These two cases, which we have consolidated for disposition, call upon us to construe Maryland Code (1991 RepLVol., 1997 Supp.), § 9-610(a) of the Labor and Employment Article (“L.E.”), which is known as the “governmental employee offset provision” of the Maryland Workers’ Compensation Act (hereinafter “the Act.”)
1
In Case No. 579 (September 1997 Term), the Circuit Court for Baltimore County (Cadigan, J.) granted summary judgment in favor of appellee Baltimore County (“County”), ruling that workers’ compensation disability benefits awarded to appellant Mary E. Wills were offset by her length of service retirement benefits, even though her receipt of retirement benefits was unrelated to the injury for which she was awarded workers’
As neither case presents a genuine dispute of material fact and the granting of summary judgment in each case was legally correct, we shall affirm the judgments in both cases.
FACTS
Wills v. Baltimore County
On March 26, 1992, Mary E. Wills, a clerical worker employed by Baltimore County in its Office of Aging, fell off her chair at work and sustained an injury to her back. Wills
Wills filed a claim for benefits with the Workers’ Compensation Commission (“commission”) and on August 31, 1992, the commission awarded her temporary total disability benefits of $300.00 per week. The County paid Wills her full salary in lieu of that award. Approximately six months later, on February 8, 1993, Wills retired. Effective February 11, 1993, Wills began receiving a service-related retirement benefit of $300.23 per week from Baltimore County.
On March 4, 1994, the commission held a hearing in Wills’s case on issues of accidental injury, causation, and pre-existing disability. Wills testified that she was receiving a retirement benefit from the County. The County did not then seek to offset the retirement benefits against the workers’ compensation award, under L.E. § 9-610(a). The commission passed an order on March 17,1994 attributing 75% of Wills’s injury to her accident and the remaining 25% to a pre-existing condition. It further directed the County to pay Wills permanent total disability benefits of $329.00 per week, beginning as of January 1, 1993, for 500 weeks, not to exceed the sum of $164,500.00 allowable under “other cases,” with continuing benefits to be assumed by the Subsequent Injury Fund (“the Fund”).
Baltimore County and the Fund filed a petition for judicial review of the commission’s decision in the Circuit Court for Baltimore County. They did not raise the issue of an offset under L.E. § 9-610(a). On November 9, 1995, the circuit court affirmed the commission’s award.
In January, 1996, the County filed issues with the commission, requesting that it offset Wills’s workers’ compensation benefits by the amount of her retirement benefits. The commission held a hearing on the County’s request on May 20, 1996. On June 7,1996, it issued an order denying the request. The County and the Fund filed а petition for judicial review in the Circuit Court for Baltimore County. Motions for summary judgment were filed by all parties. The court held a hearing and, on April 1, 1997, it granted the motions for summary judgment of the County and the Fund, reversing the commission’s decision and granting the County’s request for an offset.
Wills noted this appeal, presenting the following questions for review, which we have rephrased:
I. Was the commission’s June 7, 1996 decision appeal-able?
II. Did the trial court err in reversing the commission’s ruling that the County was barred from seeking an offset under L.E. § 9-601 because an offset must be sought at the time of the initial award?
III. Did the trial court err in ruling that, given the elimination of the word “similar” from the governmental employee offset provision of the Act, benefits that are not “similar” are now offset against workers’ compensation benefits under L.E. § 9-610(a)?
Blevins v. Baltimore County
Jerry L. Blevins worked full-time for the Baltimore County Police Department for 28 years. In 1994, he was a Deputy Police Chief, earning a yearly salary of $77,000.00. On January 21, 1994, Blevins was going about his police duties when he slipped and fell on a patch of ice in the parking lot of the Baltimore County Police Heаdquarters. Blevins sustained injuries to his neck, back, and shoulder. He was treated by an orthopedist, a physical therapist, and a pain management specialist.
Blevins did not miss any time from work on account of his accident. Nevertheless, he filed for accidental disability retirement benefits with the Employees’ Retirement System of Baltimore County. His application was approved and, on November 16,1995, Blevins retired. From that time forward, Blevins has received disability retirement benefits of $1,038.25 per week ($53,989.00 per year).
After he retired, Blevins filed a petition for permanent partial disability benefits before
On March 4, 1996, Baltimore County filed a petition for judicial review of the commission’s decision in the Circuit Court for Baltimore County. It then filed a motion for summary judgment, which Blevins opposed. The circuit court held a hearing and on March 5,1997, it granted the motion for summary judgment, reversing the commission’s award. Blevins noted this appeal, presenting two questions for review, which we have combined and reworded as follows:
I. Did the lower court err in reversing the commission’s ruling that L.E. § 9-610(a) did not entitle Baltimore County to offset his retirement disability benefits against workers’ compensation benefits awarded for a period before his retirement?
DISCUSSION
I
Standard of Review
Our task in reviewing a trial court’s granting of a summary judgment is two-pronged. First, we determine whether there was a dispute of material fact that rendered summary judgment improper. Then, if there is no such dispute, we must determine whether the trial court’s ruling that the prevailing party was entitled to judgment as a matter of law was legally correct.
Lynx, Inc. v. Ordnance Prods., Inc.,
In addition, in reviewing the ruling of the Workers’ Compensation Commission:
[w]e, as was the circuit court, are to be guided by the general statutory command that “the decision[s] of the Commission [are] entitled to prima facie correctness.” A court, therefore, may reverse a commission ruling only upon a finding that its action was based upon an erroneous construction of the law or facts ...
Frank v. Baltimore County,
II
The Governmental Employee Offset Provision of the Act
By Chapter 8, § 2 of the Acts of 1991, section 33(d) of Article 101 of the Maryland Code, which set forth the “governmental employee offset” provision of the Act, was recodified at § 9-610(a) of the Labor and Employment Article. Former Art. 101, § 33(d) provided, in pertinent part:
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 and the Subsequent Injury Fund for any benefit under this article. If any benefits so furnished are less than those provided for in this article the employer or the Subsequent Injury Fund, or both shall furnish the additional benefit as will make up the difference between the benefit furnished and the similar benefit required in this article ...
Md.Code (1957, 1985 Repl.Vol., 1990 Cum.Supp.), Art. 101, § 33. L.E. § 9-610(a), entitled “Offset against other benefits,” now reads, in relevant part:
(a) Covered employee of governmental unit or quasi-public corporation.—
(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 ... that is subject to this title under § 9-201(2) of this title ... 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 Subsеquent 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.
In the cases
sub judice,
it is undisputed that L.E. § 9-610(a) was in effect at the time of the workers’ injuries,
see Baltimore County v. Fleming,
“The cardinal rule of statutory construction is to ascertain and carry out the intent of the legislature.”
Montgomery County v. Buckman,
If [the language of a statute] is clear and unambiguous, then we need look no further. In such a case, a plainly worded statute must be construed without forced or subtle interpretations designed to extend or limit the scope of its operation. Doing so merely provides the clearest indication of the legislative intent and is thus the primary source for all statutory construction.
Harris v. City of Baltimore,
Ill
Wills: Preliminary Issues
(i)
Appealability
Wills argues that the commission’s June 7, 1996 order denying the County’s request for an offset under L.E. § 9-610(a) constituted a refusal by the commission to reopen a claim under L.E. § 9-736(c), which is not an appealable order, except in limited circumstances that do not apply here. The County counters that the commission did not refuse to reopen the claim. Rather, it exercised its continuing jurisdiction and issued a substantive ruling on the issue presented, rejecting the оffset request. As such, the commission’s order was appealable. We agree with the County. 2
(b) Continuing powers and jurisdiction; modification.—
(1) The Commission has continuing powers and jurisdiction over each claim under this title.
(2) Subject to paragraph (3) of this subsection, the Commission may modify any finding or order as the Commission considers justified.
(3) Except as provided in subsection (c) of this section, the Commission may not modify an award unless the modification is applied for within 5 years after the last compensation payment.
Wills asserts that the holding of the Court of Appeals in
Robin Express, Inc. v. Cuccaro,
Like the employer in Robin Express, the employer in Roadway Express, supra, failed to take action to respond to an injured worker’s claim. The commission passed an order awarding temporary total disability benefits, which was forwarded to the employer. The employer did not take steps to obtain judicial review. Instead, it filed a motion to rescind or modify the commission’s order, asserting that the worker had failed to report the accident as required, had failed to file the claim report and medical records, and that there was not sufficient evidence before the commission on which to base its award. The commission affirmеd its original award and the employer then petitioned for judicial review.
The circuit court in
Roadway Express
dismissed the petition for lack of jurisdiction. We affirmed, holding that the employer’s effort to obtain judicial review of the commission’s denial of its motion to rescind or modify was a collateral attack on the award, taken after the time to obtain judicial review had expired: “To permit the [employer] to raise these issues in a collateral proceeding would defeat the purpose of requiring appeals to be filed within a mandatory period.”
Id.
at 72,
These cases do not support Wills’s argument that the circuit court lacked jurisdiction to review the commission’s June 7, 1996 order. In the case sub judice, the County contested Wills’s claim and participated fully in the hearing on the claim and the appeal from the commission’s award of benefits that followed. Subsequently, the County invoked the continuing jurisdiction of the commission over claims for offsets referenced in L.E. § 9-610(c)(2) and filed issues requesting an offset for the first time. The record of the commission hеaring reveals that the commissioner gave substantive consideration to the County’s offset request. The commissioner did not refuse to reopen the claim or to exercise the commission’s continuing powers and jurisdiction under L.E. § 9-610(c)(2). To the contrary, the commissioner remarked that he understood that the issues were filed by the County pursuant to that statutory provision. The commissioner entertained the County’s request for an offset but denied it on the ground that L.E. § 9-610(a)(3) bars entitlement to an offset after the “initial award.”
If a court or administrative body reopens a case its second decision, be it the same or different from its previous decision, is a new holding; if it refuses to reopen, it decides only not to interfere with its previous decision which stands unimpeached as of its original date.
Id.
at 265,
Here, the commission exercised its continuing jurisdiction, considered the County’s request for an offset, and ruled that the County was barred from obtaining an offset. It did not refuse to consider the offset issue or simply decide not to interfere with its original award settling the merits of the claim. As such, the commission’s order was an appealable “new holding.”
(ii)
Timing of Offset Request
Wills next argues that the language of L.E. § 9-610(a)(3) requiring computation of an “additional benefit ... at the time of the initial award” barred the County from filing issues with the commission requesting an offset under L.E. § 9-610(a), after the commission had issued its March 17, 1994 award. The commissioner agreed with Wills on this point, interpreting L.E. § 9-610(a)(3) to mandate that any governmental employee offset be assessed at the time of the initial workers’ compensation award and preсluding a governmental employer from obtaining an offset any time thereafter. The circuit court took a contrary view, construing L.E. § 9-610(a)(3) so as not to bar the County’s request for an offset. We agree with the circuit court’s statutory interpretation.
L.E. § 9-610(a)(3) pertains to the “additional benefit” referenced in L.E. § 9-610(a)(2) and must be analyzed in light of that related subsection. If the workers’ compensation benefits awarded to a governmental employee exceed the retirement, pension, or other “benefit” that the governmental employer is seeking to apply as an offset, L.E. § 9-610(a)(2) applies and provides that “an additional benefit that equals the difference between” the two benefits shall be paid to the employee by the employer or the Fund or both. Under L.E. § 9-610(c)(l)(ii), the commission is empowered to “make an award against the employer or the [Fund] or both to provide [the] additional benefit ...” L.E. § 9-610(a)(3) specifies:
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.
The language recited above is part of a statutory scheme and, as such, should not be construed in isolation.
Fraternal Order of Police, Montgomery County Lodge No. 35 v. Mehrling,
An intеrpretation of the time reference in subsection (a)(3) to create a general hmitations period applicable to all offset claims when that subsection is only triggered in the subset of offset claims that involve computation of an additional benefit ignores the limited function of that provision in the statutory
Finally, we note that the continuing powers clause of L.E. § 9-736(b) provides at subsection (3) that an application for modification of an award by the commission must be made “within 5 years after the last compensation payment” and that, under L.E. § 9-610(c), that express time limitation applies to a “claim” for an offset. Wills’s interpretation of subsection (a)(3) of the offset statute would make that statute internally inconsistent with respect to the time for asserting an offset claim.
Ill
Wills: Status of Newman v. Subsequent Injury Fund in light of 1991 Recodification of Workers’ Compensation Act
In
Newman v. Subsequent Injury Fund,
The Court of Appeals held that Prince George’s County was not entitled to an offset. It reasoned that the use of the phrase “similar benefit” in former Art. 101, § 33(d) limited application of the governmental employee offset to benefits that are similar or comparable to workers’ compensation benefits and that a retirement benefit based on age and length of service is not such a benefit. The Court explained:
Newman was awarded workers’ compensation because of the impairment of the industrial use of her body as a result of her work-relаted 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 [workers’] compensation benefits; anatomical disability was not a prerequisite for her entitlement to the retirement benefits____ The two benefits were not similar and not comparable. Therefore, the offset provisions of § 38[ (d) ] were not applicable.
In
Polomski v. Mayor & City Council of Baltimore, supra,
the Court succinctly summarized the interpretation of former Art. 101, § 33(d) announced in
Newman:
“[S]imilar benefits for the same injury trigger the offset provision ... Dissimilar benefits, therefore, render the offset provision inapplicable.”
Id.
at 81,
The word “similar” was not included in the governmental employee offset provision as first enacted in Md.Code (1939), Art. 101, § 46. That offset provision stated simply that municipal employees were excluded from workers’ compensa tion coverage if the municipality made “equal or better” provision for its employees. The word “similar” was first introduced into the governmental employee offset statute when five sections of former Art. 101 were repealed and reenacted by Chapter 741, 1970 Laws of Maryland. No history accompanies that legislation. One year later, the Legislature again repealed and re-enacted Art. 101, § 33. 1971 Md. Laws 785. The 1971 legislation contains a purpose clause explaining that the offset provision was meant to:
provide that whenever benefits are furnished by an employer, as defined, equal to or better than the benefits provided under Article 101 of the Ann.Code of Md., such defined employer shall be released of any obligation thereunder, but should such benefits be less than those required by the said Article 101, such defined employer shall make up the difference.
Id. The purpose clause does not mention the “similar benefit” phrase or explain its purpose.
When former Art. 101, § 33(d) was recodified at L.E. § 9-610(a)(l)-(2) in 1991, the word “similar” was not included in the statute as revised. Neither House Bill 1 (1991) nor the Report on that bill mentions the “similar benefit” language of former Art. 101, § 33(d) or its absence from the revised statutory language. In the case sub judice, the County argued and the circuit court agreed that the elimination of the “similar benefit” phrase from the offset statute in 1991 materially changed the law so that benefits paid to a governmental employee that are not injury or disability related, i.e., are not “similar” to workers’ compensation benefits, now are offset against workers’ compensation benefits awarded to the employee. That interpretation of L.E. § 9-610(a) entitles the County to offset the service-related retirement benefit that it pays Wills against the workers’ compensation benefits that the commission has directed it to pay her, even though the two benefits are not similar.
Wills challenges that statutory interpretation, contending that the omission of the word “similar” from L.E. § 9-610(a)
did not effect a change in the law because it was “only for the purpose of clarity and brevity.” In support, she cites the Revisor’s Note to L.E. § 9-610, which, states that the section “is new language derived without substantive change” from certain portions of former Art. 101, § 33, including the second sentence of subsection (d), in which the “similar benefit” phrase appeared.
4
Wills also maintains that,
Our starting point in construing the meaning of L.E. § 9-610(a) is the language of the statute itself, as revised through recodification in 1991. Speaking with particular reference to the complete recodification of the Workers’ Compensation Act in the 1991 revision of the Maryland Code, the Court of Appeals has observed that, for the most part, recodifications are not substantive in nature:
This Court consistently has presumed that general recodifi-cations of statutes, such as Title 9 of the Labor & Employment Article, are for the purpose of clarity only and not substantive change, unless the language of the recodified statute unmistakably indicates the intention of the Legislature to modify the law.
DeBusk v. Johns Hopkins,
Revisor’s Notes are “a source to which [the courts] regularly turn concerning the intent of the Legislature,”
DeBusk,
Also important to our inquiry is the presumption that the Legislature has full knowledge of existing laws, including decisions of the Court of Appeals, when it effects a statutory change.
Mayor & City Council of Baltimore v. Polomski
We presume that the General Assembly was fully aware of Newman when it revised the governmental employee offset provision by leaving out the statutory language that was instrumental to the holding in that case. In addition, a comparison of the sentence in former Art. 101, § 33(d), containing the “similar benefit” phrase, to its replacement counterpart in L.E. § 9-610(a)(2) makes plain that the elimination of the word “similar” as a modifier of the word “benefit” (or “benefits”) from the latter is a language change that differs qualitatively from all other language changes that were made to that section. Those changes relate strictly to form. The omission of the word “similar” from the present law, however, cannot be explained on the basis of style, grammar, or punctuation. Moreover, the word “similar” not only was eliminated as a modifier of “benefit” in the clause that is thе present version of the “similar benefit” clause of former Art. 101, § 33(d), but also was not included in other parts of the section where its use would have been logical if modification of the word “benefit” to retain the meaning ascribed to it in Newman had been intended by the Legislature. The importance of the word “similar” to the Newman holding and the lack of any explanation based on form alone for its disappearance upon recodification from the current governmental employee offset provision is compelling evidence that the Legislature took positive action to remove the word from the statute for a substantive purpose, i.e., to modify the law.
The Legislature’s retention of the “similar benefit” phrase in another subsection of L.E. § 9-610 further convinces us that the deletion of the word “similar” from the governmental employee offset provision was a material change intended to modify the law. L.E. § 9-610(b), entitled “Covered employee of Military Department of State,” pertains to benefits conferred by federal law upon сertain employees of the Military Department of the State. Subsection (2) of L.E. § 9 — 610(b) provides:
If federal law provides benefits for a covered employee of the Military Department of the State that are less than the benefits provided by this title, the State ... shall provide an additional benefit that equals the difference between the benefit provided by federal law and the similar benefit provided by this title.
(emphasis supplied). That language was derived from the third sentence of former Art. 101, § 33(a):
Should any benefits provided by the federal government be less than those provided by this article, the State ... shall furnish the additional benefit in order to make up the difference between the benefit provided by the federal government and the similar benefit provided by this article.
(emphasis supplied). The federal military benefit offset provision in that sentence was a mirror image of the only sentence in the governmental employee offset provision of § 33(d) that contained the “similar benefit” phrase:
If any benefits so furnished arе less than those provided for in this article the employer or the Subsequent Injury Fund, or both shall furnish the additional benefit as will make up the difference between the benefit furnished and the similar benefit required in this article.
(emphasis supplied). The Legislature’s failure upon recodifi-cation to carry over the word “similar” from the predecessor statute to L.E. § 9-610(a)(l)-(2) when it did carry over the word “similar” from the parallel predecessor statute to L.E. § 9 — 610(b) is unmistakable evidence that it intended the change in the wording of the governmental employee offset provision to modify the law.
Wills argues that the following sentence in L.E. § 9-610(a)(1) limits the offset to benefits that are awarded on account of injury:
If a statute ... provides a benefit to a covered employee of a governmental unit ... that is subject to this title under § 9-201(2) of this title ... payment of the benefit by the employer satisfies ... the liability of the employer ...”
Wills contends that the phrase “subject to this title” modifies the word “benefit;” as
We do not accept Wills’s strained construction of the plain language of the offset statute. “As a corollary of the rule that we accord words their ordinary meaning, we must accord sentences an ordinary grammatical structure.”
Mazor,
As presently worded, L.E. § 9-610(a) contains no language qualifying or limiting the nature or type of benefit that may be offset against a governmental employeе’s workers’ compensation benefit. “When ... the ‘statutory language is plain and free from ambiguity and expresses a definite and sensible meaning, the courts are not at liberty to insert or
delete words with a view toward making the statute express an intention which is different from its plain meaning.’”
Frank,
The reasoning employed by the Court of Appeals in its construction of L.E. § 9-503(d)(2), an offset provision in the fire fighter and policemen heart-lung occupational disease statute of the Act, lends support to our statutory interpretation in this case. In Polomski, supra, the Court held that a fire fighter’s workers’ compensation benefits for occupational disease wеre to be adjusted by his length of service retirement benefits. The offset statute under scrutiny in Polomski reads:
The benefits received under this title shall be adjusted so that the weekly total of those benefits and retirement benefits does not exceed the weekly salary that was paid to the fire fighter....
The fire fighter contended that, just as benefits must be “similar” to be offset under former Art. 101, § 33(d), retirement benefits must be “similar” to workers’ compensation benefits to trigger an adjustment under L.E. § 9-503(d)(2). The Court disagreed. Remarking that, “notwithstanding years of revision and recodification ... [L.E. § 9-503(d)(2) and its predecessors] have never employed the ‘similar benefits’ language,” it held that it would be unreasonable to read a “similar benefits” requirement into L.E. § 9-503(d)(2):
Unlike Art. 101, § 33(d), § 9-503(d)(2) and its predecessors make no distinction between retirement benefits accruing by reason of age and service versus those accruing as the result of a disability, and no reasonable inference to that effect can be drawn from the section’s clear language.
Id. at 82.
Likewise, the clear language of L.E. § 9-610(a) no longer draws a distinction bеtween retirement or pension benefits that are service-related and those that accrue due to disability. That the “similar benefit” phrase once appeared in the statutory predecessor to L.E. § 9-610(a) does not lead logically to the conclusion that the concept still applies to the statute, absent the language. Indeed, it compels the contrary conclusion: that the
Our conclusion that the governmental employee offset provision of L.E. § 9-610(a) is not intended by the Legislature to be restricted to benefits similar to workers’ compensation benefits is based primarily on “the language chosen by the General Assembly to express its intention.”
Frank,
While the language of [a] statute is the primary source for determining legislative intent, the plain meaning rule is not absolute. Rather the statute is to be construed reasonably with reference to the purpose, aim, or policies of the Legislature reflected in the statute. Words in the statute must, therefore, be read in a way that advances the legislative policy involved.
Taxiera,
In Polomski, the Court of Appeals broadly described the objective of the Workers’ Compensation Act, since its inception, as follows:
[T]he Act protects employees, employers, and the public alike. To be sure, the Act maintains a no-fault compensation system for employees and their families for work-related injuries where compensation for lost earning capacity is otherwise available. At the same time, however, the Act also recognizes the need to protect employers from the unpredictable nature and expense of litigation, and the public from the overwhelming tax burden of ‘caring for the helpless human wreckage found [along] the trail of modern industry.’ In other words, the Act provides employees suffering from work-related accidental injuries, regardless of fault, with a certain, efficient, and dignified form of compensation. In exchange, employees abandon common law remedies, thereby relieving employers from the vagaries of tort liability.
In
Frank v. Baltimore County, supra,
decided nine years before
Newman,
the Court of Appeals read former Art. 101, § 33 to express the Legislature’s intention “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,
[I]s also consistent with the generally recognized policy underlying all wage-loss legislation:
Wage-loss legislation is designed to restore to the worker a portion ... 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 ... 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 experi encing only one wage loss and, in any logical system, should receive only one wage-loss benefit.
Id. (quoting 4 A. Larson, The Law of Workmen’s Compensation § 97.10, at 18-9 (1979)(footnotes omitted)). 6
The cases are legion that hold that the legislative purpose of the governmental employee offset provision is to preclude “double dipping” by government workers.
See Frank,
In Newman, the Court found that the “similar benefit” limitation in the governmental employee offset provision of former Art. 101, § 33(d) was consonant with the anti-“double dipping” purpose of the offset statute, in that it prevented a governmental employer from having to pay benefits twice on account of a single injury suffered by an employee. The case sub judice raises the broader related question whether an offset provision that is not restricted to like or similar benefits is inconsistent with its anti-“double dipping” purpose or, more important, with the overall objectives of the Act. We hold that it is not.
The primary and overriding objective of workers’ compensation legislation is wage-loss protection. The Court of Appeals explained in Mazor v. State, Department of Correction:
[Wjorkmen’s compensation is one facet of an overall system of wage-loss protection, ... the underlying principle of the system is to restore to the worker a portion оf the wages lost by physical disability, unemployment, or old age. It follows that although two or more causes of wage loss may coincide, the benefits need not cumulate, for the worker experiences but one wage loss.
A government worker who receives workers’ compensation as a result of an accidental work-related injury but who elects to retire and receive benefits to which he is entitled on account of age and years of service: 1) experiences wage-loss due to age and years of service, not due to injury; and 2) is afforded protection for that wage-loss in the form of an employer paid retirement benefit. Once such a worker elects retirement, the wоrkers’ compensation that he would have received to protect him against what would have been an injury induced wage-loss becomes a dual and duplicate benefit. Limiting the operation of the offset statute to require the governmental employer to continue to pay workers’ compensation benefits in that situation does not advance the wage-loss purpose of the Act and runs counter to the fiscal anti-“double-dipping” objective of the offset statute. We note also that the Court’s refusal, in Polomski, to read “similar benefit” language into the adjustment provision of L.E. § 9-503(d)(2) strongly suggests that the broad legislative objectives of the Act are not undermined or thwarted by allowing offsets and adjustments for government paid length of service benefits against government paid workers’ compensation benefits.
In the case
sub judice,
Wills’s average weekly wage before retiring after 31 years of employment by Baltimore County
was $492.08. Under former Art. 101, § 38(d) and the holding in
Newman,
after retirement, Wills would receive $629.23 per week from Baltimore County ($329.00 in workers’ comрensation plus $300.23 in retirement benefits), which is a sum $137.15 greater than the sum she earned while gainfully employed. By eliminating the word “similar” from the governmental employee offset provision of the Act, the Legislature precluded that result. In so doing, it protected the public from having to pay workers’ compensation benefits for a civil servant whose wage-loss was already protected by publicly funded benefits of another sort. That result is not inconsistent with the purposes of the offset provision or of the Act generally. Indeed, it is consistent with the legislative intention “to minimize the burden on the public treasury
IY
Blevins: Timing of Benefits
Although appellant Jerry Blevins sustained a work-related injury on January 21, 1994, he did not lose any time from work. He was paid at his full salary of $77,000.00 per year until he took a disability retirement on November 16, 1995, at which time he stopped receiving his salary and started to receive disability benefits equal to 66.6% of that salary, tax-free. Several months later, he applied for workers’ compensation benefits, which were awarded and partially back-dated. The lower court ruled that the commission erred in refusing to apply the governmental employee offset provision of L.E. § 9-610(a) to that portion of Blevins’s workers’ compensation award that was back-dated to the period from the day after his injury to the date of his retirement. Blevins now contends that the circuit court erred because the offset does not apply to workers’ compensation benefits that pre.-date the retirement benefits by which they are offset. He is wrong.
In Frank, Judge Digges, writing for the Court of Appeals, addressed a similar argument. There, a Baltimore County police officer suffered a work-related injury. At first, he did not lose any time from work and was paid as usual. Six months later, however, he started to lose time from work and decided to take a disability retirement. He retired approximately 8 months after the injury and immediately started to draw disability retirement benefits. At approximately the same time, he petitioned fоr workers’ compensation benefits. One year later, he was awarded workers’ compensation of a certain sum per week for a period of time beginning on his retirement date. The commission offset the entire award by the officer’s retirement benefit under former Art. 101, § 33(d). The circuit court affirmed the commission’s decision. Before the case was decided by this Court, the Court of Appeals issued a writ of certiorari.
Officer Frank argued that the governmental employee offset provision did not apply to his workers’ compensation award, in part because he had contributed to the pension plan from which he was receiving disability benefits. He reasoned that until he was repaid in the form of pension benefits a sum equal to his contributions to the plan, Baltimore County was not paying him a benefit and the offset provision was inapplicable. The Court rejected this argument because,
inter alia,
it was premised on the “flaw[ed] ... assumption that the benefits of the two plans are only to be compared for the period in which the two will be simultaneously due.”
This argument ... would also require an addition to the statutory language because there is no provision in the act that places a time limitation upon the contrast that is to be made. The statute simply provides for a comparison of the two benefits and, after making such a comparison in this case, we agree with the commission that there is a complete offset.
Id.
Blevins contends that the holding in Frank does not apply to this case for two reasons. First, the workers’ compensation benefits being offset in Frank were awarded for a time period after the worker’s retirement date. Here, the workers’ compensation benefits at issue were awarded for a time period preceding, and ending upon, Blevins’s retirement. Second, in Frank, there was a period of overlap between the workers’ compensation benefits and the disability retirement benefits. Here, there is no temporal overlаp between the benefits. The workers’ compensation benefits apply only to the period from the time of injury to retirement and the disability retirement benefits apply only to the period from the date of retirement forward.
These arguments miss the general principle set forth in
Frank.
The Court of Appeals held that, even if it assumed that a portion of the workers’ compensation benefits that the officer received pre-dated his
The lack of overlap between benefits that Blevins argues distinguishes this case from Frank is not only irrelevant, it is an illusion. The commission awarded Blevins workers’ compensation benefits from the date of his injury forward, into the period of retirement during which Blevins receives disability benefits. Thus, there was a substantial period of overlap of benefits. Under Frank, the entire workers’ compensation award should have been compared to the entire disability retirement award, irrespective of time frame. The commission erroneously divided the workers’ compensation award into pre- and post-retirement date benefits and then incorrectly applied the offset provision by comparing the disability retirement benefits to the post-retirement workers’ compensation benefits. The lack of overlap that Blevins contends distinguishes this case from Frank is thus the product of legal error by the commission.
The general principle that was stated in Frank and that is overlooked by Blevins is this: under the language of former Art. 101, § 33(d), the timing of the two benefits being compared has no relevance to the application of the offset. As the Court in Frank made plain, if the Legislature had intended for there to be a temporal component to the comparison, it would have included language to that effect in the statute. In the absence of such language, the two benefits are compared without reference to the timing of thе award or the period that they cover.
When the Legislature recodified former Art. 101, § 33(d) as L.E. § 9-610(a), it did not revise the statute to “place a time limitation upon the contrast that is to be made.”
Frank,
JUDGMENTS AFFIRMED; COSTS TO BE PAID BY APPELLANTS.
Notes
. Unless otherwise indicated, all statutory references in this opinion are to the Maryland Workers' Compensation Act, §§ 9-101 through 9-1201 of the Labor and Employment Article ("L.E.”).
. We note that the question whether the commission’s June 7, 1996 order is appealable was not raised before the circuit court. As the issue concerns a matter of jurisdiction, we will review it nevertheless. Md. Rule 8-131;
Thompson v. State,
. When Newman was decided, the governmental employee offset provision appeared at Art. 101, § 33(c) of the Code. In 1989, the General Assembly amended § 33 and renumbered its sections. Effective July 1, 1989, the offset provision became § 33(d).
. The second sentence of Art. 101, § 33(d) read:
"If any benefits so furnished [by a government employer] are less than those provided for in this article the employer or the Subsequent Injury Fund, or both shall furnish the additional benefit as will make up the difference between the benefit furnished and the similar benefit required in this article.” (emphasis added).
The corresponding provision in L.E. § 9-610(a)(2) reads:
"If a benefit paid [by a government employer] 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 [by the employer] and the benefits provided under this title.” (emphasis added).
. The Court in
Newman
stated: "It is perfectly clear that the word “similar" in the phrase ‘the benefit furnished and the similar benefit
required in this article,’ near the end of the section, qualifies the provision at the beginning of the Section as to the benefits furnished employees by employers. Neither as a matter of grammar nor of substance is there a 'reasonable distinguishing purpose to suggest that ['similar’] was not intended to be implicit in the foregoing sentences.’ ”
. The identical language now appears in Larson, 9 Workers' Compensation Law, § 97.10 (1997).