Nooe v. City of Baltimore

• Decision Date: 07 October 1975
• Docket Number: No. 143,143
• Citation: 28 Md.App. 348,345 A.2d 134
• Parties: Walter C. NOOE, Jr. v. Mayor and CITY Council OF BALTIMORE.
• Court: Court of Special Appeals of Maryland

Page 348

28 Md.App. 348

345 A.2d 134

Walter C. NOOE, Jr. v. Mayor and CITY Council OF BALTIMORE.

No. 143.

Court of Special Appeals of Maryland.

Oct. 7, 1975.

Certiorari Denied Jan. 6, 1976.

Karl B. Brockman, Baltimore, with whom was Alvin Sellman, Baltimore, on the brief, for appellant.

Richard K. Jacobsen, Chief Asst. Sol. for Baltimore City, with whom were Benjamin L. Brown, City Sol., Ambrose T. Hartman, Deputy City Sol., and Harry S. Swartzwelder, Jr., Associate City Sol., on the brief, for appellees.

Edward I. Glushing, Jr., Baltimore, with whom were Francis B. Burch, Atty. Gen., J. Howard Holzer, Baltimore, Sp. Atty. and Charles R. Goldsborough, Asst. Atty. Gen., on the brief for amicus curiae, of Maryland.

Argued before ORTH, C. J., and POWERS and MOORE, JJ.

ORTH, Chief Judge.

It has long been the policy of the General Assembly, as expressed in its legislative enactments, that an employee of the government shall not receive workmen's compensation benefits in addition to other benefits furnished by the employer accruing by reason of an accidental injury arising out of and in the course of employment. Acts 1914, ch. 800, § 34 provided:

'Whenever and so long as by State law, City Charter or Municipal Ordinance, provision equal or better than that given under the terms of this Act is made for municipal employes injured in the course of employment such employes shall not be entitled to the benefits of this Act.'

This provision remained the same in substance until 1970. ¹ The Court of Appeals had occasion to construe the statute in Montgomery County v. Kaponin, 237 Md. 112, 205 A.2d 292, decided 7 December 1964. It described the statute, at 115, 205 A.2d at 294, as providing 'state, city and municipal governments with the authority to exclude themselves from carrying workmen's compensation insurance on their employees by permitting them as an alternative to enact their own laws providing benefits for their employees equal to or greater than the benefits provided by workmen's compensation if they so desired.' It found:

'Article 101, Section 33 does not provide for off-sets of workmen's compensation benefits against the benefits received from a pension fund, but is a qualification statute designed to give municipal employers an alternative to providing workmen's compensation by enacting legislation affording to their employees benefits equal to or greater than those provided by the Workmen's Compensation law.' Id. at 115, 205 A.2d at 294.

It held that 'the Workmen's Compensation law intends a law by law examination and not a case by case examination. . . .' Id. at 115, 205 A.2d at 294. Determining that the benefits provided by the retirement fund established by Montgomery County for its employees (Chapter 19 of the Montgomery County Code), were not equal to or greater than the provisions of the Workmen's Compensation law, it declared that the claimant was entitled to receive benefits under both. Id. at 115, 205 A.2d 292. See Aravanis v. Eisenberg, 237 Md. 242, n. 1 at 251, 206 A.2d 148 (1965). In what was apparently a delayed reaction to the Kaponin holding, the 1970 General Assembly deleted the provision from the law. Acts 1970, ch. 741. Acts 1971, ch. 119, however, repealed ch. 741. Ch. 785, Acts 1971, was enacted. It was approved 28 May 1971, and upon the declaration that it was 'an emergency measure and necessary for the immediate preservation of the public health and safety', it took effect from the date of its passage. An erroneous reference in the Act to § 2(a)(2) rather than § 21(a)(2) was corrected by ch. 502, Acts 1972. Ch. 785, codified as § 33 of art. 101, includes:

'Whenever by statute, charter, ordinances, resolution, regulation or policy adopted thereunder, whether as part of a pension system or otherwise, any benefit or benefits are furnished employees of employers covered under Section 21(a)(2) of this article, the dependents and others entitled to benefits under this article as a result of the death of such employees, the benefit or benefits when furished by the employer shall satisfy and discharge pro tanto or in full as the case may be, the liability or obligation of the employer for any benefit under this article. Should any benefits so furnished be less than those provided for in this article the employer shall be liable to furnish the additional benefit as will make up the difference between the benefit furnished and the similar benefit required in this article.

The Commission shall have full power to determine whether any benefit provided by the employer is equal to or better than any benefit provided for in this article and to render an award against the employers to furnish additional benefit or benefits to make up the difference between the benefit furnished by the employers and the benefits required by this article as the case may be. This section shall also be subject to the continuing powers and jurisdiction of the Commission provided for in this article.'

Section 21(a)(2) encompasses 'The State, any agency thereof, and each county, city, town, township, incorporated village, school district, sewer district, drainage district public or quasi-public corporation, or any other political subdivision of the State that has one or more employees subject to this act' as constituting employers subject to the Workmen's Compensation law. Patently ch. 785, Acts 1971, was enacted in answer to Kaponin.

As we have indicated, from the inception of the Workmen's Compensation law, the General Assembly was concerned with, and attempted to prohibit, governmental authorities being obliged to pay benefits to an employee twice as a result of the same injury. This concern, evidenced by the provisions of § 34 of ch. 800, Acts 1914, later § 33 of art. 101, was expressed in the preamble to the Act, which after setting out the philosophy of the Workmen's Compensation statute, continued:

'Whereas, in addition thereto, the State and its taxpayers are subjected to a heavy burden in providing care and support for such injured workmen and their dependents, which burden should, in so far as may be consistent with the rights and obligations of the people of the State, be more fairly distributed as in this Act provided; . . ..'

When the manifest purpose of § 33 was to a large extent circumvented by the Kaponin holding, the General Assembly responded. Acts 1971, ch. 785, clearly provides for offsets of workmen's compensation benefits against the benefits otherwise furnished by a defined employer. It is not a qualification statute such as the Court of Appeals found the former statute to be. To the extent which, by due legislative enactment, a defined employer furnishes an employee with benefits, whether as part of a pension system or otherwise, the liability or obligation of the employer for any workmen's compensation benefit is satisfied and discharged. If the Workmen's Compensation Commission determines that the benefits furnished by the employer are equal to or better than the workmen's compensation benefits, then the liability or obligation of the employer under the workmen's compensation act is fully satisfied and discharged. The offset nature of the provisions is readily apparent also from the title to the Act which declares that it is to provide that 'whenever benefits are furnished by an employer, as defined, equal to or better than the benefits provided under Article 101 of the Annotated Code of Maryland, such defined employer shall be released of any obligation thereunder, but should such benefits be less than those required by the said Article 101, such defined employer shall make up the difference.'

Walter Clifford Nooe, Jr., a patrolman in the Baltimore City Police Department, was injured on 6 September 1972. The Workmen's Compensation Commission determined that he had sustained an accidental injury arising out of and in the course of his employment and that he was temporarily totally disabled as a result thereof. Upon hearing on 10 July 1974, it found that Nooe 'sustained a permanent partial disability under 'Other Cases' amounting to 50% industrial loss of use of his body . . .', ² but that 'Benefits under Workmen's Compensation Law are barred as the benefit '. . . then provided by the employer is equal to or better than any benefit furnished by the employer.) ³ . . .'

On 31 July it ordered 'that the claim is barred under Article 101 Section 33; subject to the provisions of the Workmen's Compensation Law of Maryland.' Feeling aggrieved by the order Nooe sought review in the Baltimore City Court. Code art. 101, § 56. Upon hearing on 17 January 1975 the decision of the Workmen's Compensation Commission was affirmed. Judgment nisi entered in favor of the employer and self-insurer for costs was made absolute on 22 January. Nooe appealed to the Court of Special Appeals of Maryland.

The 'Fire and Police Employees Retirement System of the City of Baltimore' was established by ordinance of the Mayor and City Council of Baltimore. Baltimore City Code, art. 22, §§ 29-41 (1966). The Retirement System authorizes an allowance on special disability benefit. Art. 22, § 34(f) provides:

'Upon retirement for special disability a member shall receive a special disability retirement allowance...