W.R. Grace & Co. v. Swedo

W. R. Grace & Co., et al v. Andrew P. Swedo, Jr., No. 82, September Term, 2013,
Florida Rock Industries, Inc., et al. v. Jeffrey P. Owens, No. 91, September Term, 2013,
and Robert W. Coffee v. Rent-A-Center, Inc., et al., No. 92, September Term, 2013,
Opinion by Adkins, J.
MD. CODE (1991, 2008 REPL. VOL.), § 9-633 OF THE LABOR AND
EMPLOYMENT ARTICLE –– AWARD FOR PERMANENT PARTIAL
DISABILITY REVERSED OR MODIFIED ON APPEAL –– CREDIT FOR
COMPENSATION PREVIOUSLY AWARDED AND PAID: Because the Workers’
Compensation Act clearly defines compensation as money, an Employer/Insurer should
be credited for the total dollars previously paid under an award when that award is
modified on appeal. This differs from the credit given in a reopening case, which is
measured by weeks.
W. R. Grace & Co., et al. v. Andrew Swedo
Circuit Court for Baltimore County
IN THE COURT OF APPEALS
Case No. 03-C-10-010051
OF MARYLAND
Florida Rock Industries, Inc., et al. v.
Jeffrey P. Owens
Circuit Court for Saint Mary’s County
Case No. 18-C-11-000613 Nos. 82, 91 and 92
September Term, 2013
Robert W. Coffee v. Rent-A-Center, Inc.,
et al.
Circuit Court for Baltimore City
Case No. 24-C-12-004002 W. R. GRACE & CO., et al.
Argued: April 30, 2014
v.
ANDREW P. SWEDO, JR.
FLORIDA ROCK INDUSTRIES, INC., et al.
v.
JEFFREY P. OWENS
ROBERT W. COFFEE
v.
RENT-A-CENTER, INC., et al.
Barbera, C.J.,
Harrell
Battaglia
Greene
Adkins
McDonald
Cathell, Dale R., Retired,
Specially Assigned
JJ.
Opinion by Adkins, J.
Filed: July 22, 2014
In each of these three cases we are tasked with determining the appropriate
method for crediting payments made under a workers’ compensation award when that
award is increased on appeal. The question is whether the credits are computed on the
basis of the number of weeks paid or the amount of money expended. The answer can
make a substantial difference in the bottom line paid and received. In resolving the issue
in favor of the claimants in each of these cases, we rely on legislation passed specifically
to supersede earlier decisions of this Court.
FACTS AND LEGAL PROCEEDINGS
Because there are no disputed facts in these cases, and the questions presented are
identical in each case, we will only briefly touch on the facts of each case. The different
procedural posture of each case results in the employers sometimes being petitioners and
sometimes respondents, and vice versa for the injured workers. Thus, we will dispense
with our traditional Petitioner/Respondent designation of parties and instead collectively
refer to the Employer/Insurers 1 (“Employers”) and Workers when discussing the relevant
cases and statutes.
No. 82, W.R. Grace and Co. v. Swedo
Andrew P. Swedo, Jr. (“Swedo”) was injured on November 3, 2002 while working
for W.R. Grace & Co. (“Grace”). Swedo filed a claim with the Workers’ Compensation
Commission (the “Commission”) seeking permanent total disability benefits, or, in the
1
In each case, the employer’s insurer is a co-party with the employer. Although
our resolution of this case will have ramifications for the respective insurers, we shall
focus our analysis on the relationship between the Employers and the Workers.
alternative, permanent partial disability benefits. After a hearing, the Commission found
that Swedo had sustained a 70% permanent partial disability and awarded him $234 per
week for 200 weeks. The disability was apportioned as follows: 40% permanent
disability due to the workplace accident, and 30% permanent disability due to preexisting
conditions. Swedo appealed this decision to the Circuit Court for Baltimore City. The
jury agreed that Swedo suffered a 70% permanent partial disability, but found that he was
50% disabled due to the accident, and 20% disabled due to preexisting conditions. The
Circuit Court subsequently vacated and remanded the award on appeal. The Commission
then amended its order to $525 per week for 333 weeks. At the time of this amended
award, Grace had already paid under the initial award for 148 weeks.
Swedo filed Issues with the Commission requesting clarification as to whether
Grace was entitled to a credit based on the total number of weeks it had paid under the
initial award, or total dollars paid. The Commission ordered that Grace be credited for
the weeks paid. Swedo appealed this determination to the Circuit Court for Baltimore
County, which affirmed the Commission. Swedo then appealed to the Court of Special
Appeals, which reversed the Circuit Court, holding that employers should receive credit
based on the total dollars paid. Grace petitioned this Court for certiorari, which we
granted.
No. 91, Florida Rock Industries v. Owens
In May 2005, Jeffrey P. Owens (“Owens”) sustained an accidental lower back
injury while working for Florida Rock Industries, Inc. (“Florida Rock”). On February 26,
2010, the Commission issued an order finding that Owens had sustained a permanent
2
partial disability resulting in a 30% industrial loss of the use of his body as a result of the
accident, and ordered Florida Rock to make weekly payments of $257 for 150 weeks,
retroactive to July 15, 2008. On judicial review in the Circuit Court for Saint Mary's
County, a jury reversed the Commission’s decision, finding that Owens had suffered a
permanent partial disability amounting to a 50% industrial loss of the use of his body.
On remand from the Circuit Court, the Commission amended its order to an award of
$401 per week for 333 weeks. This order did not credit Florida Rock for the weeks of
benefits already paid.
Florida Rock petitioned the Circuit Court for judicial review of the Commission’s
order, and filed a motion for summary judgment requesting credit for the 150 weeks of
benefits already paid. Owens conceded that a credit was proper, but argued that the
credit should be based on the “monetary benefits paid” rather than the number of weeks
paid. The court agreed with Owens, and found that Florida Rock was entitled to a credit
for the dollar amount of benefits already paid to Owens under the Commission’s
February 26, 2010 award. Florida Rock appealed to the Court of Special Appeals, which
affirmed the Circuit Court in an unreported opinion. We granted Florida Rock's Petition
for Writ of Certiorari.
No. 92, Coffee v. Rent-A-Center, Inc.
Robert W. Coffee (“Coffee”) was injured while working as an account manager
for Rent-A-Center in December of 2007. After filing a workers’ compensation claim, the
Commission determined that he sustained a permanent partial disability equating to a
12% industrial loss of the use of his back, and awarded Coffee 60 payments of $114
3
retroactive to March 21, 2009. Coffee petitioned the Circuit Court for Baltimore City for
review of this award. The jury found that Coffee’s permanent partial disability amounted
to a 16% industrial loss, and consequently, the Commission’s award was reversed in part.
The Commission issued an amended award on January 18, 2012, granting Coffee an
award of $283 per week for 80 weeks, retroactive to March 21, 2009. During the
pendency of this appeal, Rent-A-Center paid Coffee all 60 installments of his weekly
award. As a result, the initial award of $6,840 was paid in full by the time the
Commission issued its amended award.
Rent-A-Center did not appeal the amended award or request an accounting as to
its prior payments. Yet Rent-A-Center did not pay the amended award in full. Rather,
Rent-A-Center deducted the 60 weeks already paid from the award, and sent Coffee a
check for $5,660, representing the 20 week increase at $283 per week. Coffee filed
Issues with the Commission to compel payment of the difference between the total
awards computed according to the total dollars paid, rather than according to the total
weeks paid. The Commission determined that a weeks-paid standard was the appropriate
standard, pursuant to this Court’s holding in Ametek, Inc. v. O’Connor, 364 Md. 143, 771
A.2d 1072 (2001). 2 Coffee sought judicial review of this decision in the Circuit Court for
Baltimore City. The court affirmed the Commission. Coffee then appealed to the Court
of Special Appeals, but before the intermediate appellate court could rule, we granted
Rent-A-Center’s Petition for Writ of Certiorari.
2
Discussed infra.
4
Although each petitioner phrases the question differently, each case asks us to
decide the following question:
When crediting an Employer/Insurer for payments made
under a workers’ compensation award that is subsequently
amended, should credit be given for the number of weeks
paid under the initial award, or should credit be given for the
total dollar amount paid under the initial award?
For the following reasons, we hold that in such situations, credit should be given
for the total amount of dollars paid under the initial award.
DISCUSSION
The Employers make two primary arguments regarding their assertion that they
should be credited on a weeks-paid basis. First, they claim that the broad purpose and
language of the Workers’ Compensation Act (the “Act”) supports a weeks-paid crediting
regime. Second, the Employers argue that our previous case law explicitly and
consistently upholds a crediting for the number of weeks paid when considering changes
in workers’ compensation awards.
The Workers counter with two primary arguments. First, they argue that Md.
Code (1991, 2008 Repl. Vol.), § 9-633 of the Labor and Employment Article (“LE”)
unambiguously requires that credit for payments made be calculated in terms of the total
dollar amount paid. Second, they argue that the legislative history supports a clear
legislative intent that the crediting be done in terms of the total dollar amount paid. We
address these arguments in turn.
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The Employers argue that LE § 9-633 3 must be interpreted consistently with the
Act as a whole. They reason that because the provisions that set out the payment
schedule for permanent partial disability, LE §§ 9-626 through 9-630, express payment
schedules in terms of weeks payable, the units of compensation contemplated by the Act
are weekly in nature. The Employers point to the title of LE § 9-627––“Duration of
compensation”––for further proof that the payment of benefits under the Act is
fundamentally computed in terms of weeks. As Rent-A-Center explains,
The Legislature intended tha[t] an injured employee receive
benefits for his injury for a duration that is proportionate to
his injury. The dollar amounts of those benefits are
calculated pursuant to the duration of weeks and are based on
factors including the date of the injury and how much the
employee was making at the time of his injury.
Thus, the Employers explain, the Act is primarily about the number of weeks an injured
employee is paid, rather than the total amount of money the employee is paid.
The Employers remind us that when tasked with interpreting a statute, we have
routinely explained that we must avoid illogical or unreasonable results. They argue that
3
This article provides:
Reversal or change in compensation.
If an award of permanent partial disability compensation is
reversed or modified by a court on appeal, the payment of any
new compensation awarded shall be:
(1) subject to a credit for compensation previously
awarded and paid; and
(2) otherwise made in accordance with this [sic] Part
IV of this subtitle.
Md. Code (1991, 2008 Repl. Vol.), § 9-633 of the Labor and Employment Article.
6
it would be illogical to interpret the Act such that in all other provisions, it structures
benefits around a weekly approach, but when calculating the credit for benefits already
paid, it switches up to base benefits on total dollars paid. Thus, they say, the clear
language of the Act as a whole, and specifically LE § 9-633, supports a weeks-paid credit
calculation.
The Employers also explain that our longstanding precedent––as embodied in
Philip Electronics North America v. Wright, 348 Md. 209, 703 A.2d 150 (1997),
superseded by statute as stated in Plein v. Department of Labor, 369 Md. 421, 800 A.2d
757 (2002), Ametek, Inc. v. O’Connor, 364 Md. 143, 771 A.2d 1072 (2001), and Del
Marr v. Montgomery County, 397 Md. 308, 916 A.2d 1002 (2007)––is that employers
should be credited for the weeks they have paid under previous awards. As they explain,
even after the enactment of LE § 9-633, this Court held in Del Marr that credits should be
calculated in terms of weeks. The Employers point to our holding in Del Marr in which
we stated that “a modification that serves to increase or decrease compensation, whether
occasioned by . . . judicial review . . . or a reopening, may have prospective effect only,
achieved by allowing a credit for compensation previously paid calculated on a weekly
basis.” 397 Md. at 320, 916 A.2d at 1008. Additionally, the Employers explain that Del
Marr rejected the argument that the enactment of LE § 9-633 overturns Philip
Electronics and Ametek. Id. at 317–18, 916 A.2d at 1007. The Employers urge us to
follow this line of precedent.
The Workers argue that LE § 9-633 is clear and unambiguous in providing that
credit for payments made under an amended award should be done in reference to total
7
dollars paid. They explain that LE § 9-101(e)(1) defines “compensation” as “the money
payable under this title to a covered employee or the dependents of a covered employee.”
Furthermore, the Workers argue that the “ordinary, popular understanding” of the word
“compensation” refers to money. Because it is this Court’s role to use the “[o]rdinary,
popular understanding of the English language . . . [when] interpret[ing] . . . the plain
language of the text of a statute[,]” the Workers urge us to hold that compensation refers
to money in LE § 9-633. See Stachowski v. Sysco Food Servs. of Baltimore, Inc., 402
Md. 506, 516, 937 A.2d 195, 200 (2007). The Workers remind us that we have held that
“[i]f the language of the statute is unambiguous and clearly consistent with the statute's
apparent purpose, our inquiry as to legislative intent ends ordinarily and we apply the
statute as written, without resort to other rules of construction.” See Lockshin v. Semsker,
412 Md. 257, 275, 987 A.2d 18, 28–29 (2010) (citations omitted). Because LE § 9-633 is
unambiguous, argue the Workers, we need not engage in any statutory construction.
Rather, we should follow the clear and unambiguous meaning of the statute and hold that
credits should be applied in terms of total dollars paid.
The Workers also argue that because the legislative history clearly demonstrates
the intent to enact a dollars-crediting regime, we should conform our holding to that
intent. They present three sources of legislative intent meant to buttress their position.
First, they present the Senate Finance Committee’s report on House Bill 1278 (“HB
1278”)––the Bill that would become LE § 9-633. This report construed HB 1278 as
providing that “if an award of permanent partial disability under the State’s workers’
compensation laws is reversed or modified by a court on appeal, the payment of any new
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compensation awarded will be subject to a credit for compensation previously awarded
and paid.” The Workers argue that because this Senate Finance Committee report
summarizes HB 1278 as putting forth “a dollar credit, as opposed to a number of weeks
paid credit,” it is clear that the Legislature meant this bill to enact a dollars-paid crediting
regime. The Workers then refer us to the Maryland Chamber of Commerce legislative
position memo on the subject, which issued a favorable report on HB 1278. This memo
summarized HB 1278 as requiring “employers to be credited for the amount of workers’
compensation dollars previously paid, rather than the number of weeks paid, in those
instances where a permanent partial disability award is reversed or modified[.]” After
summarizing this Court’s holdings in Philip Electronics and Ametek, the Maryland
Chamber of Commerce explained that “HB 1278 imposes a consistent method for
crediting the employer for benefits previously paid; that method is to credit dollars and
not weeks.” Finally, the Workers direct us to the legislative testimony of William Kress,
who spoke on behalf of The Alliance of American Insurers. Kress’s testimony explains
that “House Bill 1278 will require all credits to be calculated based upon the actual dollar
amount of benefits paid out to the Claimant.” The Workers argue that these three pieces
of legislative history demonstrate that it was the intent of the Legislature, and the
understanding of all the parties who commented on the bill, that LE § 9-633 was intended
to create a dollars-paid crediting system.
Analysis
The Commission is an adjudicatory administrative agency. See W.M. Schlosser
Co. v. Uninsured Employers’ Fund, 414 Md. 195, 204, 994 A.2d 956, 961 (2010). Thus,
9
in our review we look through the decisions of the circuit courts and intermediate
appellate court, and evaluate the agency decision directly. See Frey v. Comptroller of the
Treasury, 422 Md. 111, 136–37, 29 A.3d 475, 489–90 (2011). As we explained in Board
of Physician Quality Assurance v. Banks, “[a] court's role in reviewing an administrative
agency adjudicatory decision is narrow[;] it ‘is limited to determining if there is
substantial evidence in the record as a whole to support the agency's findings and
conclusions, and to determine if the administrative decision is premised upon an
erroneous conclusion of law.’” 354 Md. 59, 67–68, 729 A.2d 376, 380 (1999) (quoting
United Parcel Service, Inc. v. People's Counsel of Baltimore Cnty., 336 Md. 569, 576–
77, 650 A.2d 226, 230 (1994)). Additionally, “an administrative agency's interpretation
and application of the statute which the agency administers should ordinarily be given
considerable weight by reviewing courts.” Banks, 354 Md. at 69, 729 A.2d at 381(citations omitted). This deference is nullified here by the conflicting decisions the
Commission has rendered in interpreting this facet of the Act. Because of the mixed
signals sent by the Commission, we will determine, without deference to the
Commission, whether any of the Commission’s decisions are premised on an erroneous
application of LE § 9-633.
When engaging in statutory construction,
[W]e begin our analysis by reviewing the pertinent rules. Of
course, the cardinal rule is to ascertain and effectuate
legislative intent. To this end, we begin our inquiry with the
words of the statute and, ordinarily, when the words of the
statute are clear and unambiguous, according to their
commonly understood meaning, we end our inquiry there
also.
10
Chesapeake and Potomac Tel. Co. of Maryland v. Dir. of Fin. for the Mayor and City
Council of Baltimore, 343 Md. 567, 578, 683 A.2d 512, 517 (1996) (citations omitted). If
our review of the statute does turn up ambiguous language, “the job of this Court is to
resolve that ambiguity in light of the legislative intent, using all the resources and tools of
statutory construction at our disposal.” Price v. State, 378 Md. 378, 387, 835 A.2d 1221,
1226 (2003) (citations omitted). We have found an ambiguity in statutory language
where there exist “two or more reasonable alternative interpretations of the statute.” Id.(citation omitted). It is only when faced with this ambiguity that we will inquire beyond
the literal meaning of the statutory language, and delve into legislative history.
Thus, our first task is to determine whether the use of the term “compensation” in
LE § 9-633 is ambiguous. LE § 9-633 states that amended or modified awards will be
paid “subject to a credit for compensation previously awarded and paid[.]” The
definitional section of the Act defines “compensation” as “the money payable under this
title to a covered employee or the dependents of a covered employee.” LE § 9-101(e)(1).
We have explained that “[w]hen the statute provides definitions of a particular term, we
use the statutory definition in determining the scope of the specific words used.” Bryant
v. State, 393 Md. 196, 202, 900 A.2d 227, 231 (2006) (citing Gilmer v. State, 389 Md.
656, 667, 887 A.2d 549, 556 (2005) (“The decision whether to utilize a plain meaning
analysis or an analysis based upon the ambiguity of a statute is made first by looking to
see whether the Legislature has provided a definition for the term in question.”)). Here,
the Legislature has defined “compensation” in the Workers’ Compensation statute,
11
rendering the term, as employed in LE § 9-633, unambiguous. It is clear that the General
Assembly intended LE § 9-633 to employ terminology in concert with the definitional
provisions laid out in LE § 9-101.
Because the Legislature intended “compensation” to mean “money” in LE § 9-
633, the statute requires a total dollars-paid crediting system. When we incorporate the
statutory definition of compensation from LE § 9-101 into LE § 9-633, the statute
explains that payment under an amended award shall be made:
(1) subject to a credit for [money payable under this title to a
covered employee or the dependents of a covered employee]
previously awarded and paid[.]
LE § 9-633. Because the statute clearly contemplates crediting employers for money
previously awarded and paid, this crediting should be measured in terms of total dollars
paid.
The Employers’ argument that “compensation” unambiguously dictates that an
employer is to be credited based on weeks previously paid is unavailing. They point to
the title of LE § 9-633, as well as the Act’s structure, which “makes sure that an
employee is compensated for each of the weeks during which he was, or will be, disabled
due to his work-related injury. . . .” To be sure, much of the Act is couched in terms of
payment over a period of weeks, and a duration determination is an essential part of any
permanent partial disability award. Indeed, were we to find the term “compensation” to
be ambiguous, the context of the statute as a whole would be one of the tools we would
use to divine how the term should be defined. See Kaczorowski v. Mayor and City
12
Council of Baltimore, 309 Md. 505, 514, 525 A.2d 628, 632 (1987). Yet we are not faced
with an ambiguous statute, and so need not use such contextual analysis.
Similarly unavailing is the Employers’ argument that this Court has held, albeit
before LE § 9-633 was enacted, that crediting should be done on the basis of weeks paid.
Each of the cases the Employers rely upon can be readily distinguished from the three
cases before us today.
In Philip Electronics, we held that the language of the Act as it then existed
“clearly and unambiguously demonstrate[d] a legislative commitment to the payment of
permanent partial disability benefits within a weekly framework.” 348 Md. at 218, 703
A.2d at 154. In that case we dealt with an injured worker whose award decreased in both
duration and weekly payment after the initial award was appealed. Id. at 213, 703 A.2d
at 152. Where Wright had initially been awarded $178 per week for 333 weeks, on
appeal her award was decreased to $144 per week for 200 weeks. Id. Before litigation as
to the appropriate calculation of credit for payments already made, Philip Electronics had
already paid Wright $32,772. Id. at 214, 703 A.2d at 152. The amended award totaled
$28,800. Id. Yet, under the amended award, Philip Electronics would still have to make
53 more weekly payments. Id. Philip Electronics argued that it should get credit for the
total amount of benefits paid rather than be required to make additional weekly payments
when it had already paid in excess of the total amount contemplated by the amended
award. Id. We disagreed, and held that “an approach focusing only upon the total
amount of money paid to a claimant is inconsistent with the purposes of the Act.” Id. at
215, 703 A.2d at 153.
13
In Ametek we considered whether the rule from Philip Electronics extended to
situations in which a worker’s award was increased. Ametek, 364 Md. at 144, 771 A.2d
at 1073. In that case, O’Connor was initially awarded $81 per week for 50 weeks. Id. at
145, 771 A.2d at 1073. On judicial review, O’Connor received an amended award of
$134 per week for 467 weeks. Id. During the appeals process, Ametek had already paid
the initially required 50 weeks at the rate of $81 per week. Id. O’Connor argued that she
was entitled to the total amount of the award contemplated by the amended award. Id.Thus, she reasoned, Ametek should be credited for the $4,050 it paid rather than the 50
weeks over which it had made the payments. Id. We disagreed, and held that the weeks-
paid calculation rule announced in Philip Electronics also applies when an award is
adjusted upward. Id. at 159, 771 A.2d at 1081. We explained that “[i]t simply will not
do to have different rules, depending upon whether it is the claimant or the employer to
whom the result is inequitable.” Id.These cases do not grant the Employers the support they seek. Philip Electronics
and Ametek were both filed before LE §9-633 took effect. Article III, § 31 of the
Maryland Constitution provides that “[a] [l]aw passed by the General Assembly shall
take effect the first day of June next after the session at which it may be passed, unless it
be otherwise expressly declared therein or provided for in this Constitution.” Md. Const.
art. III, § 31. The bill that created LE § 9-633 had an effective date of October 1, 2001.
Philip Electronics was filed December 12, 1997 and Ametek was filed May 10, 2001. As
we explained in Hardy v. State, 301 Md. 124, 132, 482 A.2d 474, 478 (1984), “there is a
presumption against statutory preemption of the common-law. This presumption is easily
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dissipated if the statute expressly overrides a common-law principle.” Here, LE § 9-633
does expressly override the rule we announced in Philip Electronics and Ametek. Thus,
the statute abrogates our previous holdings that crediting is to be done on the basis of
weeks paid.
We most recently addressed the question of how credit is to be applied when a
new compensation award is entered in Del Marr. This case arose in a different context
from the previous two because the change in Del Marr’s award was premised on a
worsening of his condition. Del Marr, 397 Md. at 313, 916 A.2d at 1004. Del Marr was
initially determined to have suffered a 20% industrial loss of use of his body, half of
which was due to the workplace accident, and half of which was due to a preexisting
condition. Id. at 312, 916 A.2d at 1004. The Commission awarded Del Marr $114 per
week for 50 weeks. Id. Del Marr later underwent corrective surgery and, pursuant to a
stipulation by the parties, the Commission amended its award to a 24% industrial loss,
with 14% disability attributed to the accident. Id. at 313, 916 A.2d at 1004. This meant
an increase in the award to $114 per week for 70 weeks. Id. Because this increase only
affected the duration of payments, there was no question as to how to credit previous
payments. Id. Sometime later, Del Marr filed a petition to reopen the case to reflect his
worsening condition. Id. The Commission entered a new award, this time finding that
Del Marr had a 33% industrial loss of use of the body, with 23% being due to the injury.
Id. The Commission set the new award at $223 per week for 115 weeks to follow the
previous award and was subject to a credit for previous payments made. Id. We were
asked to determine whether the credit should be calculated according to the money paid
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under the previous award or the number of weeks during which the payments were made.
Id. at 314, 916 A.2d at 1005. Applying Philip Electronics and Ametek, we held that the
crediting should be done on a weeks-paid basis. Id. at 319–20, 916 A.2d at 1008.
Del Marr is distinguishable from these cases because, unlike the modification on
appeal here, it involved a reopening of the case due to a worsening of Del Marr’s
condition after the award had been set. Id. at 313–14, 916 A.2d at 1004. “Reopenings”
are governed by LE § 9-736, instead of § 9-633. LE § 9-736 provides that:
If aggravation, diminution, or termination of disability takes
place or is discovered after the rate of compensation is set or
compensation is terminated, the Commission, on the
application of any party in interest or on its own motion, may:
(1) readjust for future application the rate of compensation; or
(2) if appropriate, terminate the payments.
In considering the appropriate rate at which the employer should be credited for
payments made under the original award, we held that “[t]he weekly credit approach is
fully consistent with the legislative scheme that the employer pay compensation at the
appropriate statutory rate for the disability that exists at the time the compensation is
paid.” Del Marr, 397 Md. at 318–19, 916 A.2d at 1007. Where there is a worsening of
condition, as in Del Marr, giving credit for weeks paid accomplishes just that—the
payments were appropriate for the period before Del Marr’s condition worsened. But
here, where there was error in the initial award, the payments were never sufficient and
so a dollar adjustment is necessary.
The Employers point us to our language in Del Marr in which we said:
We first note that neither § 9-630(d) nor § 9-633 state
anything inconsistent with our holdings in Philip Electronics
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or Ametek. Indeed, they are entirely consistent with the view
expressed in those holdings that a modification that serves to
increase or decrease compensation, whether occasioned by a
judgment emanating from a judicial review action or a
reopening, may have prospective effect only, achieved by
allowing a credit for compensation previously paid calculated
on a weekly basis. There is nothing in the text of those
statutes requiring a conclusion that the weekly credit
approach is impermissible in a modification arising from a
reopening that increases the compensation from a first tier to
a second tier. Absent some clearer expression of legislative
intent, we are not willing to balkanize the Workers’
Compensation Law by creating special pigeonholes with
different rules.
Id. at 319–20, 916 A.2d at 1008. They argue that this language demonstrates that this
Court has “addressed § 9-633’s impact on the credit awarded when a workers’
compensation award is modified by some scheme and found, consistent with its earlier
decisions, that the credit is to be awarded by weeks[,] not dollars.” We disagree. The
question of the meaning of “compensation” under § 9-633 was not before us in Del Marr,
and our observation regarding § 9-633 was made in the context of responding to Del
Marr's argument that a dollars approach was appropriate in that reopening case. As the
above language makes clear, we were only faced with the question of whether “the
weekly credit approach is impermissible in a modification arising from a reopening[.]”
Del Marr, 397 Md. at 320, 916 A.2d at 1008 (emphasis added).
In sum, Del Marr is inapposite and under the plain meaning of LE § 9-633, the
employer shall be credited with “compensation previously awarded and paid.” The word
“compensation” means “money payable” as defined in LE § 9-101. Therefore, we hold
that when crediting an Employer/Insurer for payments made under an award after the
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award is modified on appeal, credit should be given for the total dollars paid, not the total
weeks paid.
IN CASES NO. 82 AND 91, JUDGMENT
OF THE COURT OF SPECIAL
APPEALS AFFIRMED, COSTS TO BE
PAID BY EMPLOYERS W. R. GRACE
& CO AND FLORIDA ROCK
INDUSTRIES, INC.
IN CASE NO. 92, JUDGMENT FOR
THE CIRCUIT COURT FOR
BALTIMORE CITY REVERSED,
WITH INSTRUCTIONS TO REVERSE
THE COMMISSION AND COMPEL
CREDITING ON THE BASIS OF
TOTAL DOLLARS PAID. COSTS TO
BE PAID BY EMPLOYER RENT-A-
CENTER.
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