Mayor and City Council of Baltimore v. Cassidy

• Decision Date: 01 September 1993
• Docket Number: No. 986,986
• Citation: Mayor and City Council of Baltimore v. Cassidy, 637 A.2d 897, 99 Md.App. 465 (Md. App. 1993)
• Parties: MAYOR AND CITY COUNCIL OF BALTIMORE v. Eugene CASSIDY. ,
• Court: Court of Special Appeals of Maryland

Page 465

99 Md.App. 465

637 A.2d 897

MAYOR AND CITY COUNCIL OF BALTIMORE v.Eugene CASSIDY.

No. 986, Sept. Term, 1993.

Court of Special Appeals of Maryland.

March 2, 1994.

Herbert Burgunder, Jr.(Otho M. Thompson and Richard T. LaFata, on the brief) Baltimore, for appellant.

Karl H. Goodman, Baltimore, for appellee.

Argued before ALPERT, FISCHER and CATHELL, JJ.

CATHELL, Judge.

Eugene Cassidy, appellee, an agent for the Baltimore Police Department, was shot in the head while on duty.Appellee sought to collect Workers' Compensation benefits.At a hearing before the Workers' Compensation Commission(Commission), appellee claimed the following injuries: a total loss of vision in both eyes, total loss of his sense of smell, total loss of his sense of taste, and a head injury from the bullet which remains lodged in his head.At the hearing, appellant, the Mayor and City Council of Baltimore, stipulated that appellee was completely blind in both eyes.Appellee presented uncontradicted evidence that he had a total loss of his senses of smell and taste as a result of his injury.The only other evidence presented (the transcript of the hearing was only seven pages long, including a title page and table of contents page) was that appellee was currently employed by the Police Department as an instructor for the Police Academy.The Commission ordered:

PERMANENT PARTIAL DISABILITY: Under "Other Cases" amounting to 85% industrial loss of the body as a whole; at the rate of $244.00, payable weekly, beginning at the end of accidental injury benefits previously paid unto the claimant, for a period of 567 weeks; pursuant to Labor and Employment Title 9-630.¹

Appellee appealed this order to the Circuit Court for Baltimore City and moved for partial summary judgment claiming that the Commission erred by considering all his injuries under the "Other Cases" provision.He argued that the Commission should have considered his loss of vision under the schedule for specific injuries and then considered his loss of taste and smell and the bullet lodged in his head separately under the "Other Cases" provision.Appellee, in his motion for partial summary judgment, requested that the court award him permanent partial disability benefits for 500 weeks for his total loss of vision (250 weeks per eye) under the schedule for specific injuries, award him an additional 167 weeks under section 9-630 for a serious disability, and remand the case to the Commission to determine the extent of his permanent partial disability under "Other Cases" for the loss of his senses of smell and taste.The court granted his motion.Appellant then filed this appeal.The parties raise the following question:

Was the Circuit Court for Baltimore City correct in awarding Officer Cassidy permanent partial disability benefits under Md. Labor & Employment Code Ann. § 9-627(d)"scheduled injuries" provision for the 100% loss of both eyes and remanding his case for a further determination of industrial loss of taste and smell?²

STANDARD OF REVIEW BY CIRCUIT COURT OF

COMMISSION'S ORDER

Appellee was disabled as a result of an accidental injury.

Where the case involves an accidental injury, the court must determine three things: (i) did the Commission justly consider all the facts concerning the injury; (ii) did the Commission exceed its statutory authority; and (iii) did the Commission misconstrue the facts or the law applicable to the case?

Montgomery Ward & Co. v. Bell, 46 Md.App. 37, 42, 415 A.2d 636(1980)."[I]n making th[e]se determinations, the reviewing court has very broad authority, notwithstanding the prima facie correctness of the administrative decision."Egypt Farms, Inc. v. Lepley, 49 Md.App. 171, 176, 430 A.2d 122, cert. denied, 291 Md. 778(1981).This presumption of correctness applies to the factual decisions of the Commission and not to the Commission's interpretations of the pertinent statutory provisions.C & R Contractors v. Wagner, 93 Md.App. 801, 808, 614 A.2d 1035(1992), cert. denied, 329 Md. 480, 620 A.2d 350(1993)."Th[e] review ... 'extends both to findings of fact and applicable law' and 'provides for a trial which is essentially de novo.' "Egypt Farms, 49 Md.App. at 176, 430 A.2d 122.See alsoDawson's Charter Service v. Chin, 68 Md.App. 433, 440, 511 A.2d 1138(1986)("[A]n appeal of a worker compensation case is a de novo proceeding in the circuit court.") and Turner v. Public Defender, 61 Md.App. 393, 398, 486 A.2d 804(1985).When the circuit court granted appellee's motion for partial summary judgment, it apparently determined that the Commission misconstrued the law applicable to this case by determining that the loss of vision in both eyes fell under section 9-627(k) of the Labor & Employment Article, "Other Cases," instead of determining the loss of vision in both eyes fell under the schedule of specific injuries in section 9-627(d).

SPECIFIC INJURIES AND "OTHER CASES" UNDER SECTION 9-627

Generally, the Labor & Employment Article"should be construed as liberally in favor of injured employees as its provisions will permit in order to effectuate its benevolent purposes.Any uncertainty in the law should be resolved in favor of the claimant."C & R Contractors, 93 Md.App. at 807, 614 A.2d 1035(quotingVictor v. Proctor & Gamble Mfg. Co., 318 Md. 624, 629, 569 A.2d 697(1990))."While the Act is to be liberally construed, a court is not at liberty to disregard its plain meaning."Id., 93 Md.App. at 808, 614 A.2d 1035(quotingMontgomery County v. Lake, 68 Md.App. 269, 273, 511 A.2d 541(1986)).

Maryland Code(1991 Repl.Vol.), § 9-627(d) of the Labor and Employment Article provides:

(1) Compensation shall be paid for the period listed for the loss of the following:

....

(vi) an eye, 250 weeks.

Labor and Employment Article § 9-627(e) provides:

The permanent loss of use of a[n] ... eye shall be considered equivalent to the loss of the ... eye.

Labor and Employment Article § 9-627(k)Other cases provides:

(1) In all cases of permanent partial disability not listed in subsections (a) through (j) of this section, the Commission shall determine the percentage by which the industrial use of the covered employee's body was impaired as a result of the ... injury....

....

(3) The Commission shall award compensation to the covered employee in the proportion that the determined loss bears to 500 weeks.

Appellant contends the Commission correctly construed the law when it determined the loss of vision in both eyes fell under the "Other Cases" provision.Appellant cites two sources as support for this contention.It first cites Larson's treatise stating, "Professor Larson, in dealing with the loss of sight in both eyes being under 'other cases', has formulated 'the multiple-impairment principle'."Larson states:

There is a further factor that may help to account for a number of the newer decisions, which might be called the multiple-impairment principle.This principle would recognize the common sense fact that, when two or more schedule injuries occur together, the disabling effect may be far greater than the arithmetic total of the schedule allowances added together.The most obvious applications of this principle are already specifically provided for in a typical schedule.Total loss of sight of two eyes may be rated at, not twice as much, but five times as much as the loss of one eye, and loss of two feet may be rated at almost 4 1/2 times as much as loss of one foot.But these, together with binaural loss of hearing and other losses of two major members, are only the most obvious examples of the principle.The Maryland court identified this factor and gave direct application to it in Department of Correction[ ] v. Johnson.

1C Larson, The Law of Workmen's Compensation § 58.24(1992)(emphasis added, footnotes omitted).Thus, appellant reasons, because appellee suffered total loss of sight in both eyes plus loss of taste and smell and because his total loss of vision may "be rated at, not twice as much, but five times as much as the loss of one eye,"appellee's injuries must be classified as an "Other Case."His award under "Other Case" would be less than if his total loss of vision was rated at the loss of one eye multiplied by two under the schedule for specific injuries."Merely to state such a construction is, we think, to refute it."Department of Correction v. Johnson, 222 Md. 139, 149, 159 A.2d 658(1960).

The other source appellant cites for support is the Johnson case, where the Court of Appeals addressed "whether the Commission, in its discretion, might allow compensation in a larger amount under the 'Other Cases' provisions...."Id. at 141, 159 A.2d 658(emphasis added).The injured employee in Johnson suffered a loss of both his thumbs.The Court held:

We conclude that the amputation of both thumbs is not within the schedule of specific disabilities contained in ... the Act and that it falls within ... the "Other Cases" provision of our statute.

Id. at 149, 159 A.2d 658.

By determining that the injured employee's loss of both thumbs fell under the "Other Cases" provision, the employee was able to collect a greater amount than if he had been compensated for the loss of one thumb multiplied by two.As Professor Larson indicates in the quote that appellant cited above, the ability to give a greater award was one of the primary factors that motivated the Court to utilize the "other cases" provision.In the case sub judice, since appellee suffered the loss of his eyes (the loss of one eye requires disability benefits be awarded for 250 weeks) instead of his thumbs (the loss of one thumb requires disability benefits be awarded for 100 weeks), appellee's award will be lower if his injury is treated under the "Other Cases" provision as opposed to treating each eye as a separate specific injury and then adding the two.

The Johnson Court reviewed Schneider, Workmen's Compensation and Larson, The Law of...