Baltimore City v. Johnson

• Decision Date: 23 April 2004
• Docket Number: No. 01061,01061
• Citation: 847 A.2d 1190,156 Md. App. 569
• Parties: MAYOR AND CITY COUNCIL OF BALTIMORE CITY v. Ernest A. JOHNSON.
• Court: Court of Special Appeals of Maryland

847 A.2d 1190

156 Md. App. 569

MAYOR AND CITY COUNCIL OF BALTIMORE CITY v. Ernest A. JOHNSON.

No. 01061, Sept. Term, 2003.

Court of Special Appeals of Maryland.

April 23, 2004.

Herbert Burgunder, Jr., William R. Phelam, Jr., Baltimore, for Appellant.

Paul D. Bekman (Gregory G. Hopper, Salsbury, Clements, Bekman, Marder & Adkins, LLC on the brief), Baltimore, for Appellee. Panel: HOLLANDER, KRAUSER, CHARLES E. MOYLAN, JR., (Retired, specially assigned) JJ.

HOLLANDER, Judge.

A retired firefighter who is also disabled as a result of an occupational disease is entitled under the Maryland Workers' Compensation Act (the "Act") to collect both service pension benefits and compensation benefits, in a sum not to exceed the firefighter's weekly salary. Polomski v. Mayor and City Council of Baltimore, 344 Md. 70, 684 A.2d 1338 (1996). In this appeal, we must determine whether a firefighter's surviving, dependent spouse is similarly entitled to collect both service related pension benefits and workers' compensation benefits when the firefighter's death results from an occupational disease. Resolution of the case requires us to construe several provisions of the Labor and Employment Article ("L.E.") of the Maryland Code (1991, 1999 Repl.Vol., 2003 Supp.).

Ernest Johnson, appellee,¹ a Baltimore City fireman, died from colon cancer, a compensable occupational disease under L.E. § 9-503(c). Mr. Johnson's widow, Jesse Johnson, collects his service pension benefits. Because of Mr. Johnson's status as a public safety employee, Mrs. Johnson claims that, pursuant to L.E. § 9-503(e), she is also entitled to collect workers' compensation benefits, so long as the total amount does not exceed Mr. Johnson's average weekly wage at the time of his death. The Workers' Compensation Commission (the "Commission") agreed with Mrs. Johnson.

Thereafter, the Mayor and City Council of Baltimore (the "City" or the "Employer"), appellant, appealed to the Circuit Court for Baltimore City. Relying on L.E. § 9-610, the City claimed that its payment of the pension benefits, in a sum greater than the compensation benefits, satisfied the City's obligation with regard to payment of workers' compensation benefits. The circuit court disagreed. This appeal followed, in which the City asks:

Did the lower court err in ruling that the offset provision in [L.E.] § 9-503(e) applies to the receipt of benefits by the surviving dependents of a deceased firefighter?

For the reasons that follow, we shall reverse and remand.

FACTUAL SUMMARY

Mr. Johnson worked as a Baltimore City firefighter for thirty-two years. In connection with his duties, he was routinely exposed to heat, smoke, noxious fumes, and toxic substances. In January 1993, while still employed as a fireman, Mr. Johnson was diagnosed with colon cancer. He succumbed to that illness on March 11, 1994. At the time of his death, Mr. Johnson earned an average weekly wage of $989.75. The parties agree that Mrs. Johnson was wholly dependent upon her husband, and that Mr. Johnson's cancer constituted an occupational disease under L.E. § 9-503(c).

As a result of Mr. Johnson's death, his widow received a service pension benefit of $603.90 per week from the City's pension system. See Baltimore City Code (2003), Art. 22, § 34(h). On February 13, 1998, Mrs. Johnson filed a Workers' Compensation claim,² which the City initially contested. At a hearing held by the Commission on December 10, 2002, Mrs. Johnson was the only witness. She testified that her husband joined the Fire Department in September 1961; in January 1993, while Mr. Johnson was still employed with the Fire Department, he was diagnosed with colon cancer; and he died from that illness on March 11, 1994.

Appellee introduced in evidence a letter from Dr. Stephen Glasser, a doctor of internal medicine, oncology, and hematology, who reviewed Mr. Johnson's medical records in 2002. Dr. Glasser opined that, to "a reasonable degree of medical probability... Mr. Johnson's malignancy was directly related to his [lengthy] occupational exposure ... to the carcinogenic products of fire particularly during the earlier years of inadequate protection."

In an Order dated December 24, 2002, the Commission found that the claimant died from an occupational disease arising out of and in the course of employment. Further, it ruled that Mrs. Johnson, the "spouse of the deceased employee, was totally dependent" upon Mr. Johnson at the time of his death. It also determined that Mrs. Johnson receives $603.90 per week from the City's pension system, and that Mr. Johnson earned an average weekly wage of $989.75 when he died. However, it deferred ruling on the issue of "what set off provision applies."

Thereafter, the City asked the Commission to address the question of the set off. In an Order dated January 31, 2003, the Commission determined "that the appropriate set off provision in this case is [L.E. § ] 9-503(e)." In all other respects, the Commission affirmed its Order of December 24, 2002.

The City subsequently appealed to the circuit court, where the parties filed cross-motions for summary judgment that were heard on June 30, 2003. The circuit court filed a Memorandum and Opinion on July 3, 2003, in which it granted appellee's summary judgment motion and denied the City's summary judgment motion. It also issued two orders, both dated July 2, 2003; one denied the City's motion and the other granted appellee's motion.

In its opinion, the circuit court rejected the City's contention that the dependents of firefighters are subject to the offset provision generally applicable to government employees, found in L.E. § 9-610. In its view, the Employer's position was at odds with the purpose of L.E. § 9-503 and the Act. The court reasoned that, by enacting L.E. § 9-503, "the Legislature intended to recognize and grant special consideration to those government employees, such as firefighters, who are engaged in and subjected to hazardous work." Moreover, the court believed that "the Legislature intended that the special benefits provided to public safety employees pursuant to [L.E.] § 9-503 be enjoyed and used for the benefit of the employee's dependants as well." Because appellee was entitled under the Act to recover dual benefits while he was alive, the court deemed it "inconsistent" to award benefits to certain public service employees while alive and sick, and then terminate those benefits to the dependants when the public service employee dies from the very disease that was acquired during the course of the employment."

DISCUSSION

I.

The parties vigorously dispute whether Mrs. Johnson is entitled to receive a combination of both workers' compensation benefits and pension benefits. But, there is much about which they do agree. For example, they agree that colon cancer is a type of "rectal cancer" within the scope of L.E. § 9-503(c), and that Mr. Johnson died from that occupational disease. Moreover, there is no dispute about appellee's average weekly wage, the rate of workers' compensation benefits, or the amount of pension benefits that Mrs. Johnson receives from the City. Nor does Mrs. Johnson contend that any recovery of combined benefits can exceed appellee's average weekly wage at the time of his death.

To understand the parties' various contentions, which we discuss at length, infra, it is helpful to begin with a review of the relevant provisions of the Act.³

Section 9-501. Accidental personal injury.

(a) In general.—Except as otherwise provided, each employer of a covered employee shall provide compensation in accordance with this title to:

(1) the covered employee for an accidental personal injury sustained by the covered employee; or

(2) the dependants of the covered employee for death of the covered employee:

(i) resulting from an accidental personal injury sustained by the covered employee; and

(ii) occurring within 7 years after the date of the accidental personal injury.

(b) Employer liable regardless of fault.—An employer is liable to provide compensation in accordance with subsection (a) of this section, regardless of fault as to a cause of the accidental personal injury.

§ 9-502. Occupational disease—Compensation.

(a) "Disablement" defined.—In this section, "disablement" means the event of a covered employee becoming partially or totally incapacitated:

(1) because of an occupational disease; and

(2) from performing the work of the covered employee in the last occupation in which the covered employee was injuriously exposed to the hazards of the occupational disease.

* * *

(c) Liability of employer and insurer. Subject to subsection (d) of this section and except as otherwise provided, an employer and insurer to whom this subsection applies shall provide compensation in accordance with this title to:

(1) a covered employee of the employer for disability of the covered employee resulting from an occupational disease; or

(2) the dependents of the covered employee for death of the covered employee resulting from an occupational disease.

(d) Limitation on liability.—An employer and insurer are liable to provide compensation under subsection (c) of this section only if:

(1) the occupational disease that caused the death or disability:

(i) is due to the nature of an employment in which hazards of the occupational disease exist and the covered employee was employed before the date of disablement; or (ii) has manifestations that are consistent with those known to result from exposure to a biological, chemical, or physical agent that is attributable to the type of employment in which the covered employee was employed before the date of disablement; and

(2) on the weight of the evidence, it reasonably may be concluded that the occupational disease was incurred as a result of the employment of the covered employee.... (Emphasis added).

L.E. § 9-503 is at the center of this case. In effect, it provides special treatment for certain public...