*1 for consideration of this issue. If the appellate court finds there, error Runge not, is entitled to a trial. If new judgment of the Circuit Court for Cecil must County affirmed.
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS IN THIS BE BY COURT TO PAID THE RESPONDENT. COSTS IN COURT OF SPECIAL TO ABIDE THE APPEALS RESULT.
v. John W. TENEYCK et al. 36, Sept. Term,
No. 1989. Appeals
Court of Maryland. Nov. 20,1989. Motion for Reconsideration Denied Dec. *2 (J. Curran, Jr., Voelkel, F. Asst. Gen. Atty. Joseph Joanne Gen., Towson, Gen., Asst. all Atty. Sophia Swope, Atty. L. brief), for appellant. on Arnold, Bacot, O’Conor, J. D. James P.A.
Herbert Janet II, brief, Jr., Hershberger, on Law Offices John W. Baltimore, for appellees. C.J., ELDRIDGE, MURPHY,
Argued before COLE, McAULIFFE, RODOWSKY, ADKINS and BLACKWELL, JJ.
ADKINS, Judge.
The issue in this case is workers’ whether (1957, Article Maryland Cum.Supp.), Code 36(3)(d), provision a “scheduled member” of the Work § Article, Compensation applies qua men’s when the claimant Subsequent Injury lifies for from the Fund (1957, Repl.Vol.), Code Article pursuant Maryland 101, 66, to a “sched prior impairment and the worker’s The appellant, uled member.”1 (the Fund), the circuit Fund asks this Court to reverse holding compensate that the Fund must the claimant court’s (1957, Maryland Repl.Vol.), 1. All references to 66 are to Code (1957, and references 36 are to Md.Code Article Cum.Supp.), Article 101. for his pre-existing impairment according to scheduled provision. member
I. Appellee Teneyck (Teneyck) John was right blinded his eye age eight.2 6On he his May injured lower back place while at his employment, Montgomery Village Amoco Station. (the Compensation Workmen’s Commission Commis-
sion) decided that
claimant sustained a permanent partial disability under “other cases” 36(3)(j)] amounting to [Article 55% industrial loss of use as a result the injury and right back eye; due to the 25% accidental is due pre-existing 30% conditions. The Commission ordered pay $109 weeks, and ordered the to pay Fund weeks. $109 *3 against The award the Fund was under computed the provision “other cases” 36(3)(j). of § Teneyck appealed this order the Court Circuit for Frederick County arguing that for compensation prior his impairment 36(3)(d), should have been assessed under “scheduled member provision.” The circuit court agreed with Teneyck, ordering the Commission to the Fund’s revise weeks, for liability 36(3)(d). under $109 granted This petition Court the Fund’s for writ certio- rari to decide whether provisions” “scheduled member Compensation Workmen’s Act apply below, Fund awards. For the reasons affirm we circuit court decision.
II. Section 36 of Article 101 declares that employee “[e]ach ... compensation entitled to receive under article shall Teneyck’s employer employer’s compensation and the insurer also appellees. position they espouse are Since substantially is Teneyck’s, identify appellees collectively same as under name.
§2§> following sched- the same accordance with receive ule____” One forth a of “schedules.” It then sets number 36(3)(d), provision, a “scheduled member” of them is § (computed the amount of establishes which specific number multiplying wage by factor by weeks) produced paid permanent partial disability to be certain enumerated parts reason of loss or loss of use of by Loss of ah calls for 250 weeks. body. eye other cases applies [permanent to “all 36(3)(j) Section specifically other than those enumerated partial] disability (i)____” “other (c) As to these paragraph through cases,” por- is directed “to determine the the Commission of the em- or which the industrial use percentage by tion and in impaired injury as a result ployee's body was take into determining portion percentage or ...” [that] compensa- of factors and to “award consideration a number to 500 as the determined loss bears proportion tion such weeks.” (1) explains the Fund. Subsection
Section deals with impair- a permanent who has employee [w]henever congeni- any or disease or previous ment due to accident or is to be a hindrance likely tal condition or is which subsequent disability incurs employment, to his obstacle personal injury, reason of a which by or resulting permanent partial required this article substantially greater by total effects of the reason of the combined resulted than that would have injury alone, his from the subsequent *4 only compensation insurance carrier shall be liable However, injury. article for such under this payable the or compensation to which addition to such liable, completion after the carrier is his insurance article, employee the provided by therefor payments to receive ... additional shall be entitled the “Subsequent as special from a fund be known in the manner Fund,” purpose, for such created section, described hereafter in this it the being intent of this section to make the total payments which such employee shall become equal entitled to the that would be due for the combined effects of the impair- ment and injury resulting permanent total greater a substantially permanent partial disability.
Benefits from the Subsequent Injury Fund hereunder payable shall not unless the be combined effects resulting from previous impairment a and a subsequent accidental injury result a disability exceeding 50 per- whole; centum as ... a and that the previous impairment and subsequent accidental is each com- pensable, Commission, as determined period of not than However, less 125 weeks. the previous shall be determined as of the date of the subsequent injury. argues
The Fund that according to these provisions, the compensation it computed owes should Teneyck be under 36(3)(j). The Fund legislature asserts when the enacted the “scheduled adopted member” it presumption to the effect the loss of a “scheduled member” has on an employee’s earning capacity. Cox v. (D.Md. American Store Equip. Corp., F.Supp. 1968). Believing that on the effect earning capacity caused by the loss of a member can least roughly estimated in advance, Fund, says legislature decided that it was fair to make those estimates and them incorporate into the act through provisions. scheduled member In con- trast, the “other cases” provision does not contain similar presumption, leaving the determination of the effect on earning capacity discretion of the Commission. Id. In deciding a nonscheduled effect injury’s earning on capac- ity, Commission considers including various factors “the nature physical injury, occupation, experience, training age of time injured employee at the injury....” (1957, Md.Code 1985 Repl.Vol., 1988 Cum. Supp.), Art. 36(3)(j). *5 66(1) invoked, that is the Com-
The Fund insists when § the Fund’s with liability mission can and should determine must read hindsight. the benefit of Commission §§ in considering light the criteria of together, and 36 § surrounding prior impairment the facts the claimant’s The Fund liability. of the Fund’s determine the amount is section allows the 36(3)(j) only argues § 66(1). It con- of the factors set forth consideration § operate must under the flexible tends that the Commission so it can exercise discretion approach 36(3)® § Although approach may assessing liability. the Fund’s (as case) pay- than that in this less produce other 36(3)(d), produce under it could more under able § circumstances. between the
Teneyck, obviously, interprets
interplay
argues
recovery
He
from the
differently.
subsections
First,
deter-
two-step process.
Fund is a
the Commission
66(1)
mines
the claimant meets the criteria of
whether
making
responsible
part
employee’s
the Fund
the claimant’s
If the Fund must contribute to
recovery.
computed
the amount of that
is
recovery, then
contribution
36 as is done in
case.
by turning
any
of §
depend upon
prior impairment
The results then
whether the
injury.
a “scheduled
or an “other cases”
Once
is
member”
determined, no consideration need be
liability
the Fund’s
66(1).
contends that
given
Teneyck
to the factors
also
is a
36(3)® precludes its own use when
Teneyck
“scheduled
We think
has the better
member.”
argument.
III.
require
us
us
parties
The contentions of the
now before
murky depths
of Article
Its
again
explore
once
our
with
engaged
often
have
attention
opaque provisions
Nevertheless,
again
shall once
seek
frequency.3
some
patchwork
the article has often been amended in
3. Enacted
66(1)
style
quotation
well illustrated
from
fashion.
Its
and effectuate the intent
legislature,
discover
Rucker v. Comptroller
Treasury,
*6
564-565,
1060,
(1989),
555 A.2d
1063
this time
respect
with
66(1)
36(3)(d)
relationship
and 36(3)(j).
§§
Because there is a lack of relevant legislative history, we
language
must
on the
of the
rely substantially
statutes
goals
the context of the
and
seek
objectives they
to achieve.
Baltimore,
505, 513-516,
Kaczorowski v.
309 Md.
City of
628,
(1987).
525 A.2d
632-633
of the
purpose
Subsequent Injury Fund established
by
encourage
66 is to
to hire
employers
handicapped
Sons,
54,
workers. McKenzie v. C.C.
311
Kottcamp &
Md.
57,
703,
(1987);
532 A.2d
704
Subsequent Injury Fund v.
628, 633,
Thomas,
671,
(1975);
275 Md.
342 A.2d
675
Subse
Pack,
306, 308,
506,
250 Md.
quent Injury Fund v.
242 A.2d
508
This
if
purpose
by assuring
achieved
that
hires a
employer
prior impairment,
worker with
and if
a compensable injury
worker suffers
on the current
then the
job,
only
is liable
for the subsequent
and not
injury
prior
the “cumulative effect of the
and
Pack,
308,
subsequent injuries.”
Section also establishes conditions that must exist brought (1) before the Fund is into the picture. They are: 629-630, also, pp. supra. e.g., (page type See one-third of sentences). only broken down into three A review of the annotations Code, courts, Maryland frequently reveals Article how both federal, upon provisions state and have been called to construe the Maryland’s Compensation suggests Workmen’s Act. This the desira- bility of both formal revision and substantive clarification. impairment previous effects that the combined in a must result (2) whole; and percent exceeds 50 each are subsequent injury and the previous Commission,” for not by determined compensable, “as seen, the Commission As have than weeks. less case. conditions requisite found the and when then, operates us the Fund tells how Section not tell us is how it does play. into What it comes properly the section is when payable the amounts compute information. rule, 36 contains this general invoked. As observed, has Appeals Special As Court deter- in Section are no [tjhere manner, benefits amount, paying or method of mine the *7 can Fund; these matters against made for ... awards of the provisions reference to only by determined be contained, setting 36, schedules therein and the Section calculating in to followed the formula be forth perma- for employees ... injured of due amount awards disabilities. partial nent Md.App. Chapman, Fund v.
Subsequent Injury curiam, 262 Md. 873-874, 375-376, per 274 A.2d aff'd McKenzie, An (1971). supra; also 277 A.2d See para introductory in its Motor, Section supra. chor to entitled employee ... makes it clear that graph, “[e]ach article shall receive under this receive ” [empha schedule following with the same accordance employee. is such an supplied]. Teneyck sis pertaining comprehensive 36 contains Section distinguishes It between of computation to the awards. (subsec- total disability, permanent e.g., different kinds of (2)), (subsection permanent and (1)), total temporary tion in the last (3)). disability (subsection Teneyck’s partial Thus, turn to subsection category. mentioned into deal- paragraphs itself That subdivided subsection (a) Paragraph impairments. or ing injuries of types with partial case makes it clear that “[i]n [the] character but in quality, compensation shall paid to the employee the rates enumerated ” periods as [emphasis supplied]. (c) Paragraphs follows (d) both deal weekly with flat payment periods for loss or loss use of specified parts body. Paragraph (j) “all covers ... of disability specifi- cases other than those cally (c) (i)____” enumerated ... in paragraphs through The statutory scheme and the statutory language combine to persuade us that loss loss of use of a bodily member listed one of the provi- scheduled member sions is to be calculated that provision; paragraph (j) only applies, language explains, as its “other cases.” We intimated as much Anchor Motor: ..., Section 36 of Article 101 delineating benefits pay- ..., able claimants is divided into several subsections apply types disabilities, to various following of which are to this applicable appeal [involving among things other prior impairment by of injury virtue 36(1), scheduled pertaining to permanent members]: § disabilities; 36(3) 36(3)(c)-(i) total ], applying to [now permanent partial (enumerated disabilities injuries); 36(4) 36(3)(j)], pertaining permanent partial [now § (other, cases). disabilities non-specific Motor, 1,.363 Anchor 278 Md. at n. A.2d at n. The evolution supports of Article 101 analysis. our Prior occupational introduction provisions, disease currently (1957, Maryland codified as Code 1985 Repl.Vol.), *8 101, 22-26, Article and the Subsequent Fund Injury §§ provisions, provided, the in 36, article com- methods for § puting compensable awards for impairments. Two methods existed for computing in permanent partial awards disabili- cases, ty one using provisions, “scheduled member” the other using the “other cases” provision. When occupational 1939, disease sections were added in legis- lature did not introduce a calculating new method for of amount for these in Except diseases. few specifically instances, enumerated it intended “scheduled provisions member” “other cases” to be
635 (1957, Repl.Vol.), Md.Code applied appropriate. 101, 22(a). Art. §
Thus, introduced Assembly the time the General award, 1945, it that an concept Fund was established 101, to under Article was be impairment compensable 36, appropriate to the schedule computed pursuant § 66 indicates that Nothing noted. within unless otherwise § the method of changing had intention of legislature any or 36 for “scheduled members” compensation laid out § “other cases.” provi to specify
The has been careful legislature Fund, it intends not to the when applicable sions of 36 are § See, 36(l)(c) (Fund not when result. involved e.g., § (serious executed), 36(3)(a)(iii) certain waiver § cases),4 36(3)(Z)(certain apply does not to Fund provision § of provisions “do provisions apply survival not due 66”),5 36(6) permanent disability (apportionment § not infirmity disease or subsection part pre-existing 66(1) met). The are applicable requirements where contain no disclaimer provisions scheduled member of this sort. 36 mean what conclusion is that the
Our
Assem-
in the context of this case. The General
they say,
for loss or loss of use of certain
decided that awards
bly
specific periods.
appears
to run for
That
members were
indicated loss or loss
legislative
determination that the
effect on industrial loss
legislatively-decided
of use has a
preempted
respect
discretion is
with
use. Commission
a scheduled member is involved.
question,
when
pay
disability”
apply
4. The “serious
rates
when an
must
resulting
for an
from
claimant for 250 weeks more
cases,
impairment(s)
arise from at least
"one accident.” In Fund
Thus,
language displays legislative
two incidents.
the "one accident”
injury”
impose liability
in a
case.
purpose not to
on the Fund
“serious
356,
Co.,
Md.App.
General Assembly made various 36 schedules applica ble generally compensation all payable under Article 101. It did not the Subsequent exclude Injury Fund from the 36(3)(d). provisions 36(3)(d) We hold that applies so, In doing case.6 we give 36(3)(d) effect to both §§ see Hosp. Sinai v. Dep’t 36(3)(j), and Employment, 309 28, 39-40, 382, Md. (1987) (court A.2d give should parts statute, effect all and not render legislative provisions surplusage), and carry goal we also out another 66(1): of §
to make the payments total which such shall employee become equal entitled the compensation that would be due for the combined effects injury resulting in a substantially greater .... permanent partial disability. Pack,
As we explained
the employer
for the
pays
second
and the Fund
pays for “the balance of the
award,
total
so that
the sum of the two payments [will]
equal the compensation provided by statute
com
for the
previous
bined effects
both the
disability and
subse
quent
308,
injury.”
6. The dissent
contends that this
of the statute's
may
produce illogical
true,
sometimes
results.
If that
is
it
problem
have learned to live with in the
world
worker
compensation.
long ago
Chvojan,
As
as Bata Shoe Co. v.
(1947),
52 A.2d
we observed:
claimant,
The fact that a
compensation
who receives
for both a
injury, may ultimately
first and a second
receive more than the
single
maximum
injury,
allowable for a
not
materi-
al. The
law
logical
fails to meet the test of
consisten-
cy many respects----
Act,
duty
It is our
to construe the
not to
it.
revise
Sons,
54, 56,
See
Kottcamp
also
v. C.C.
&
McKenzie
Md.
532 A.2d
*10
of
the purpose
said that
has
Special Appeals
of
The Court
a
suffering
employee,
an injured
when
66 is “achieved
§
of the
than
greater
total
50%
either
disability,
in
receipt
of
whole,
is assured
as a
body
of
the law
provided
not less than
amount
the claim
from which
of the
at the time
Maryland
Son, Md.App.
20
T. Clark &
Leach v. John
arose.”
concerned,
(1974).
Teneyck
far as
So
114,
McAULIFFE, dissenting. Judge, intended to Assembly the General agree not I do for deter- disability section scheduled use of the mandate in degree previous of mining the contem- 66(1) of Article 101 Fund cases. Section per- of the the determination requires, indeed plates, from the combined resulting disability of industrial centage disabili- and a previous impairment effects of a body of the as a whole. disability made terms ty be case did the Commission precisely That is what of percent of 55 disability finding combined circuit court’s argument, represented to us that the the Fund 7. At oral practice contrary general in this case was decision support this asser- presented documentation to It no Commission. tion, Kottcamp & Compare v. C.C. Teneyck denied. McKenzie 54, 62, (1987), Sons, was in which there A.2d 707 particu- thinking the Commission on a general agreement as to the decision, reported a “scheduled mem- one point. But in at least lar 66(1). pursuant applied to the Fund provision 36 was ber” Co., Md.App. A.2d 785 As was Barbee v. Hecht (and McKenzie, Assembly also has amended § the General case in Barbee, nothing 36) "but has done on several occasions since practice in" Barbee. This factor modify reflected the administrative McKenzie, 66(1)----” weight of § in our construction “also entitled A.2d at 707. Md. at whole, made up percent a 30 disability industrial result- ing previous from the loss of sight in one and a 25 eye percent from disability resulting the current inju- industrial ry. approach The majority’s artificially, unnecessarily, legislative deviates from the intended provides scheme and a windfall to the employee. Instead properly allowing the Commission to determine the percentage previ- actual claimant, ous industrial suffered by a the majority upon using insists a schedule established for an entirely different purpose.
The schedule set forth in Section 36 serves useful purpose avoiding litigation endless concerning predic- *11 tion of the extent of disability industrial likely result from an anatomical suffered disability part of the body. However, as may useful the schedule in the be initial awarding future, of benefits for the it is unnecessary and inapplicable when the task is the retrospective of evaluation a pre-existing disability. case,
In the instant the could did Commission deter- mine the overall industrial the disability that loss an eye had actually caused this claimant at the time the current occurred. The Commission found that disability that percent was 30 of the as a body whole. The effect majority’s require decision is to the finding of this pre-existing disability deemed necessarily per- to be cent of the as a is body whole. This so because the schedule established by Section awards 250 weeks eye, loss and under the compen- current worker’s sation law whole body measured terms of 500 weeks. See Art. 36(3)(j). Adding percent the 50 pre-existing disability percent disability Commission found to have resulted from the current injury produces an percent overall as a whole. This is a disability have, that this claimant does not according to findings Commission, and it is a disability that should not be awarded. The majority.has findings rewritten the Commission a manner I legisla- intent of the the overall inconsistent with believe concept. Fund adopting ture of the Circuit Court the judgment I reverse would County. Frederick