Johnson v. Mayor & City Council of Baltimore

• Decision Date: 29 March 2012
• Docket Number: No. 1707,Sept. Term,2010.,1707
• Citation: 40 A.3d 475,203 Md.App. 673
• Parties: Felix L. JOHNSON, Jr., Deceased v. MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Court of Special Appeals of Maryland

203 Md.App. 673
40 A.3d 475

Felix L. JOHNSON, Jr., Deceased
v.
MAYOR AND CITY COUNCIL OF BALTIMORE.

No. 1707

Sept. Term

2010.

Court of Special Appeals of Maryland.

March 29, 2012.

[40 A.3d 478]

Paul D. Bekman (Katharine O. Porwick, Salsbury, Clements, Bekman, Marder & Adkins, LLC, on the brief), Baltimore, MD, for appellant.

Herbert Burgunder, Jr. & William R. Phelan, Jr. (George A. Nilson, City Solicitor, Minda F. Goldberg, Baltimore City Department of Law, on the brief), Baltimore, MD, for appellee.

Panel: WRIGHT, KEHOE and ARRIE W. DAVIS, (Retired, Specially Assigned), JJ.

ARRIE W. DAVIS (Retired, Specially Assigned), J.

[203 Md.App. 678] The following opening remarks by Judge Hollander, writing for this Court in Mayor & City Council of Baltimore City v. Ernest A. Johnson, 156 Md.App. 569, 572–73, 847 A.2d 1190 (2004) (footnote omitted), aff'd, 387 Md. 1, 874 A.2d 439 (2005), provide an excellent introduction for our discussion in the instant case:

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 [203 Md.App. 679] 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.).

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.

In Johnson, the surviving wholly dependent spouse of Ernest Johnson was ruled to be ineligible for dual benefits. The legislative response to the Ernest Johnson case is the starting point for the similar quest for dual benefits by the surviving

[40 A.3d 479]

wholly dependent spouse of another first responder.

This is an appeal by Janice T. Johnson, claimant, from the decision by the Circuit Court for Baltimore City reversing an award of survivor's benefits by a decision of the Workers' Compensation Commission.¹ Claimant seeks the same relief that was denied Mrs. Ernest Johnson in the above-referenced, celebrated case, but avers that the General Assembly has stepped in to remedy deficiencies in the Workers' Compensation Act that led to the denial of dual recovery in the Ernest A. Johnson case.² We have jurisdiction to consider whether claimant is entitled to collect both the pension for the employee's time of service as well as her survivor's compensation [203 Md.App. 680] benefits, and thus avoid the effect of the Act's general offset provision.³ For the reasons set forth below, we shall hold that appellant is not so entitled, because amendments to the provision at issue may not apply retroactively, and we shall therefore affirm the judgment of the circuit court.

BACKGROUND AND PROCEDURE

The employee, Felix L. Johnson, Jr., served as a firefighter for the City of Baltimore from October 13, 1964 until his retirement on June 9, 1990. On July 2,

[40 A.3d 480]

1990, the employee and claimant were married. On November 7, 2005, the employee[203 Md.App. 681] died due to a myocardial infarction. Claimant began receiving pension survivorship benefits at the rate of $266.92 per week. On January 10, 2006, claimant filed a dependent's claim for death benefits under the Act. She alleged that the employee's demise from “heart disease resulting in death” was due to the fact that he had been “continuously exposed to heat, smoke, noxious fumes and the product of combustion[.]”

On October 1, 2009, the claim went to a hearing before the Workers' Compensation Commission. On December 4, the Commission awarded benefits to the claimant. This Order was amended on February 26, 2010 to effect a nominal change in the amount of the award. In the Amended Award, the Commission first ruled that the employee sustained an occupational disease and that he died as a result thereof on November 7, 2005. The Commission further ruled that claimant was “wholly dependent” upon the employee for support and also concluded that the “Employer and Insurer are entitled to a set off under Section 9–503 of the Labor Article.” ⁴ The effect of the Commission's application of the specific offset provision set forth in Section 9–503(e) was to enhance claimants total recovery and to avoid the dollar for dollar offset at Section 9–610. See Md.Code (1991, 1999 Repl.Vol. 2007 Supp.), §§ 9–503(e), 9–610 of the Labor and Employment Article (“LE” or Act).

[203 Md.App. 682] The Employer petitioned for judicial review of the Commission's award in the Circuit Court for Baltimore City. See Section 9–737 of the Workers' Compensation Act, Md.Code (1999, 2008 Repl.Vol., 2009 Supp.), § 9–737 of the Labor and Employment Article. Both parties filed cross-motions for summary judgment in the circuit court. Md. Rule 2–501. On September 1, 2010, following a hearing on these motions, the court entered summary judgment in favor of the Employer and also denied appellant's motion.⁵ THIS TIMELY APPEAL followed.

Discussion Standard of Review

We recently pointed out that “[a]ppellate scrutiny of a workers' compensation decision depends upon the manner of the circuit court's judicial review of the Commission's decision.”

[40 A.3d 481]

Doe v. Buccini Pollin Grp., Inc., 201 Md.App. 409, 419, 29 A.3d 999 (2011). We there cited to “two modalities of judicial review,” viz. a review on the existing record generated before the Commission and a “new evidentiary hearing and decision before a jury[.]” Id. (quoting Baltimore County v. Kelly, 391 Md. 64, 67–68, 891 A.2d 1103 (2006)). These approaches are embodied in LE § 9–745, which articulates the manner by which judicial proceedings are to be conducted.⁶

[203 Md.App. 683] In the case before us, the issue was joined and decided on cross-motions for summary judgment. Where the case is in this appellate posture, our review of the circuit court's judgment is plenary, see Hemmings v. Pelham Wood Ltd. Liab. Ltd. P'ship, 375 Md. 522, 533, 826 A.2d 443 (2003), because a resolution on summary judgment is one of law, and, as Judge Greene recently pointed out for the Court of Appeals, an appellate court reviews the summary judgment decision of the circuit court “for legal correctness.” Wal Mart Stores, Inc. v. Holmes, 416 Md. 346, 358, 7 A.3d 13 (2010). See Muskin v. State Dep't of Assessments and Taxation, 422 Md. 544, 554–55, 30 A.3d 962 (2011); Chesek v. Jones, 406 Md. 446, 458, 959 A.2d 795 (2008); Doe v. Buccini, supra, 201 Md.App. at 420, 29 A.3d 999 (review of conclusions of law de novo ). Judicial review of agency decisions is constrained. Although we accord due respect for the Commission's interpretation of its organic statute, see Wal Mart v. Holmes, supra, 416 Md. at 359, 7 A.3d 13; cf. Kim v. Maryland State Board of Physicians, 423 Md. 523, 537, 32 A.3d 30 (2011) (deference to agency interpretation of own regulations), and are mindful that the Commission's decision is “presumed to be prima facie correct,” LE § 9–745(b)(1); Kim, 423 Md. at 536, 32 A.3d 30 “this presumption does not extend to questions of law, which we review independently.” [203 Md.App. 684] Montgomery County v. Deibler, 423 Md. 54, 60, 31 A.3d 191 (2011) (citing Wal Mart v. Holmes, supra, 416 Md. at 357, 7 A.3d 13).

Introduction—First Principles

The fundamental purpose of the Workers' Compensation Act

“is to ‘provide employees with compensation for loss of earning capacity, regardless of fault, resulting from accidental injury ... occurring in the course of employment.’ ” ... The Act's principle objective of compensating the injured

[40 A.3d 482]

worker “pursuant to the statutory plan for disabilities which are occupationally related” is its “centerline.” See Richard P. Gilbert & Robert L. Humphreys, Jr., Maryland Workers' Compensation Law, § 2.02 at 2–2 (3d ed.2007).

Doe v. Buccini, supra, 201 Md.App. at 420, 29 A.3d 999 (citation omitted). Such legislation is remedial and it is to be “ ‘construed as liberally in favor of the injured employees as its provisions will permit in order to effectuate its benevolent purposes.’ ” Deibler, 423 Md. at 61, 31 A.3d 191 (quoting Design Kitchen & Baths v. Lagos, 388 Md. 718, 724, 882 A.2d 817 (2005)). See Cambridge Mfg. Co. v. Johnson, 160 Md. 248, 252–53, 153 A. 283 (1931) (articulating “philosophy” of the Act). We likewise recognize that worker's compensation legislation strikes a balance between the competing interests of both employees and employers, Doe v. Buccini, 201 Md.App. at 420, 29 A.3d 999 because of the “ ‘need to provide some form of financial benefits to the injured or sick employees and the need, of both employers and employees, to avoid expensive and unpredictable litigation over accidents in the workplace.’ ” Sanchez v. Potomac Abatement, Inc., 417 Md. 76, 82 n. 4, 8 A.3d 737 (2010) (quoting DeBusk v. Johns Hopkins Hospital, 342 Md. 432, 438, 677 A.2d 73 (1996)). See Polomski v. Mayor & City Council of Baltimore, 344 Md. 70, 76–77, 83, 684 A.2d 1338 (1996) (noting diverse interests). Nonetheless, courts are enjoined to construe workers' compensation legislation liberally. See Keystone Masonry Corp. v. Hernandez, 156 Md.App. 496, 513, 847 A.2d 493 (2004).

[203 Md.App. 685] LE §§ 9–502, 9–503—The Occupational Disease Provisions

An “occupational disease” has been defined as “one which arises from causes incident to the profession or labor of the party's occupation or calling. It has its origin in the inherent nature or mode of work of the profession or industry, and it is...