Sanchez v. Potomac Abatement, Inc.

• Decision Date: 19 November 2010
• Docket Number: No. 65, Sept. Term, 2009.,65, Sept. Term, 2009.
• Citation: 417 Md. 76,8 A.3d 737
• Parties: Edy SANCHEZ v. POTOMAC ABATEMENT, INC., et al.
• Court: Maryland Court of Appeals

8 A.3d 737

417 Md. 76

Edy SANCHEZ

v.POTOMAC ABATEMENT, INC., et al.

No. 65, Sept. Term, 2009.

Court of Appeals of Maryland.

Nov. 19, 2010.

Harvey Greenberg (Law Offices of Harvey Greenberg, Towson, MD), on brief, for petitioner.

Richard W. Scheiner (Mary W. Wiethorn of Semmes, Bowen & Semmes, Baltimore, MD), on brief, for respondents.

Michael L. Dailey, Danielle E. Marone, Schmidt, Dailey, O'Neill, LLC, Baltimore, MD, for Amicus Curiae memorandum of Maryland Defense Counsel, Inc. in Support of Respondent's Brief.

Sean McMurrough, Property Casualty Insurers' Association of America, Des Plaines, IL, for Amici Curiae brief of Anne Arundel County, Maryland, Baltimore County, Maryland, Carroll County, Maryland, D.M. Bowman Trucking, Inc., HarfordCounty, Maryland, Injured Workers' Insurance Fund, Montgomery County, Maryland, Prince George's County, Maryland, Property Casualty Insurers' Association of America, Schuster Concrete.

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

MURPHY, J.

This case presents the issue of whether an injured employee's permanent partial disability benefits (PPD) are "capped" by the State average weekly wage (SAWW) in effect on the day when the injury occurred, or by the SAWW for the year in which the employee's PPD commence. Edy Sanchez, Petitioner, who was injured on September 22, 1998, argues that his award should be based upon the 2000 SAWW because 2000 is the year in which his right to PPD was established. After this argument was rejected by the Workers' Compensation Commission (the Commission), the Circuit Court for Baltimore County, and the Court of Special Appeals,¹ Petitioner filed a petition for writ of certiorari in which he presented this Court with a single question:

Whether the Maryland Statewide Average Weekly Wage index [ ] used to calculate and establish the maximum or cap of weekly compensation resulting from a PPD [permanent partial disability] of 185 weeks is that index on the date of the accident or on the date of the right to such compensation commences[?]

We granted that petition. 409 Md. 47, 972 A.2d 861 (2009). For the reasons that follow, we hold that the applicable SAWW index is the index in effect on the date of the employee's injury. We shall therefore affirm the judgment of the Court of Special Appeals.

Background

Each year the Department of Labor, Licensing, and Regulation determines the "State Average Weekly Wage" as required by § 9-603 of the Labor and Employment Article of the Maryland Code (LE).² Petitioner was awarded 185 weeks of benefits under LE § 9-629, which provides:

If a covered employee is awarded compensation for a period equal to or greater than 75 weeks but less than 250 weeks, the employer or its insurer shall pay the covered employee weekly compensation that equals two-thirds of the average weekly wage of the covered employee but does not exceed one-third of the State average weekly wage.

(Emphasis added).

According to Petitioner, because the 2000 SAWW must be used to calculate the cap, he is entitled to weekly benefits in the amount of $211.00. On the other hand, if the 1998 SAWW is used, Petitioner is entitled to weekly benefits in the amount of $191.00.³

The unreported opinion of the Court of Special Appeals includes the following factual background:

In September 1998, Sanchez suffered an injury in the course of his employmentwith the [Respondent], Potomac Abatement, Inc. Eight years later, on August 3, 2006, [t]he Commission granted Sanchez an award, to be paid by [Respondent] or its insurer, the co-[respondent], AIU Insurance Co. The award consisted of two parts. First, Sanchez was awarded compensation for a TTD [temporary total disability], to be paid retroactively for the period of March 4, 1999, to January 13, 2000. The Commission also awarded Sanchez compensation for a PPD, to be paid for a period beginning on January 14, 2000. This latter portion of the award is the subject of Sanchez's challenge.

The Commission concluded that Sanchez's injury is an "other case," under Section 9-627(k), and that he has lost the industrial use of 30% of his body. Accordingly, the Commission calculated that Sanchez is entitled to 150 weekly payments (30% of 500), qualifying him as a Tier 2 PPD claimant. As a Tier 2 PPD claimant, Sanchez would be entitled to the lesser of two thirds of his AWW [average weekly wage] and one third of the SAWW [state average weekly wage]. In this case, one third of the SAWW was the lesser, and therefore applicable, amount. Pursuant to its annual notices of the SAWW, the Commission applied the value of the SAWW for the year when Sanchez was injured—$573 for 1998—and calculated that Sanchez was entitled to weekly payments of one third of that amount, i.e., $191. Commission, Maximum Rate of Benefits for Calendar Year Beginning January 1, 1998....

On August 28, 2006, Sanchez filed a petition for judicial review in the Circuit Court for Baltimore County, requesting a jury trial. Sanchez then filed a motion for partial summary judgment, initially arguing that, for each weekly payment, the Commission should have applied the SAWW of the year in which the payment was due— i.e., the 2000 SAWW for payments due in 2000, the 2001 SAWW for payments due in 2001, and the 2002 SAWW for paymentsdue in 2002. However, before the court ruled on that motion, Sanchez changed his argument, asserting that the Commission should have solely used the SAWW for the year 2000, the year that his right to the PPD award commenced. Eventually, the court held a hearing on the matter, and then denied the motion on September 19, 2007.

Based on the ensuing jury trial and verdict, the circuit court did conclude that Sanchez had suffered impairment to 37% of his body, (rather than 30% as the Commission had found), and that he was therefore entitled to 185 rather than 150 weekly payments. Accordingly, the court vacated the Commission's award and remanded the case for the Commission to adjust the award.

As noted above, Petitioner requests that this Court reverse the judgment of the Court of Special Appeals, and direct that his PPD award be "adjusted."

Discussion

Section 9-601 of the Labor and Employment Article provides:

A provision of this subtitle may not be construed to change:

(1) a law relating to an accidental personal injury or an occupational disease, that occurred before the effective date of the provision and for which a claim is made under this title; or

(2) the payment basis in effect when an accidental personal injury or an occupational disease, for which a claim is made under this title, occurred.

(Emphasis added).

"The higher the AWW, the higher the benefits the claimant receives up toany statutory caps in effect for the year in which the injury occurred." Richard P. Gilbert, Maryland Workers' Compensation Handbook § 9.06 (3rd ed.2007). (Emphasis supplied). According to Petitioner, however, because LE § 9-629 does not expressly state which year's SAWW should be used to determine the cap on Petitioner's benefits that ambiguity should be resolved in hisfavor.⁴ While rejecting that argument, the Court of Special Appeals stated:

Notwithstanding Sanchez's Herculean efforts to persuade us to make new law, we conclude that the issue Sanchez asks us to decide is already settled. This Court has previously stated that the SAWW of the year of the accidental injury controls the amount of a PPD award. Marshall v. Univ. of Md. Med. Sys. Corp., 161 Md.App. 379, 386 [869 A.2d 391] (2005); cf. § 9-628 (Tier 1 PPD award capped by statutory ceiling value determined by date of injury). Granted, this case is distinguished by the fact that Sanchez's right to PPD payments commenced years after his injury. See Waters v. Pleasant Manor Nursing Home, 361 Md. 82, 99 [760 A.2d 663] (2000). Nevertheless, "[t]he general rule in workers' compensation benefit cases is that the date of injury controls for determining compensation benefits." Id. at 96 . The date of injury is considered to be the date of the accident, not the date on which the resulting disability manifests itself. Id. at 99 ; see also DeBusk v. Johns Hopkins Hosp., 342 Md. 432, 440 [677 A.2d 73] (1996). (interpreting statute of limitations applicable to workers' compensation claims).

The statutory basis of the general rule is Section 9-601, which "fixe[s] the compensation rate as of the time of the accidental injury." Baltimore County v. Fleming, 113 Md.App. 254, 258 [686 A.2d 1161] (1996). In particular, § 9-601 states: "A provision of this subtitle may not be construed tochange: ... (2) the payment basis in effect when an accidental personal injury ... occurred." (Emphasis added.)

Apart from case law, there has been legislative acquiescence in the Commission's consistent practice of using the SAWW of the year of injury ever since the General Assembly first directed the Commission to cap awards using the SAWW in 1975. The Commission's expertise in administering the workers' compensation statutes, as well as the legislature's acquiescence to the Commission's longstanding practice, indicate that the Commission is operating in accord with the legislative will. As the Court of Appeals said in a different case affirming the Commission's interpretation of the workers' compensation statutes:

[a] long-standing administrative interpretation is particularly persuasive ... when the administrative interpretationwas established at the same time as the legislative enactment and continued uniformly thereafter. Balto. Gas & Elec. v. Public Serv. Comm'n, 305 Md. 145, 161, 501 A.2d 1307 (1986); Swarthmore Co. v. Kaestner, 258 Md. 517, 528, 266 A.2d 341 (1970). In a like vein, the consistent construction by an administrative agency responsible for administering a statute, particularly where the administrative interpretation has been made known to the legislature in various annual reports of the agency, as in the present case, is entitled to considerable weight. National Asphalt v. Prince Geo's Co., 292 Md. 75,

...