Montgomery Cnty. v. Deibler

• Decision Date: 27 October 2011
• Docket Number: 2010.,No. 120,Sept. Term,120
• Citation: 31 A.3d 191,423 Md. 54
• Parties: MONTGOMERY COUNTY, Maryland v. Kenneth DEIBLER.
• Court: Maryland Court of Appeals

31 A.3d 191

423 Md. 54

MONTGOMERY COUNTY, Maryland

v.Kenneth DEIBLER.

No. 120

Sept. Term

2010.

Court of Appeals of Maryland.

Oct. 27, 2011.

Wendy B. Karpel, Asst. Co. Atty. (Marc P. Hansen, Acting Co. Atty., and Karen L. Federman Henry, Division Chief of Office of the County Attorney, Rockville, MD), on brief, for Appellant.

Kenneth M. Berman (H. David Leibensperger of Berman, Sobin, Gross, Feldman & Darby, LLP, Gaithersburg, MD), on brief, for Appellee.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ^* MURPHY, ADKINS and BARBERA, JJ.BARBERA, J.

Section 9–615 of the Maryland Code (1999, 2008 Repl.Vol.), Labor and Employment Article (“L.E.”) creates a two-part process for compensating temporary partial disabilities that result from work accidents or occupational diseases.¹ First, to be eligible for compensation, an employee's “wage earning capacity” while temporarily, partially disabled must be “less” than that employee's pre-disability wage earning capacity. L.E. § 9–615(a)(1). Then, if the employee is found to be eligible for compensation, the compensation owed the employee is calculated by halving the difference between the employee's pre-disability average weekly wage, and post-disability wage earning capacity. L.E. § 9–615(a)(1)(i) & (ii). This case focuses on the first part of the statute. We must determine whether a loss of the ability to work overtime, and its associated loss in overtime compensation, qualifies as a lessening of an employee's wage earning capacity for the purposes of L.E. § 9–615. For the following reasons, we answer that question in the affirmative.

I.

The parties have stipulated to the material facts of this appeal. Captain Kenneth Deibler, the Appellee, is a firefighter employed by Appellant, Montgomery County (“the County”). Appellee injured his knee on November 28, 2006 and again on March 5, 2008; both injuries occurred in work-related accidents. Those injuries, and the resulting physical restrictions, forced Appellee from his regular duties as a firefighter into a reduced working role.

The parties refer to Appellee's income as an “hourly wage.” Before his injuries, Appellee was paid bi-weekly for 96 hours of non-overtime work as a firefighter. After his injuries, Appellee could not physically perform the tasks of his job or meet the demands of working as a firefighter. He was, therefore, placed on “light duty.” He worked 80 hours every two weeks, or 40 hours a week, performing less physically strenuous tasks. His reduction in hours, though, did not affect his salary. The County boosted his hourly wage and maintained all of his cost of living adjustments and benefits, to ensure that he earned the same amount of base pay as he had been making before his injuries.

Appellee, while temporarily partially disabled, experienced a reduction in his overtime hours and overtime compensation. Appellee testified that, before his injuries, he worked 15–20 hours of overtime per week in promotional and training activities, in addition to the biweekly 96 hours of firefighter duties. Payroll records support this, revealing that in the 14 weeks leading up to each injury, Appellee worked an average of 11.9 and 15.4 overtime hours per week, respectively. After the injuries, Appellee was physically incapable of working the same training and promotional overtime activities. Moreover, unlike regular-shift firefighters, firefighters on light duty must receive special approval from a supervisor in order to work overtime hours. Appellee did not receive that approval. While Appellee was working light duty, his average weekly overtime fell to about one hour per week after each injury. As a consequence, and, notwithstanding that the County boosted Appellee's base salary to offset his reduction in hours, Appellee's income dropped significantly. The record shows that, during the 14 weeks preceding his first injury, Appellee earned $2782.63 per week. During the 20 weeks Appellee spent on light duty after his first injury, Appellee earned approximately $2022 per week. In the 14 weeks preceding his second injury, Appellee earned $3049.92 per week. In the 22 weeks Appellee spent on light duty after his second injury, Appellee earned approximately $2278 per week.

Appellee filed separate claims with the Worker's Compensation Commission (“the Commission”), requesting disability compensation for the loss of income stemming from each injury. The Circuit Court consolidated both cases. After a hearing, at which Appellee testified to the above facts, the Commission ordered that Appellee should receive temporary partial disability compensation for the periods of time in which he worked light duty after both injuries. Thus, implicit in the Commission's order was its determination, pursuant to L.E. § 9–615(a), that Appellee's loss in overtime compensation qualified as a lessening of his wage earning capacity.

The County filed a petition in the Circuit Court for Montgomery County seeking judicial review of the Commission's decision. The County argued that the Commissioner's implied reasoning under L.E. § 9–615(a) runs contrary to the intent of the Legislature. After brief discovery, both parties filed cross-motions for summary judgment. The County argued in its motion that Appellee's base pay was the same as it was before his injuries and, therefore, Appellee could not fulfill the requirement of L.E. § 9–615(a)(1), that an employee's wage earning capacity be “less” while disabled than the employee's pre-disability wage earning capacity. The County took the position that “wage earning capacity” does not include overtime compensation, because overtime is not a guaranteed form of compensation.

The Circuit Court disagreed with the County. The court, by reference to what it viewed as analogous federal law (the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 908(e)), ruled that the term “wage earning capacity” could fairly include overtime compensation. The court reasoned that the County's argument fell out of line with modern employment practice. The court explained that overtime was an integral part of the compensatory package for much of the workforce, including Appellee. The court ruled that overtime compensation was part of Appellee's wage earning capacity. The court therefore denied the County's motion for summary judgment, granted Appellee's cross-motion for summary judgment, and thereby affirmed the Commission's order.

The County noted an appeal to the Court of Special Appeals. Before argument in that court, we issued a writ of certiorari to consider following question:

Does the term “wage earning capacity” include the capacity to earn overtime compensation so that the Commission may include such compensation in the determination of whether an employee's wage earning capacity is “less” while temporarily, partially disabled?

II.

L.E. § 9–745 governs appeals of decisions by the Commission. It provides that, in appellate review of a Commission decision, “the decision of the Commission is presumed to be prima facie correct.” We have explained, though, that this presumption does not extend to questions of law, which we review independently. Wal Mart Stores, Inc. v. Holmes, 416 Md. 346, 357, 7 A.3d 13, 19 (2010). We do, though, afford the Commission a degree of deference, as appropriate, in its formal interpretations of the Workers' Compensation Act. See Breitenbach v. N.B. Handy Co., 366 Md. 467, 485, 784 A.2d 569, 579 (2001) (“To be sure, the issue of statutory interpretation is for the court to decide, nevertheless, we have recognized that even when such matters are before the court, the [Commission]'s interpretation may be entitled to some deference.” (internal quotation marks omitted)).

“The cardinal rule of statutory interpretation is to ascertain and effectuate the real and actual intent of the Legislature.” Gardner v. State, 420 Md. 1, 8, 20 A.3d 801, 806 (2011) (quoting State v. Johnson, 415 Md. 413, 421, 2 A.3d 368, 373 (2010)). In that task, we must “look first to the language of the statute, giving it its natural and ordinary meaning.” Holmes, 416 Md. at 385, 7 A.3d at 36. When the meaning of that plain language is “clear and unambiguous,” our interpretive task is at an end. Id. at 359, 7 A.3d at 21. But, “when the meaning of the plain language is ambiguous or unclear, we seek to discern the intent of the legislature from surrounding circumstances, such as legislative history, prior case law, and the purposes upon which the statutory framework was based.” Breitenbach, 366 Md. at 473, 784 A.2d at 572.

When interpreting the Act, additional principles of interpretation enter the equation. Foremost, we recognize that the Act is a remedial statute. Design Kitchen & Baths v. Lagos, 388 Md. 718, 724, 882 A.2d 817, 821 (2005). The purpose of the Act is “to protect workers and their families from hardships inflicted by work-related injuries by providing workers with compensation for loss of earning capacity resulting from accidental injury arising out of and in the course of employment.” Howard County Assoc. for Retarded Citizens, Inc. v. Walls, 288 Md. 526, 531, 418 A.2d 1210, 1214 (1980) (citing Queen v. Agger, 287 Md. 342, 343, 412 A.2d 733, 733–34 (1980); Liggett & Meyers Tobacco Co. v. Goslin, 163 Md. 74, 80, 160 A. 804, 807 (1932)). Therefore, we have been consistent in holding that the Act must be “construed as liberally in favor of injured employees as its provisions will permit in order to effectuate its benevolent purposes.” Lagos, 388 Md. at 724, 882 A.2d at 821 (quoting Harris v. Bd. of Educ. of Howard County, 375 Md. 21, 57, 825 A.2d 365, 387 (2003)).

At the same time, we “may not stifle the plain meaning of the Act, or exceed its purposes, so that the injured worker may prevail.” Breitenbach, 366 Md. at 473, 784 A.2d at 573 (quoting Philip Elecs. N. Am. v. Wright, 348 Md. 209, 212, 703 A.2d 150, 151 (1997)). When the language is plain, we may not invent or infer an...