia, 432 Md. 679, 693 (2013) (quoting Moore
v. State, 388 Md. 623, 641 (2005)). However, we have also noted that “under some
circumstances, the failure to enact legislation is persuasive evidence of legislative intent.”
Id. (quoting Moore, 623 Md. at 641). Under these circumstances, we view the General
Assembly’s decision not to pass the proposed 2017 legislation as additional evidence of
the General Assembly’s intent that LE § 9-610 may apply to ordinary disability retirement
benefits.
48
(1) the member has at least 5 years of eligibility service; and
(2) the medical board certifies that:
(i) the member is mentally or physically incapacitated for the
further performance of the normal duties of the member’s
position;
(ii) the incapacity is likely to be permanent; and
(iii) the member should be retired
The statute does not mandate that the Medical Board or the State Retirement Agency, the
administrative arm of the MSRPS, must determine the cause of the physical incapacity of
the employee. Instead, they must only determine that the employee is physically unable to
perform his normal duties, and that his incapacitation is likely to be permanent and should
result in retirement.
In contrast, temporary total disability benefits “are those paid to a[n] injured worker
who is wholly disabled and unable to work because of the injury.” Buckler v. Willett Const.
Co., 345 Md. 350, 356 (1997) (internal citations and quotation marks omitted). They may
be awarded on the basis of either “an accidental personal injury or an occupational disease.”
LE § 9-618. Similarly, other workers’ compensation benefits are awarded on the basis of
a workplace accidental injury or occupational disease. See e.g., LE § 9-614 (temporary
partial disabilities); LE § 9-625 (permanent partial disability); LE § 9-635 (permanent total
disability).
As ordinary disability benefits may be awarded for any mental or physical injury
that renders the employee unable to perform the normal duties of his position, those
benefits certainly could be awarded on the basis of the same workplace accidental injury
or occupational disease that would support an award of workers’ compensation benefits.
49
Therefore, we hold that if the record reflects that the cause of the incapacity for which
ordinary disability retirement benefits were awarded was the same workplace accidental
injury or occupational disease that was the basis for a workers’ compensation award, the
two sets of benefits are “similar” and the offset in LE § 9-610 applies.
Our holding is consistent with the statutory purpose of the offset provision to
prevent a double recovery for the same injury. We agree with the Respondents that Mr.
Reger’s position that we should restrict the offset solely to accidental disability benefits is
contrary to the statutory purpose because it would increase instances of double recovery.
As governmental employees may choose to apply only for ordinary disability retirement
benefits from the MSRPS, such a ruling would incentivize them to do so, knowing that
they could also obtain a second recovery for the same injury from the WCC that would not
be subject to the statutory offset.
C. Whether the Ordinary Disability Benefits Paid to Mr. Reger by the MSRPS
Are “Similar Benefits” to the Temporary Total Disability Benefits Paid to Mr.
Reger by the WCC
Although we have held that ordinary disability benefits may be “similar benefits”
to workers’ compensation benefits when both sets of benefits are awarded based on the
same injury, we must still determine whether Mr. Reger’s ordinary disability benefits were
on the basis of the same injury as his temporary total disability benefits. Mr. Reger focuses
our attention on the Medical Board’s recommendation and State Retirement Agency
decision to deny him accidental disability benefits but grant him ordinary disability
benefits. The Medical Board recommendation stated,
50
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.
Mr. Reger maintains that when the Medical Board denied his claim for accidental disability
retirement benefits, it “very specifically found [that] Mr. Reger was not disabled because
of his [accidental] injury of November 12, 2007.” The State Retirement Agency
subsequently sent a letter to Mr. Reger accepting the Medical Board’s recommendation,
and stating that Mr. Reger was “entitled to an ordinary disability, due to Cervical
Spondylosis and Stenosis Lumbar Spondylosis,” but denying him accidental disability
benefits. Mr. Reger claims that letter shows that the State Retirement Agency awarded
him ordinary disability benefits “based solely on [ ] preexisting degenerative back
problems,” and not the November 12, 2007 accident.
In contrast, the Respondents contend that the State Retirement Agency did not find
that Mr. Reger’s ordinary disability benefits were awarded for injuries that are separate and
distinct from the injuries he sustained as a result of his November 12, 2007 accidental
injury, for which he received temporary total disability benefits. And, Respondents claim
that other evidence in the record, especially the fact that Mr. Reger made similar claims
and submitted similar evidence before both the WCC and State Retirement Agency, show
that both sets of benefits awarded to Mr. Reger stemmed from the same injury.
51
1. The State Retirement Agency Did Not Make an Express Finding That the
November 12, 2007 Accident Did Not Cause Mr. Reger’s Disability, But May
Have Found That the Proximate Cause of His Back and Neck Injuries Was
His Preexisting Back and Neck Conditions
Contrary to Mr. Reger’s assertions, neither the Medical Board nor the State
Retirement Agency ever expressly stated that they were denying accidental disability
benefits based on a finding that Mr. Reger was not disabled as a result of the November
12, 2007 accident. Instead, the Medical Board stated only that “the evidence submitted
concerning the accident did not prove that this event caused the permanent disability.” Just
as for ordinary disability benefits, the criteria for accidental disability retirement benefits
are set in statute. However, the criteria are significantly more stringent for accidental
disability benefits. SP § 29-109(b) provides,
(b) Except as provided in subsection (c)26 of this section, the Board of
Trustees [of the Maryland State Retirement and Pension System] shall grant
an accidental disability retirement allowance to a member if:
(1) the member is totally and permanently incapacitated for duty as the
natural and proximate result of an accident that occurred in the
actual performance of duty at a definite time and place without willful
negligence by the member; and
(2) the medical board certifies that:
(i) the member is mentally or physically incapacitated for the further
performance of the normal duties of the member’s position;
(ii) the incapacity is likely to be permanent; and
(iii) the member should be retired.
26
Subsection (c) of SP § 29-109 provides that for members of the Law Enforcement
Officers’ Pension System, instead of the “natural and proximate cause” standard, the Board
should consider whether the injury arose “out of or in the course of the actual performance
of duty.” Subsection (a) states that the provisions of SP § 29-109 do not apply to the State
Police Retirement System.
52
(emphasis added).
Thus, the Medical Board’s recommendations and State Retirement Agency’s
decision may have simply reflected that Mr. Reger presented insufficient evidence to prove
that his back injury was the “natural and proximate result” of the November 12, 2007
accident, but presented clear evidence that he was permanently incapacitated. Under those
circumstances, the State Retirement Agency lacked the authority to award him accidental
disability benefits for his injuries because he had not met his burden of proof—even if, in
fact, his injuries were the natural and proximate cause of the accident. But it could, and
did, award him ordinary disability retirement benefits, which can be awarded for any
incapacitating injury, even lacking proof or evidence as to causation.27
However, an equally plausible interpretation of State Retirement Agency’s decision
to award Mr. Reger ordinary disability benefits is that the agency believed that the back
and neck injuries he suffered were caused by preexisting conditions, and were not directly
attributable to his November 12, 2007 accident. As Mr. Reger points out, the Medical
Board’s recommendation and State Retirement Agency decision stated that Mr. Reger was
entitled to receive ordinary disability “due to” his preexisting back and neck conditions of
cervical spondylosis and stenosis lumbar spondylosis.
27
Notably, Mr. Reger was explicitly offered the opportunity to challenge the State
Retirement Agency’s decision. One of the options offered to him in the letter informing
him of the decision was to “[a]ccept an ordinary disability retirement allowance and pursue
your claim for an accidental disability retirement allowance.” He elected not to pursue that
option, and withdrew his claim for accidental disability benefits.
53
2. Even If the State Retirement Agency and WCC Ascribed Different Causes
to Mr. Reger’s Back and Neck Injuries, That Does Not Imply That The
Agencies Awarded Him Benefits for Separate And Distinct Injuries
Even if the State Retirement Agency did, in fact, award Mr. Reger ordinary
disability benefits instead of accidental disability benefits based upon a finding that his
incapacity to work was proximately caused by his pre-existing back problems rather than
the November 12, 2007 accident, that finding would not necessarily imply that he sustained
two separate and distinct injuries. As we shall explain, because the State Retirement
Agency applies a different legal standard when making disability benefit determinations
than the WCC applies when deciding whether to award temporary total disability benefits,
a single injury may result in the denial of accidental disability benefits but the grant of
temporary total disability benefits.
In Courtney v. Board of Trustees of Maryland State Retirement System, we
interpreted the “natural and proximate cause” standard in the predecessor statute to SP §
29-109(b), and stated that an accidental injury under the statute “does not include
unexpected results not produced by accidental causes,” and that “[a]n unexpected result
(the incapacitating injury) attributable to a preexisting condition is not, therefore, an
accidental injury.” 285 Md. 356, 363 (1979) (internal citations and quotation marks
omitted). Thus, a claimant seeking accidental disability retirement benefits who also
suffers from preexisting conditions must show that his injury and resultant incapacity were
caused by the work accident, as opposed to a the natural degeneration or progression of the
preexisting condition. See e.g., Courtney, 285 Md. at 364-65 (affirming State Retirement
Agency decision to deny accidental disability benefits on the basis of the agency’s finding
54
that an employee’s “nervous breakdown and mental disability (were) attributable to a
preexisting condition of paranoia-schizophrenia”); Eberle v. Balt. Cty., 103 Md. App. 160,
174-75 (1995) (holding that under a Baltimore City code provision that was identical to the
current version of SP § 29-109(b)(1), “[b]ased on the medical reports that were riddled
with references to a preexisting degenerative arthritis problem in addition to hypertension
and a chronic overweight problem, it was not error for the [county agency] to conclude that
Eberle’s disability was not the natural and proximate result of the accidental injuries he
suffered”); Ahalt v. Montgomery Cty., 113 Md. App. 14, 27 (1996) (holding that under a
Montgomery County code provision that awarded a disability benefit if it was the “natural
and proximate result” of an accident, occupational disease, or condition aggravated in the
performance of duty, the county employee was not entitled to receive the benefit, because
there was “substantial evidence from which [the county’s merit board] could conclude that
appellant’s incapacity was the natural and proximate result of his underlying osteoarthritic
condition, [rather than] the natural and proximate result of the aggravation of the condition
arising from the performance of his duties”).
In contrast, temporary total disability benefits are to be awarded “without regard to
pre-existing disease or infirmity.” Electrical General Corp. et al. v. LaBonte, No. 69,
September Term, 2016, Slip. Op. at 20 (quoting Martin v. Allegany Cty. Bd. of Cty.
Comm’rs, 73 Md. App. 695, 700 (1988)). Instead, the WCC is limited to looking solely to
“the final [workplace] accident contributing to the disability” and determining if it is
sufficient basis to award temporary total disability benefits. Id.
55
Given the disparate standards for awarding the two benefits, particularly that the
WCC is not permitted to consider whether an employee’s accidental workplace injury
was caused by a preexisting “disease or infirmity” when awarding temporary total
disability benefits, it is perfectly possible for the WCC to award temporary total disability
benefits on the basis of a workplace injury that only exacerbated or triggered a preexisting
back injury. But, although in such a case the WCC would be barred by law from
considering any relation between the injury and the preexisting medical condition, no such
restriction applies to the State Retirement Agency. Consequently, when evaluating the
same set of facts, the State Retirement Agency may well determine that it was the natural
progression or degeneration of the preexisting condition, and not the accident, that was the
natural and proximate cause of the injury, and grant the employee ordinary disability
benefits instead of accidental disability benefits. Critically, in such a situation, although
the WCC and State Retirement Agency may reach different conclusions as to the cause of
the employee’s injury—because each agency applies a different legal standard—both sets
of benefits would be awarded for the same overall injury.
That conclusion is further bolstered by the Court of Special Appeals’ holding in
Reynolds v. Board of Education of Prince George’s County, 127 Md. App. 648 (1999). In
Reynolds, the appellant was employed by the Board of Education of Prince George’s
County as a bus driver. Id. at 650. The appellant “was exposed to diesel fuel and its fumes
while operating a bus, and as a result of the exposure, began to suffer from a variety of
health problems including headaches, respiratory difficulties, and skin irritations.” Id. She
filed a claim with the WCC alleging that she was disabled as the result of an occupational
56
disease, and ultimately was awarded permanent partial disability benefits “as the result of
a work-related occupational disease resulting from exposure to diesel fuel.” Id. at 650-51.
Thereafter, the appellant applied for accidental disability benefits “as the result of her
health problems resulting from exposure to diesel fuel and fumes.” Id. at 651. The Medical
Board “denied appellant’s claim for accidental disability retirement benefits but granted
ordinary disability retirement benefits . . . based on a finding of chronic asthma with an
allergic reaction to fuel and diesel fumes.” Id. Appellant appealed the denial of accidental
disability benefits, but the Medical Board’s decision was upheld by an administrative law
judge and the Board of Trustees of the MSRPS. Id. “As a result, appellant was denied
accidental disability retirement benefits but was awarded ordinary disability retirement
benefits.” Id.
The WCC determined that the employer was not entitled to offset the ordinary
disability benefits against the workers’ compensation benefits because, in the
Commission’s view, they were not “similar” benefits. Id. The employer appealed to the
circuit court and, after employer filed a motion for summary judgment, the circuit court
reversed the WCC and held that the statutory offset in LE § 9-610 applied. Id. at 652. The
employee subsequently appealed to the Court of Special Appeals, which initially upheld
the circuit court in an unreported opinion. Id. However, in light of our holding in Blevins
clarifying the meaning of LE § 9-610, we vacated that judgment and remanded for
reconsideration. Id. at 653.
Following that remand, the Court of Special Appeals issued a reported opinion, in
which it held that “the ordinary disability retirement benefits awarded to appellant are
57
similar to the workers’ compensation permanent partial disability benefits awarded to
appellant, and the offset provision applies.” Id. at 655. The Court of Special Appeals
reasoned that, based on the facts of the case, “there was a single medical condition caused
by appellant’s exposure to diesel fuel while suffering from an asthmatic condition” that
was the basis for both benefits awards. Id. The intermediate appellate court noted that
“[a]ppellant claimed the same medical condition and physical incapacity and submitted the
same evidence to both the medical board and the Commission.” Id. And, the Court of
Special Appeals explained that workers’ compensation law “recognizes that an
occupational disease may be compensable, and in fact, the Commission awarded
compensation in this case.” Id. In contrast, it noted that “[t]he State Retirement and
Pension System awards disability retirement benefits for an accidental injury but does not
recognize a work-related occupational disease,” but may award ordinary disability
retirement benefits for an occupational disease. Id. Having explained that the fact that the
benefits were awarded was merely a result of the different legal standards applied by the
WCC and the State Retirement Agency, the Court of Special Appeals emphasized that the
statutory offset should still apply because “the same physical incapacity on the part of
appellant formed the basis for the workers’ compensation award and for the ordinary
disability retirement award.” Id. The Court of Special Appeals in Reynolds also offered
an alternative rationale for why the statutory offset should be applied, stating that “[t]he
ordinary disability retirement benefit is tantamount to a wage loss benefit,” and therefore
is “similar to a workers’ compensation award.” Id.
58
We agree with the Court of Special Appeals’ statement in Reynolds that the statutory
offset should apply when “the same physical incapacity . . . formed the basis for the
workers’ compensation award and for the ordinary disability retirement award.” In those
circumstances, both sets of benefits were awarded based on the same overall injury, and
the employee is not entitled to a double recovery.28
The Court of Special Appeals in Reynolds relied in part on the employee’s claims
made in her applications for benefits and the medical evidence she submitted in support of
those applications, noting that “[a]ppellant claimed the same medical condition and
physical incapacity and submitted the same evidence to both the medical board and the
Commission.” 127 Md. App. at 655. In the instant case, the circuit court and the Court of
Special Appeals similarly concluded that Mr. Reger’s benefits were awarded for the same
injury based in part upon the fact that Mr. Reger’s applications for disability benefits both
referenced the November 12, 2007 accident, and that the same medical reports and
28
In addition to Reynolds, each party urges us to rely upon an additional Court of
Special Appeals decision as persuasive authority. In his brief, Mr. Reger contends that his
position on appeal is supported by an unreported opinion from the Court of Special
Appeals, Maxine Mosely v. Board of Education of Montgomery County, No. 289, Sept.
Term 2006 (Ct. Spec. App., Sept. 11, 2007). However, pursuant to Maryland Rule
1-104(a), “[a]n unreported opinion of the Court of Appeals or Court of Special Appeals is
neither precedent within the rule of stare decisis nor persuasive authority.” Therefore, we
may not rely upon that case. In contrast, the Washington County Board of Education urges
us to rely upon the Court of Special Appeals’ reported opinion in Zakwieia v. Baltimore
County Board of Education, 231 Md. App. 644 (2017). However, we note that there is a
certiorari petition to that case pending before this Court and, as of the time of publication
of this opinion, the Court has not yet decided whether to grant or deny the petition.
Furthermore, it appears that the Court of Special Appeals’ opinion in Zakwieia relies
primarily upon its prior holding in Reynolds, which we have already discussed in detail.
Therefore, we shall not rely upon that decision in the instant appeal.
59
evidence were presented in support of both applications. Before this Court, Mr. Reger
contends that it is improper to rely on what was submitted or claimed before the WCC or
the State Retirement Agency to determine whether the benefits are “similar.” We disagree.
The agency orders or letters awarding benefits may not specify the nature of the injury that
was the basis for the award in sufficient detail for the Commission, or a reviewing court,
to determine whether those benefits were awarded on the basis of the same injury for which
the employee also received workers’ compensation benefits. This is particularly true for
State Retirement Agency letters awarding ordinary disability benefits, as there is no legal
requirement that the agency identify the cause of the injury for which the benefit was
awarded. Therefore, it may be appropriate for the Commission or a reviewing court to look
at other documents and evidence in the record to determine if the benefits are for the same
injury, including the applications and evidence submitted by the claimant.
Our sole point of disagreement with the intermediate appellate court’s reasoning in
Reynolds is as to its alternate explanation for why the statutory offset should apply: that
because ordinary disability retirement benefits and the workers’ compensation benefits at
issue in that case are both “wage loss benefit[s]” they are per se “similar” benefits. As
noted previously, we explicitly rejected that rationale in Newman, where we stated that the
statutory offset now contained in LE § 9-610 “focuses only on dual recoveries for a single
on-the-job injury” and “does not encompass setoffs for every type of wage-loss benefit
available.” 311 Md. at 727. We note that ordinary disability retirement benefits do not
necessarily preclude an employee from working in the future—an employee need only
show that he is “incapacitated for the further performance of the normal duties of the
60
member’s position” to receive those benefits, not that he is unable to work at all. See SP §
29-105(a). Thus, an employee could hypothetically retire from a governmental employer
on ordinary disability benefits for one incapacity, return to the workforce in a new position,
and later incur a separate and distinct injury, for which he receives temporary total
disability benefits from his new employer. In that event, he would be receiving two wage-
loss benefits, but for different injuries, and the benefits should not be offset merely because
both benefits are designed to compensate him for lost wages. Conversely, the statutory
offset provision in LE § 9-610 is not limited only to those benefits that might be
characterized as “wage loss benefits,” but applies to any benefit awarded to compensate
the same injury for which the employee also received workers’ compensation benefits. See
Oros, 56 Md. App. at 690 (describing permanent partial disability benefits as “more in the
nature of earning capacity impairment benefits” than “wage loss” benefits).
In summary, as clarified by our above analysis about the differing standards the
State Retirement Agency and WCC apply to award disability benefits, and as further
supported by the Court of Special Appeals’ reasoning in Reynolds and in the instant case,
we conclude that when a claimant suffers a single overall injury that involves a preexisting
condition that was exacerbated or triggered by an accidental injury, the State Retirement
Agency and WCC may both award the claimant benefits for that single injury but make
contrasting findings as to the cause of the injury. In order to ensure that the statutory intent
and purpose of LE § 9-610 to prevent a double recovery for the same injury prevail, we
hold that in those circumstances, the WCC may properly apply the statutory offset in LE §
61
9-610, and issue an order permitting the employer or insurer to set off the temporary total
disability benefit against the ordinary disability retirement benefits.
In determining whether the two sets of benefits were awarded for the same injury,
the WCC may consider any relevant evidence that may clarify the injuries for which the
temporary total disability and ordinary disability retirement benefits were awarded, and
whether the benefits were awarded for the same or separate injuries. That relevant evidence
may include the Medical Board’s recommendation or State Retirement Agency’s order
supporting an award of ordinary disability retirement benefits. But, because the State
Retirement Agency and WCC may have reached different conclusions as to the cause of a
same injury, the WCC may also consider other evidence in the record, which may include
medical reports, information stated in a claimant’s application for benefits, or witness
testimony presented to the WCC.
3. In the Instant Case, Mr. Reger Was Paid Both Sets of Benefits As
Compensation For The Same Injuries to His Back and Neck
In the instant case, it is clear that Mr. Reger was paid both ordinary disability
benefits and temporary total disability benefits as compensation for the same back and neck
injuries. Although Mr. Reger’s custodial position involved “very physical work” that
included regular bending and lifting, he repeatedly testified to the WCC that he had never
missed any time from work or sought any medical treatment for “any back problems” prior
to the November 12, 2007 work accident.29 After that accident, in early 2008, Mr. Reger
29
In testimony before the WCC, Mr. Reger acknowledged an earlier 2004 injury
involving a file cabinet, which required an MRI and “some physical therapy.” However,
Mr. Reger expressly denied that the 2004 injury had resulted in any back problems.
62
saw Dr. Larkin for treatment, and was diagnosed for the first time with degenerative back
conditions: spondylolisthesis and cervical stenosis. However, during the course of
proceedings before the WCC in which Mr. Reger sought temporary total disability benefits
until he could undergo and recover from a proposed lumbar surgery, he submitted a letter
from Dr. Larkin to the Commission, in which Dr. Larkin 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.
(emphasis added). Thus, Mr. Reger’s own testimony before the WCC as well as the
medical opinion of his own treating physician submitted to the Commission plainly
indicate that, while he may have had an undiagnosed degenerative back medical condition
prior to the November 12, 2007 accident, he did not suffer from a back injury that caused
him to miss work until after that accident.30
30
The other medical reports and evidence in the record are in accord with Dr.
Sansur’s conclusions. Dr. Charles Sansur, who performed a 2010 lumbar surgery on Mr.
Reger, submitted a report in subsequent WCC proceedings in which he stated in part that
“[w]hile 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.” The WCC sought an independent
medical examination in addition to Dr. Sansur’s report, and the parties engaged Dr. Kevin
McGrail to examine Mr. Reger. Dr. McGrail similarly found that “[a]lthough Mr. Reger’s
[back condition] 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,” and that “[b]ased 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.”
63
The WCC initially denied Mr. Reger temporary total disability benefits but, after a
petition to the circuit court for judicial review, a jury returned a verdict in his favor, and
the circuit court vacated the order of the WCC and remanded 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[.]
Thus, it is clear that Mr. Reger’s temporary total disability benefits from July 16, 2008 to
September 9, 2009 were awarded on the basis of the back injuries he sought treatment for
following the November 12, 2007 accident that required back surgery and rendered him
unable to work. The same is true of his second period of temporary total disability benefits
from September 25, 2010 to November 8, 2013. Mr. Reger secured those additional
benefits after he had again sought to receive temporary total disability benefits until he
could undergo and recover from a second proposed surgery, for neck and left arm and
elbow pain. He was again initially denied benefits by the WCC, and again successfully
appealed for judicial review in the circuit court, resulting in a jury finding that his second
proposed surgery was causally related to the November 12, 2007 accident.
Mr. Reger’s application to the MSRPS for accidental disability benefits similarly
reflects that he sought benefits for the same back injuries that he suffered after the
November 12, 2007 accident. Mr. Reger’s description of his “disability or medical
condition” indicated conditions relating to his lower back, neck, shoulder, left leg, and left
hand. He also described how, after the accident, he could not physically perform certain
64
functions of his job, including climbing steps or ladders, standing for a long time, lifting
items, mowing grass, scrubbing doors, shoveling snow, etc. Dr. Larkin, the same physician
who submitted a report to the WCC on Mr. Reger’s behalf, signed a Physician’s Medical
Report attached to the application, which gave a similar description of his degenerative
back problems. Furthermore, as Mr. Reger’s counsel conceded during questioning by the
circuit court judge during the summary judgment hearing, the same medical records were
submitted to the State Retirement Agency as to the WCC. The Medical Board concluded
that Mr. Reger suffered a permanent disability, and recommended that Mr. Reger be
approved ordinary disability benefits based upon the degenerative back problems identified
by Dr. Larkin. The Medical Board’s recommendations were thereafter adopted by the State
Retirement Agency, which awarded Mr. Reger ordinary disability retirement benefits.
Thus, the record plainly demonstrates that both sets of benefits were awarded for
the same injuries: the back injuries which Mr. Reger suffered in the aftermath of the
November 12, 2007 accident. 31 Therefore, we hold that Mr. Reger’s ordinary disability
benefits are “similar benefits” to his temporary total disability benefits, and the statutory
offset in LE § 9-610 applies.
31
To the extent that our analysis and reasoning differs from that set forth by the
circuit court and the Court of Special Appeals, both of which relied in part upon the “wage
loss” rationale stated in Reynolds, 127 Md. at 655, that does not affect the outcome of this
appeal. As we are tasked with reviewing “the agency’s decision directly, not the decision
of the Circuit Court or the Court of Special Appeals,” Hollingsworth, 448 Md. at 654, our
sole concern is the decision of the WCC, and any variance between our reasoning and that
of the circuit court or intermediate appellate court is irrelevant. And, the record of the
offset hearing before the WCC clearly reflects that the Respondents raised a claim before
the agency that Mr. Reger was awarded both sets of benefits for the same back and neck
injuries he was diagnosed with following the November 12, 2007 accident.
65
IV.
CONCLUSION
In summary, we hold that the legislative intent behind the overall offset provision
now contained in LE § 9-610 is to prevent employees of a Maryland governmental unit or
quasi-public corporation who are covered by both a pension plan and workers’
compensation from receiving a double recovery for the same injury. Similarly, we
conclude that the legislative intent behind the specific language in the statute that “payment
of the benefit by the employer satisfies, to the extent of the payment, the liability of the
employer . . . for payment of similar benefits under this title,” LE § 9-610 (emphasis
added), was that the offset apply only to “comparable” benefits, which are “benefits
accruing by reason of the same injury.” Newman, 311 Md. at 727 (1988) (emphasis
added). And, we note that a benefit that compensates an employee for wage loss is not
necessarily a “similar benefit” subject to the statutory offset; the offset would not apply if
the wage loss benefit was not awarded for the same injury as the workers’ compensation
benefit. Id.
We further hold that, as a matter of law, ordinary disability benefits can be legally
similar to workers’ compensation benefits, if the record reflects that the cause of the
incapacity for which ordinary disability benefits were awarded was the same workplace
accidental injury or occupational disease that was the basis for the workers’ compensation
benefits.32 Although Mr. Reger contends that the offset should be limited only to accidental
32
Our holding today does not imply that an award of ordinary disability retirement
benefits should always be offset against an award of temporary total disability workers’
compensation benefits. Nor do we agree with the amici curiae’s view that, as a matter of
66
disability benefits, such a holding would be contrary to the statutory purpose of the offset;
it would incentivize governmental employees to apply only for ordinary disability benefits,
knowing that they could also obtain a second recovery for the same injury from the WCC
that would not be subject to the statutory offset.
Finally, we hold that in this case, the record reflects that the ordinary disability
benefits paid to Mr. Reger were based on the same injury as his temporary total disability
benefits. Although the State Retirement Agency arguably found that the injury for which
it was awarding Mr. Reger ordinary disability benefits was caused by his preexisting
degenerative back problems, whereas his temporary total disability benefits from the WCC
were awarded for his November 12, 2007 accident, that does not imply that each benefit
was awarded for a separate and distinct injury. The State Retirement Agency and WCC
apply different legal standards to determine whether a beneficiary is entitled to a disability
benefit. Therefore, when a disability claimant suffers an injury involving a preexisting
condition that is triggered or exacerbated by a work accident, the two agencies may both
award benefits for the same injury but ascribe different causes to that injury. Under those
law, LE § 9-610 should apply “to ordinary disability [retirement] benefits to the same
extent that it applies to accidental disability [retirement] benefits when the reason for the
disability payment includes the same body part for which workers’ compensation benefits
are awarded.” Although the fact that an employee’s ordinary disability benefits were
awarded on the basis of an injury to the same body part for which workers’ compensation
benefits were awarded is certainly relevant to deciding whether the benefits were awarded
on the basis of the same injury, it is not necessarily determinative. An employee may be
able to prove to the Commission that the two benefits were each awarded on the basis of
separate and distinct injuries involving the same body part. While that may be a difficult
factual showing for an employee to make—and, as we have shown, is not one that is
supported by the record of Mr. Reger’s injuries in the instant case—we cannot say that, as
a matter of law, it is an impossible one.
67
circumstances, in order to determine whether ordinary disability benefits and workers’
compensation benefits were awarded on the basis of the same injury, the WCC is not bound
to prior agency findings as to causation. Instead, the WCC may consider any relevant
evidence or argument submitted as to the basis for each benefit, which may include: letters
or orders granting a benefit, information stated in a claimant’s application for benefits, and
evidence submitted to the agency, such as medical records or witness testimony. Here, that
evidence clearly shows that both sets of benefits were awarded to compensate the same
injuries; Mr. Reger claimed in both applications for benefits that he was seeking benefits
for the same back and neck injuries, submitted the same medical records and similar
medical expert opinions, and testified before the WCC that the first injury that he had
suffered to his back occurred after the November 12, 2007 accident.
Although Mr. Reger has been granted two sets of benefits for the same injury, he is
entitled to only one recovery for that single injury. Therefore, we hold that the WCC did
not err in its determination that the offset provision in LE § 9-610 applies in this case, and
that the Respondents are entitled to offset Mr. Reger’s ordinary disability benefits against
his temporary total disability benefits. Accordingly, the judgment of the Court of Special
Appeals is affirmed.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED.
COSTS TO BE PAID BY
PETITIONER.
68