*1 a for further us, case under Rule 871 we remand the judgment and the appeal if no had been taken proceedings as appeal entered. See taken had not been A. 2d Long, 266 Md. Leatherman proceedings further shall conduct trial court evidence, otherwise, as of additional introduction tax, penalties necessary the amount of sales determine performance interest, payable in paid and and to ascertain the Board and Ruff between contract satisfy to the Board funds available whether shall amend its due. The court amount found to be opinion findings. required by Our declaratory as its order points thereby. finally decided all conclusive
Case remanded further proceedings in accordance with opinion; costs to abide the result below. COUNTY, COOPER v. WICOMICO
OLLIE RICHARD OF DEPARTMENT PUBLIC WORKS al. et Term, 8, September 1976.] [No. November 1976. Decided *2 argued The cause was J., before C. and Murphy, Singley, Eldridge and JJ. Smith, Digges, Levine, Orth, Richardson, Don E. with whom was Kenneth v. Heland on brief, appellant. for Theodore Porth, B. and Comblatt with M. whom Alfred Smith, brief, were appellees. Somerville & Case on the J.,C. opinion delivered the of the Court. Levine
Murphy, JJ., and J., dissent and filed a Eldridge, Eldridge, dissenting opinion Levine, J., page concurs at infra. granted
We compensation certiorari in this workmen’s case supplemental to determine whether award of compensation appellant Cooper, which increased the payable prior amounts to him under permanent award for disability, unconstitutionally total disturbed the contractual — other vested Cooper’s employer employer’s and the insurer.1 granted 1. Certiorari Special to decision Court
Appeals. See Maryland Proceedings Code Courts and Judicial Article, 12-201. § February 7, 1969, Cooper On sustained an accidental County. employment by injury in of his Wicomico the course Cooper On March found Commission totally permanently he be and disabled and ordered that week, paid compensation per rate not to at the of $45.33 total, $30,000 in maximum that time exceed at (1957, Repl. Vol.), Maryland Art. Code § (1) (a). By Maryland Chapter Laws of of 1973the 36; Assembly new subsection General added any permanently pertinent part provided in totally suffered disabled as a result before July July 1,1965, who, July 1,1973, was 1,1973, and after receiving permanent and total “shall benefits for allowance entitled (b)... paragraph continue calculated under [to] *3 employee is entitled to receive weeks that the number of (b) Paragraph original of 36 his award.” benefits under are to be how the additional allowances directs case, calculated; under the order of the the result August 1, 1973 of Workmen’s Commission directing comply ch. appellees to with the mandate of the weekly to increase the of the Laws of Cooper limit of to and the to $45.33 $57.96 $38,397.00. $30,000 payable from the total County, appeal On the Court for Wicomico Circuit argument appellees accepted of the that ch. Judge Pollitt constitutionally retrospectively, applied could not should, clearly that it since although legislature intended adversely affect would divest otherwise to do so of the or other vested contractual pay award to increasing obligation under the basic their Judge injury. of time of the maximum set the law as holding Commission, 832 was that ch. reversed the Pollitt and invalid. unconstitutional operational if was correct think the lower court We pay more requires employer or insurer to effect of ch. 832 pay law in effect at the under the it was than basis of a generally held that the injury. It is time of the the amount is and that compensation award contractual thereunder or insurer cannot be retrospectively. increased
In
Corp.,
State Industrial Commission v. Nordenholt
263, 271,
(1922),
U. S.
S. Ct.
600 intelligent comprehension adjust their rates with they may upon to meet.” demands be called country throughout the have held that A number of courts legislative increasing give enactment effect to a employee greater payable to an to a sum than amount impermissibly alter at the time would em existing between of an contract term a substantial insurer). (and derivately as to an ployer and an Com example, Workmen’s See, Loveless v. State 264, 127 Commissioner, 184 S.E.2d 155 W. Va. pensation (E.D. (1971); Supp. Co., F. 489 v. G. 206 Mitchell U.S.F. & 471, 1962); Sons, 72 N. M. v. K. Barnett & Tenn. Noffsker 768, 443 (1963); Wilson, 201 P. 2d Lyon 2d 1022 v. Kan. 384 P. (1968). Derby Developing 314, A. See also Preveslin v. & 319 129, Co., 151A. 518 112Conn. Maryland with these law is consistent
We think that
Association, 226
In
v. Balto. Butchers
Crowner
decisions.
(1961),
recognized
606, 612-13,
175
2d 7
the Court
Md.
A.
obligation
his
employer’s
of an
contractual nature
of the contract of
employees
it observed that the terms
when
factors,”
specific
that the claimant’s
hire
as to all
“were
provisions
“in
with the
employment
insured
accordance
law,”
“[b]y
reason
Compensation
Workmen’s
of the
incurred certain
contract of hire
Compensation law.” Once these
obligations
formally
an order of the
obligations
determined
are
Commission,
rules of
Janda v.
Workmen’s
(1964),
161, 169,
The facts of case all record The before us not does contain facts which afford us the — opportunity go to determine and the trial court did — right into the matter whether substantial vested appellee any obligation either was divested or either had substantially During passage increased. the course its through Assembly, the General ch. 832 was amended provide: Fund, “Whenever the State Accident insurance or carrier self-insured makes a 36(10) allowance article, of this he shall Subsequent Injury [annually reimbursed from the Fund by payment made the State The Fund was Treasurer].” created ch. 637of the Laws of now codified as 66§ Code; original Art. 101 of purpose its was to create pay previously Fund to injured employees disabled or who subsequent injury sustain a disabling not of itself which, coupled but impairment, with the renders the employee permanently Subsequent disabled. Injury See Pack, Fund 242A. primary 2d 506 payments by sources monies for Fund employers, insurance carriers and the State Accident Fund 5%) percentage (originally 1%, now “on all awards rendered permanent disability such ... death” and interest earned on the Fund from investments. equals Whenever the Fund $1,000,000, or exceeds no further contributions are but when the Fund is reduced $500,000, below the Commission determines Fund the next three months probably go $500,000, cause below contributions must be resumed. Gange
In Lumber Rowley, Co. v. 326 U. S. 66 S. Ct. L. Ed. 85 Court dealt with a Washington statute which was described neither employers’ liability ordinary nor act workmen’s compensation law, but rather as an industrial insurance *6 (a “having all the features of insurance act” statute Fund). Injury applicable Subsequent to the
characterization by provided Washington a state Fund created statute The solely paid employers. Awards were annual on assessments employee employer the and the nor from the Fund neither moneys when in “the interest the Fund because had a vested by moneys, the public held and administered are collected they statutory purpose state, pursuant albeit injured workmen fund’ for the benefit of a ‘trust constitute controversy in dependents.” S. 301. The 326 U. at and their Washington which increased Gange from a statute stemmed employee apply for could the time within injury final compensation for an for which additional employee applied after made. The award had been law but within the expired under the former had limitations was awarded additional period new statute and set the the amendment compensation. The asserted that applied retroactively to its substantial detriment had been rights had been violated. and that its constitutional rejected employer’s claim The Court the unconstitutionality ground injury substantial on the that no employer. on record the It said that had been shown although pay it would have to claimed that award, will result from is not asserted that this burden “it appellant’s or in that increase an increase in rate fact and necessarily from allowance will follow at S. at 303-304. Court said further award.” 326 U. showing all the facts “in the absence of evidence factors, problematical concerning entirely the other it is or, so, if it will will follow whether whether an increase wholly and infinitesimal or substantial its mathematical so, appellant. being appellant’s ultimate effect This down, record, nothing complaint than comes on the more possibility injury in the bare of some the future.” they Appellees claim that will suffer substantial operation challenged they because statute administering program must bear the cost of and — — earnings is the monies suffer loss use paid out.
Appellees’ unconstitutionality they, claim because and Subsequent Injury Fund, to administer program plainly the first instance without merit in Comm’r, view of Allied American Co. v. 150A. (1959); case, 2d 421 predecessors our held that constitutionally insurers could be forced to administer the settlement of claims the Unsatisfied Claim and Judgment Appellees’ Act. claim of substantial harm because money of loss of use of they their between the time benefits to an and the time require explicit reimbursement the Fund will precise substantiality evidence of up sufficient mount Gange standards of and Allied American for *7 prevail. hand, On challenged the other if the law read with pertinent parts other compensation of the workmen’s law (cid:127) requires pay the insurer to the annual on assessment they temporarily monies 832, out under ch. appear
would to have suffered substantial harm. And supplemental payments whether the required to be made deplete under ch. 832 will so require the Fund as to that additional assessments be made is a matter no light by is disclosed the record. We conclude that it is public interest this case be determined on its substantial merits and since the record before us is deficient designated particulars, we shall remand under Maryland Rule 871 for proceedings, further including the taking testimony. provisions 871,
Consistent with the requiring of Rule we questions properly determine all presented, we no find appellees’ argument merit the classification of by Chapter beneficiaries drawn 832 amounts ato denial of equal protection violative of the Fourteenth Amendment to the Federal Constitution. Bowie, See City Bowie Inn v. 230, (1975). 335A. 2d 679 without,
Case remanded affir- mance or reversal for further proceedings consistent with opinion. Costs to abide the result. dissenting: J., Eldridge, 1973,
By Chapter the Workmen’s of the Acts (1957, Repl. Yol., Law, Maryland Code (10). 101, add Supp.), Art. was amended to 1976 Cum. § receiving provided that The amendment disability permanent caused for a total benefits July 1973, July 1, 1965, 1, occurring but after before Act, paid supplemental allowance. effective date a formula is calculated under The amount of this allowance paid, provided in to be the Act. The total allowance, however, including supplemental is not to weekly provided in Art. benefits exceed the maximum (2). only applies supplemental allowance The § weekly date to be made after effective benefit period of the and continues for the of the amendment original award. paid claimant supplemental is to be allowance the insurance carrier
in the first instance However, employer. under Art. self-insured to be party paying allowance Subsequent Injury Fund, agency. a State reimbursed employers or by payments maintained The Fund is awards on a assessment all insurance carriers based 5% permanent rendered agreements approved by death, including settlement *8 66 Compensation Art. Commission. § Workmen’s only in the where the monies payments These Injury to an amount below Subsequent Fund are reduced (4). 101, $500,000.00. 66 Art. § is to those supplemental allowance allow The effect of the disability permanent total receiving benefits for who are permissible maximum award under current receive the provisions Workmen’s statute. of purpose clear: to alleviate the effects of the amendment is payments under may future which have rendered inflation although totally inadequate. Thus, awards retrospective applicable class is allowance receiving claimants, namely benefits for those of occurring permanent by total caused July 1, 1973, prospective in before it is that it affects payments to be made after the effective date of the employer or is amendment. And because the insurer to be Fund, Subsequent Injury reimbursed liability employer of is the insurer not increased over original that which was fixed award and determined injury. in the law effect time of the at the features, 101, I Because these do not believe that Art. impairs obligations (10), unconstitutionally contractual § 1, in violation of Art. 10 of the United States Constitution deprives employer rights property of vested without process in due law violation of the Fourteenth Constitution, Amendment United States as the appellees contend. accepting arguendo obligation
Even
fiction
that the
employer
compensate
employee
injuries,
his
here,
nature,
the circumstances like
is
in
those
contractual
compare
606,
Ass’n,
Crowner v. Balto. Butchers
(1961),
2d
Education,
A.
with
McAllister
Board of
Kearny,
Super. 249,
(1963),
N.J.
191 A. 2d
217-218
prohibit
Legislature
the contract clause
does
enacting
contracting
laws affect the
“legislation
individuals.
If
legitimate
is addressed to a
end and the measures taken are
appropriate
reasonable and
end,”
to that
it
not be rendered
despite
unconstitutional
obligations.
incidental
effect on contractual
Home
Building
Blaisdell,
& Loan Ass’n v.
290 U. S.
54 S.
231, 240,
Assuming
Ct.
Additionally, contend that Art. 36§ deprivation results right of a vested without due process Appellees argue of law. that an has a right vested having obligation his to an deter-
606
injury,
time of
and that
effect at the
mined
the law
would increase this
supplemental allowance
payment of the
right.
employer
depriving
of a vested
obligation,
thus
(10)
liability of the
If
36
were to increase the
the effect
§
obligation
employer
impose a new
on the
for
employer or to
(10),
occurring prior
to the enactment
36§
might arguably be
But
merit
this contention.
see
there
Brennan,
Operator’s
v.
372
Independent Coal
Ass’n
National
(D. D.C.),
216,
S.
42
Supp.
aff'd,
16
419 U. S.
95 Ct.
F.
(1974)
(requiring
172
of benefits
L.Ed.2d
occurring
Lung
death
Act for
Black
Benefits
be
prior
date
the Act held not to
violative
to the effective
Amendment);
Due Process Clause of
Fifth
Co.,
App.
Contracting
55
v.
269
Div.
Schmidt Wolf
N.
per curiam,
162
295
Y.
65
N.Y.S.2d
aff'd
(statute
(1946)
weekly
increasing maximum
N.E.2d 568
occurring prior
compensation payments,
injuries
statute,
be
where
held to
constitutional
effective date of
paid
periods
after
compensation was to be
increased
date);
Engineering
All
the effective
Price v.
American
1974)
(Del.
(a supplemental plan,
Company,
A. 2d 336
Maryland
present
law
quite similar to the
involved
Clause);
case,
Due
was held not to violate the
Process
Lahti
(an
(1959)
Fosterling,
Mich.
However, employer’s does increase merely obligation original above the award. Rather employer pay insurer that the requires regular weekly payments, it then allowance with the provides agency, Subsequent Injury Fund, that a State shall reimburse the for these on an Thus, only possible injuries annual basis. *10 payments (1) of the of the use the loss employer are mere and the to reimbursement advanced deplete the would the funds so reimbursed possibility that additional Subsequent Injury to the extent Fund generally be would employers or insurers payments from required. payments the possibility to
This that additional mere not, my might in Injury Subsequent Fund employer any injury caused view, show to sufficient supplemental The law by payment allowance. the of the provides creating Subsequent Injury for a Fund the by compensation plan the State mandatory administered employers supported an on all insurers or and assessment Fund, for upon prior If the awards them. based reason, require impaired were so as to additional whatever employers, payments, all insurers or self-insured advancing allowances, would those Payments payments. to required make the additional general are more the nature of a tax assessed Fund administering government program. expenses of cover Certainly fact the State choose increase increasing program, possibly benefits employers, does not due from all insurers or contributions deprivation any right employer in of the constitute a Amendment’s Due Process violation of the Fourteenth 607, 150 Comm’r, Allied Co. Md. Clause. See American involving legislative program, A A. 2d 421 similar already receiving supplemental payments to those providing Second for reimbursement from a benefits and generated by Contingency an Injury and Fund with funds carriers, employers was held additional tax on and insurance Delaware not to violate either the Court of Due Clause in Price v. All Contract Clause Process Company, supra. Engineering American my view, In no there would be violation constitutional if indirect costs even some additional supplement from were to result Consequently, purpose in I do not see allowance. remanding court additional this case to the circuit
findings
Additionally, Gange
of fact.1
Rowley,
Co. v.
Lumber
S.
U.
66 S. Ct.
“A mere increase under a publicly plan, and administered accident insurance designed operate upon general to at cost based and experience arbitrary individual rather than at an figure, adequate procedural and surrounded with safeguards arbitrary action, against would not obviously arbitrary seem to be so harsh its Apparently, 1. one issue of law is to be decided circuit on court majority challenged remand. The pertinent parts “if read states that law with other requires of the Workmen’s Law the insurer they temporarily pay annual assessment the monies out under harm,” appear Ch. have suffered would substantial upon Whether under Art. assessment allowances awards which the 5% Subsequent Injury Fund is básed includes statutory clearly question is a matter of construction. This is of law which should be decided this Court. generally could be employers effect upon beyond scope question to be without said of the due power or in violation regulatory state’s federal Constitution. prohibition of the process Amendment, through the due “The Fourteenth clause, protection from process assure does not injuries regulatory powers so states’ speculative. Some remote, contingent must be harm and more immediate substantial concerning question justiciable present a shown to appears injury, power. The as it the state’s record, so substantial so certain nor neither showing, justify finding, have been appellant’s substantial award.” invaded allowance and not remanded to Accordingly, appeal was dismissed and proceedings. court additional state the Acts of reasons, I Ch. 832 of For believe that these judgment circuit and that the 1973 is constitutional should be reversed. court joins in that he
Judge me to state Levine has authorized *12 expressed in this dissent. the views