Reger v. Wash. Cnty. Bd. of Educ.

Decision Date04 August 2017
Docket NumberNo. 68, Sept. Term, 2016,68, Sept. Term, 2016
Citation166 A.3d 142,455 Md. 68
CourtCourt of Special Appeals of Maryland

Argued by Benjamin T. Boscolo (ChasenBoscolo Injury Lawyers, Greenbelt, MD), on brief, for Petitioner.

Argued by David A. Skomba (Barbara Thompson and Michael T. Bennett, Franklin & Prokopik, Baltimore, MD), on brief, for Respondent.

Amicus curiae for Montgomery County, Maryland, Anne Arundel County, Maryland, Baltimore County, Maryland, Board of Education of Prince George's County, Maryland, Harford County, Maryland, Maryland Association of Counties, Prince George's County, Maryland, The Commissioners of St. Mary's County, Maryland: Marc Hansen, Cty. Atty., John P. Markovs, Deputy Cty. Atty., Wendy B. Karpel, Assoc. Cty. Atty., Montgomery County Office of the County Attorney, 101 Monroe Street, 3rd Floor, Rockville, MD, Nancy McCutchan Duden, Cty. Atty., Anne Arundel County Office of Law, 2660 Riva Road, 4th Floor, Annapolis, MD, Michael E. Field, Cty. Atty., Gregory Gaskins, Deputy Cty. Atty., Baltimore County Office of Law, 400 Washington Avenue, Towson, MD, Robert W. Burton, Assoc. Gen. Counsel, Board of Education of Prince George's County, 14201 School Lane, Room 201F, Upper Marlboro, MD, Melissa Lambert, Cty. Atty., Harford County Law Department, 220 South Main Street, Bel Air, MD, Leslie Knapp, Jr., Legal and Policy Counsel, Maryland Association of Counties, 169 Conduit Street, Annapolis, MD, M. Andree Green, Cty. Atty., Prince George's County Office of Law, 14741 Governor Oden Bowie Drive, Upper Marlboro, MD, Michelle D. Mtimet, Zauner & Mtimet, P.A., 100 North Charles Street, Suite 1700, Baltimore, MD.

Argued before: Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

Getty, J.

On November 12, 2007, the petitioner, Charles Reger, Jr., was moving a cafeteria table while working as a custodian for respondent Washington County Board of Education ("Employer"), when the table fell on Mr. Reger, pinning him to the ground. Following the accident, Mr. Reger was diagnosed with significant injuries, primarily to his back and neck, and was unable to perform his custodial work. Mr. Reger thereafter sought and received two different sets of disability benefits from the Employer and respondent Maryland Association of Boards of Education Compensation Self–Insurance Fund ("Insurer"), each awarded by a different state agency: he was granted temporary total disability benefits by the Workers' Compensation Commission ("WCC" or "the Commission") and ordinary disability retirement benefits by the State Retirement Agency, the administrative arm of the Maryland State Retirement and Pension System ("MSRPS").1

Employer and Insurer (collectively, "Respondents") subsequently petitioned the WCC to offset Mr. Reger's ordinary disability benefits against his temporary total disability benefits pursuant to the statutory offset provision in Maryland Code (1991, 2008 Repl. Vol.), Labor and Employment Article ("LE") § 9–610.2 The Commission agreed, finding that the Respondents were entitled to a credit for the ordinary disability benefits already paid to Mr. Reger in the amount of $54,486.50, with that credit to be applied to any "future Awards of indemnity" assessed against Respondents in favor of Mr. Reger.

Mr. Reger petitioned for judicial review of the WCC's decision before the Circuit Court for Washington County. After holding a hearing as to cross-motions for summary judgment, the circuit court granted summary judgment in favor of the Commission, holding that "[a]s a matter of law in this case, the benefits are indeed within the statute similar and therefore the statutory offset applies." Mr. Reger noted an appeal to the Court of Special Appeals from the circuit court's ruling and, in an unreported opinion, the Court of Special Appeals affirmed the judgment of the circuit court. Mr. Reger thereafter petitioned this Court for a writ of certiorari, which we granted.

The sole issue presented by this appeal is whether the WCC correctly applied LE § 9–610 to find that the Respondents were entitled to offset the ordinary disability benefits already paid to Mr. Reger against the temporary total disability benefits paid to him by the Respondents. We shall affirm the WCC's finding. Under the circumstances of this case, both sets of benefits were awarded to compensate Mr. Reger for the same back and neck injuries. Because both sets of benefits compensated Mr. Reger for the same injury, pursuant to LE § 9–610, the benefits were legally "similar benefits," and the statutory offset properly applied to prevent a double recovery for the same injury.

The Work Accident

For approximately 29 years, Mr. Reger worked as a custodian for the Washington County Board of Education. On November 12, 2007, while working at Williamsport High School, a large folding cafeteria table fell on Mr. Reger while he was moving it, pinning him to the ground. Mr. Reger suffered injuries to his neck, back, left leg, and left elbow. Immediately after the accident, Mr. Reger was unable to perform his regular duty custodial work, but was able to return to work on light-duty. His final day of work as a custodian was in May of 2008.

The Initial Medical Treatment

On February 29, 2008, roughly three and a half months after his work injury, Mr. Reger saw Dr. Thomas Larkin at Parkway Neuroscience and Spine Institute about his injuries. Mr. Reger's medical records from that visit indicate a diagnosis of "SPONDYLOLISTHESIS

(738.4)."3 Mr. Reger returned for a follow-up visit to Dr. Larkin's practice on March 19, 2008, where a second diagnosis of "CERVICAL STENOSIS (723.0)"4 was added. Dr. Larkin saw Mr. Reger for additional follow-up visits on June 4, July 2, and September 10, 2008.

The Workers' Compensation Claim

Following the November 12, 2007 accident, Mr. Reger received initial temporary total disability payments from the Insurer from March 6, 2008, through July 15, 2008. On July 18, 2008, Mr. Reger, through counsel, filed a claim with the Workers' Compensation Commission based on injuries sustained in the accident. In his claim, Mr. Reger stated that the accident occurred when he was "moving [a] large cafeteria table—table fell on me and I fell to [the] floor hurting my back, neck, and hand and legs."

On November 7, 2008, the WCC held a hearing on Mr. Reger's claim. At that hearing, Mr. Reger's counsel provided the WCC with a surgical recommendation from a physician at the University of Maryland Medical Center that Mr. Reger undergo "lumbar5 surgery," which would involve a "L5–S1 decompression with fusion and stabilization." On that basis, Mr. Reger's counsel requested that Mr. Reger continue to receive temporary total disability benefits until he could undergo the surgery. Counsel for the Employer and Insurer contested whether the proposed surgery was causally related to the November 12, 2007 accident and argued that Mr. Reger was capable of working.

In an attempt to prove a causal connection between the accident and the contemplated surgery, Mr. Reger's counsel asked him a series of questions during direct examination. Mr. Reger testified that he had never missed any time from work or sought any medical treatment for "any back problems" prior to the November 12, 2007 accident. When questioned about an earlier 2004 injury involving a file cabinet, Mr. Reger acknowledged receiving an MRI and going to "some physical therapy" as a result of that incident, but denied that the incident had resulted in any back problems. He also testified that he went back to performing custodial work after the 2004 injury, describing it as "very physical work" that included regular bending and lifting.

The WCC entered an order finding that Mr. Reger had reached maximum medical recovery and that the requested lumbar surgery was not causally related to the November 12 accident. On November 24, 2008, Mr. Reger filed a request for rehearing before the WCC. Attached as an exhibit, he provided a letter from his treating physician, Dr. Larkin, that stated,

[Mr. Reger] had a pre-existing spondylolisthesis

in which he managed to work effectively for years with this problem until he had an accident at work. This temporal relationship of his accident indicates to me that there is a reasonable degree of medical certainty that his current condition is a result of his accident at work.

The WCC denied Mr. Reger's request for a rehearing.

Thereafter, Mr. Reger timely sought judicial review of the WCC's decision in the Circuit Court for Washington County. A one-day jury trial was held on September 9, 2009. The jury returned a verdict finding that Mr. Reger's lumbar surgery was causally related to the November 12 accidental injury. On September 16, 2009, the circuit court vacated the order of the WCC and remanded the case to the WCC for entry of an order finding,

1 Mr. Reger has not attained maximum medical improvement with regard to his work-related back injury.
2 That Mr. Reger's need for back surgery is causally connected to the accidental injury of November 12, 2007; and3 Mr. Reger was temporarily totally disabled from July 16, 2008 to September 9, 2009[.]
The Application for Disability Retirement Benefits

While Mr. Reger's petition for judicial review of the WCC decision that he had reached maximum medical recovery was pending before the Washington County circuit court, he sought benefits through a different avenue and filed an application with the State Retirement Agency for accidental disability retirement benefits on or about February 23, 2009. In the "Statement of Disability" section to be completed by the applicant, Mr. Reger was asked to describe his "disability or medical condition." His response indicated conditions to his lower back, neck, shoulder, left leg, and left hand. He also described how he could not physically perform certain functions of his job, including climbing steps or ladders, standing for a long time, lifting items, mowing...

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