Montgomery County v. McDonald
| Decision Date | 16 October 1989 |
| Parties | MONTGOMERY COUNTY, Maryland et al. v. James W. McDONALD, Jr. 127 Sept. Term 1988. |
| Court | Maryland Court of Appeals |
Alfred J. Dirska, Columbia, for petitioner.
Thomas L. Heeney (Heeney, Armstrong & Heeney, both on brief), Rockville, for respondent.
Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.
This case arises under the workers' compensation statute, Md.Code (1957, 1985 Repl.Vol., 1988 Cum.Supp.), Art. 101 (the Act). We must determine whether the two year limitations period in § 26(a)(4) thereof is tolled when the employer fails to file an occupational disease report with the Workmen's Compensation Commission (Commission) as required by § 26(b). 1 We hold that the employer's failure to file the required report does not toll the limitations period so that we reverse the decision of the Court of Special Appeals in Montgomery County v. McDonald, 77 Md.App. 153, 549 A.2d 766 (1988).
James W. McDonald, Jr. (McDonald) is a civilian police dispatcher for the Montgomery County Police Department. On August 5, 1977, he suffered a heart attack, his first, as a result of which he was unable to work until his return to work on October 3, 1977. At or about that time McDonald made no claim with the Commission for workers' compensation, and Montgomery County filed no employer's first report of injury. It is conceded that both McDonald and Montgomery County had actual notice, as early as October 1977, that McDonald's first heart attack was attributable to stress caused by his employment.
McDonald suffered a second heart attack on August 1, 1984. On August 23, 1984, he filed a claim for workers' compensation, based on his second heart attack. He alleged that he sustained an occupational disease on August 1, 1984, as a result of which he was disabled from August 2, 1984, and continuously thereafter, for which he sought temporary total and permanent partial disability.
On September 5, 1984, McDonald filed another claim form with the Commission in which he alleged that he sustained an occupational disease, a heart attack, on August 5, 1977, as a result of which he had been temporarily totally disabled from August 6 to October 2, 1977, that he had been permanently and partially disabled from October 3, 1977, and that he had been temporarily totally disabled on August 2, 1984, and continuously thereafter. At argument in this Court McDonald's counsel frankly acknowledged the underlying theory of the claim to be that both heart attacks involve the same occupational disease.
"[D]ue to [an] oversight by management," Montgomery County did not file any employer's first report of injury until October 11, 1984.
The award in the Commission's claim file generated by the second heart attack found that it was causally related to the first heart attack and was barred by limitations as well.
McDonald appealed both awards to the Circuit Court for Montgomery County. On summary judgment that court concluded limitations had been tolled. It reversed and remanded the claim based on the first heart attack to the Commission for further proceedings. 2 Montgomery County (together with its insurer as of the time of the first heart attack) noted an appeal to the Court of Special Appeals, which affirmed. Montgomery County v. McDonald, 77 Md.App. 153, 549 A.2d 766 (1988).
The intermediate appellate court compared Art. 101, § 26(b) with § 38(b). 3 Id. at 157-59, 549 A.2d at 768-69. Section 38(b) requires that an employer report an accident to the Commission when that accident results in the disability of an employee "for a period of more than three days following the happening of such accident...." The report must be filed within ten days after the employer has received notice of the accident. Additionally, § 38(c) provides that the limitations period for bringing an action arising from an accidental injury does not run until the report required by § 38(b) is filed with the Commission. 4
The Court of Special Appeals determined that the sanction provided by § 38(c) was implied in § 26(b). That court thought that it was significant that § 38(b) affords an employer ten days leeway in which to file the report, while " § 26(b) emphatically adjures that an employer shall 'at once report' to the Commission a disability from an occupational disease occurring to any employee." Id. at 159, 549 A.2d at 769. Not to apply the sanction provided by § 38(c) to § 26(b) would, the court held, cause the words "to at once report" to be "devoid of substance." Id. We granted certiorari in order to determine whether the Court of Special Appeals was correct in its construction of § 26(b). 314 Md. 629, 552 A.2d 894 (1989).
The argument in this Court has involved an additional legal theory, advanced by McDonald, beyond the implied sanction analysis relied upon by the Court of Special Appeals. McDonald's second theory, which we discuss in part II, is premised on inclusion of the words "occupational disease" in the § 67(6) definition of "accidental injury."
The Court of Special Appeals has judicially implied, construed or created a tolling sanction in occupational disease cases for an employer's failure to file a report with the Commission as required by § 26(b). We reverse because tolling (1) changes the effect of the mandatory language in the statute of limitations in § 26(a)(4); (2) is based on an inappropriate analogy to accidental injury cases; (3) violates the legislative intent as manifested by that body's rejection of the tolling device in favor of a greatly enlarged period of limitations; and (4) departs from the clear majority rule under which courts decline judicially to toll limitations based on an employer's failure to report a work-related injury or occupational disease.
Although the reporting requirement of § 26(b) indeed contains mandatory language, judicially to write into the statute a tolling remedy changes the mandatory command of the two-year statute of limitations in § 26(a)(4) for occupational diseases. That provision reads in part:
"If no claim for disability or death from an occupational disease be filed with the ... Commission within 2 years ... from the date of disablement or death, or the date when the employee or his dependents first has actual knowledge that the disablement was caused by the employment, the right to compensation for the disease shall be forever barred...."
(Emphasis added).
Undoubtedly the Act is to be construed liberally in favor of injured employees and to effectuate its remedial purposes, but a liberal rule of construction does not mean that courts are free to disregard the provisions comprising the Act. See, e.g., Lockerman v. Prince George's County, 281 Md. 195, 202 n. 5, 377 A.2d 1177, 1182 n. 5 (1977) (); Subsequent Injury Fund v. Thomas, 275 Md. 628, 635, 342 A.2d 671, 675 (1975) (); Clement v. Minning, 157 Md. 200, 204, 145 A. 485, 486 (1929) ().
The foregoing rule of construction is particularly apt for the subject limitations provision.
"[T]he general purpose of the applicable workmen's compensation act to compensate injured workers should not be used to interpret the limitations provision, because the very existence of a limitations provision in the act indicates that the legislature has deliberately compromised the general compensation purpose in the interests of the purposes served by a limitations provision."
We cannot add a purportedly intended, but omitted, tolling provision to § 26(b) through the process of statutory construction because that would change, in effect, the mandatory language "shall be forever barred" in § 26(a)(4) to the words "shall be forever extended," in cases where a report is not filed. Implying a tolling effect for the statute's reporting obligation "carries within it the fascinating possibility of an unending period for filing [a] claim, in the inevitable occasional case in which the employer has either overlooked the duty of filing the report or filed a defective one." 2B A. Larson, The Law of Workmen's Compensation § 78.49(b) at 15-367 (1989). 5
The Court of Special Appeals and McDonald would treat the accidental injury reporting provision, § 38(b), and the occupational disease reporting provision, § 26(b), as operating identically. But treating § 38(b) and § 26(b) as providing identical remedies for an employer's failure timely to file a first report ignores the substantive and procedural differences between the notice-giving, report-filing and claim-making provisions for the two types of compensable disabilities.
Under § 38(a) notice must be given to the employer within ten days after an accident (thirty days in cases of death), and, under § 38(b), the...
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