Norris v. United Cerebral Palsy of Cent. Maryland

• Decision Date: 27 March 1991
• Docket Number: No. 1591,1591
• Citation: 587 A.2d 557,86 Md.App. 508
• Parties: Mildred G. Marshall NORRIS v. UNITED CEREBRAL PALSY OF CENTRAL MARYLAND, et al. Sept. Term 1990.
• Court: Court of Special Appeals of Maryland

Page 508

86 Md.App. 508

587 A.2d 557

Mildred G. Marshall NORRIS v. UNITED CEREBRAL PALSY OF CENTRAL MARYLAND, et al.

No. 1591 Sept. Term 1990.

Court of Special Appeals of Maryland.

March 27, 1991.

John Amato IV (Jeffrey T. Weinberg and Goodman, Meagher & Enoch, on the brief), Baltimore, for appellant.

Timothy P. McGough, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. and Thomas J. Michels, Asst. Atty. Gen., on the brief), Towson, for appellees.

Argued before BISHOP, ROBERT M. BELL, and CATHELL, JJ.

ROBERT M. BELL, Judge.

This expedited appeal by Mildred G. Marshall Norris, appellant, from the judgment of the Circuit Court for Baltimore City granting summary judgment in favor of United Cerebral Palsy of Central Maryland and the State Accident Fund, appellees, presents one issue for our resolution. It is:

Subparagraph 36(3)(a)(iii) of the workers' compensation statute governing serious disability claims contains language that "any additional compensation for permanent partial disability on a petition to reopen shall not increase the amount of compensation previously awarded and actually paid" [hereinafter called the "cap language"]. Did the trial court err when it applied the cap language to a subparagraph (ii) claim, even though the cap language does not appear in subparagraph (ii), and does not the cap language apply only to subparagraph (iii) serious disability claims where the language is found? ¹

The parties adopted an agreed statement of the case pursuant to Maryland Rule 8-207. From that agreed statement, we take the following facts, which we deem relevant to the resolution of the issue presented. Appellant sustained an accidental injury arising out of and in the course of her employment with United Cerebral Palsy of Maryland. Pursuant to her application for compensation, the Workers' Compensation Commission ordered that she be paid compensation, at the weekly rate of $56.00 for a period of 50 weeks for permanent partial disability of ten percent industrial loss of the back under "other cases".

When her condition worsened, appellant filed a petition to reopen. The parties having stipulated to an additional six percent industrial loss of the use of her back, the Commission ordered that additional compensation be paid at the weekly rate of $56.00 for a period of 30 weeks. As a result of a letter from appellant's counsel, the Commission entered an amended supplemental award, ordering the payments to be made at the weekly rate of $112.00 for 80 weeks, subject, however, to a credit for the amount previously paid. Appellees' attempt to further amend the Commission's order, to require the payments to be made at the rate of $112.00 per week for only 30 weeks, ² through use of the same vehicle, i.e., a letter, was refused.

Aggrieved, appellee appealed to the circuit court. Both parties having filed motions for summary judgment, following a hearing, the court granted appellees' motion and remanded the case to the Commission with instructions that it amend the award to require payments for 30 weeks at $112.00 per week.

Maryland Code Ann. art. 101, § 36(3)(a) provides:

(3) Permanent Partial Disability-Specific Injuries.--

(a) In case of disability partial in character but permanent in quality, compensation shall be paid to the employee at the rates enumerated for the periods as follows:

(i) 1. An award of compensation for a period less than 75 weeks in a claim arising from events occurring on or after January 1, 1988 shall be paid at the rate of thirty-three and one-third per centum of the average weekly wages, in no case to exceed $80 per week. An award of compensation for a period less than 75 weeks in a claim arising from events occurring on or after January 1, 1989 shall be paid at a rate of thirty-three and one-third per centum of the average weekly wages, in no case to exceed $82.50 per week.

2. In all cases of disability for loss for a period of less than 75 weeks for an injury enumerated in paragraph (c) of this subsection, the compensation shall be paid at the rate specified in subparagraph (ii) of this paragraph.

3. Public safety employees, as defined in § 67(16) of this article, shall be paid benefits, for an award of compensation for a period less than 75 weeks, at the same rate provided in this paragraph for awards for a period equal to 75 weeks but less than 250 weeks.

(ii) An award of compensation for a period greater than or equal to 75 weeks but less than 250 weeks shall be paid at a rate of sixty-six and two-thirds per centum of the average weekly wages, in no case to exceed thirty-three and one-third per centum of the average weekly wage of the State of Maryland as determined by the Department of Economic and Employment Development.

(iii) An award of compensation from one accident, for a period equal to or greater than 250 weeks as specified in paragraphs (c) through (l) inclusive, of this subsection, or combination of awards thereunder, except that an award for disfigurement or mutilation under paragraph (h) of this subsection shall not be considered a determination of serious disability, shall be increased by one-third the number of weeks (computed to the nearest whole number) and the total shall be paid at a rate of sixty-six and two-thirds per centum of the average weekly wages, in no case to exceed seventy-five per centum of the average weekly wage of the State of Maryland as determined by the Department of Economic and Employment Development. This subparagraph, to the extent of any inconsistency, prevails over paragraphs (c) through (l) of this subsection; but otherwise paragraphs (c) through (l) of this subsection apply to persons covered by this subparagraph. However, any additional compensation for permanent partial disability on a petition to reopen shall not increase the amount of compensation previously awarded and actually paid. (Emphasis added)

Notwithstanding that the emphasized language appears only in subparagraph (iii), the effect of the trial court's grant of summary judgment in favor of appellee was to apply it to subparagraph (ii) cases as well. It is the propriety of that ruling that is at issue on this appeal.

Appellant does not argue that the emphasized language is ambiguous and, indeed, she cannot. That language is not new; it previously appeared, in almost identical form, in former § 36(4a). ³ In Maizel v. Maizel & Shapiro Enters., Inc., 25 Md.App. 1, 332 A.2d 261 (1975), we addressed its proper construction. We held that it was "clear, definite, unambiguous and susceptible of only one rational interpretation and that is that when a claimant is granted the right to reopen his claim on the basis that his condition has worsened, the employer-insurer, the employer-self insurer or the Uninsured Employers' Fund, as the case may be, is entitled to a credit for compensation previously paid." Id., 25 Md.App. at 6, 332 A.2d 261. See also Gordon v. Baltimore Spice Company, 17 Md.App. 300, 304, 301 A.2d 41, cert. denied, 269 Md. 755 (1973); John W. Schindele v. Nu-Car Carriers, 42 Md.App. 705, 709, 402 A.2d 1307 (1979).

Based upon its location only in subparagraph (iii), appellant argues that this clear and unambiguous language must be limited to those situations involving serious disablity claims. Characterizing the sentence as a "proviso", she relies upon the rule of statutory construction that, "A proviso is to be strictly construed, and should be confined to what precedes it, unless it clearly appears to have been intended to apply to other matters also." Carter, Webster & Company v. United States, 143 F. 256 (4th Cir.), cert. denied, 202 U.S. 617, 26 S.Ct. 764, 50 L.Ed. 1173 (1906). Appellant also submits that the rule of statutory construction that a qualifying clause is confined, ordinarily, to the immediately preceding words or phrase also applies. See Employment Security Administration v. Weimer, 285 Md. 96, 102, 400 A.2d 1101 (1979); Sullivan v. Dixon, 280 Md. 444, 451, 373 A.2d 1245 (1977). Thus, she asserts that, since the proviso follows immediately after a reference to "persons covered by this subparagraph," and that phrase refers to persons with serious disability claims, the qualifying clause affects only such persons. Furthermore, appellant points out that § 36(3)(a) defines three distinct categories of disability, requiring compensation at prescribed rates. From this, she contends that had the Legislature wished, it could easily have expressed its intention more clearly; if it intended that the final sentence apply to all levels of disability, it could simply have placed the proviso in the prefatory sentence to subsection (3)(a).

Finally, appellant maintains that, even if subparagraph (iii) is ambiguous, she nevertheless should prevail, given the remedial nature of the Workers' Compensation Act. She relies on Cline v. City of Baltimore, 13 Md.App. 337, 344, 283 A.2d 188 (1971), aff'd, 266 Md. 42, 291 A.2d 464 (1972); Barnes v. Ezrine Tire Company, 249 Md. 557, 561, 241 A.2d 392 (1968).

Appellees respond that, in reality, the final sentence of subparagraph (iii) is also the final sentence of paragraph (a) and, as such, applies to petitions to reopen under subparagraph (ii). They rely on the definition of "paragraph" contained in Black's Law Dictionary p. 1266 (rev. 4th ed. 1968):

A part or section of a statute, pleading, affidavit, etc. which contains one article, the sense of which is complete.

See also 1991 Maryland Legislative Drafting Manual, § B11.5., Subdivision of Sections, p. 48. To the argument that the placement of the proviso at the end of subparagraph (iii) confines its effect to that subparagraph, appellee offers two answers: (1) had the Legislature intended that the language apply only to cases involving serious disability, it would have used limiting language, such as, "... under this sub-paragraph ..." to express that intent and (2) that the use of the word "any" in the proviso makes manifest the legislature's...