Stapleford Hall Joint Venture v. Hyatt, 126

• Decision Date: 01 September 1992
• Docket Number: No. 126,126
• Citation: 330 Md. 388,624 A.2d 526
• Parties: STAPLEFORD HALL JOINT VENTURE, et al. v. Telford HYATT. ,
• Court: Maryland Court of Appeals

Page 388

330 Md. 388

624 A.2d 526

STAPLEFORD HALL JOINT VENTURE, et al. v. Telford HYATT.

No. 126, Sept. Term, 1992.

Court of Appeals of Maryland.

May 13, 1993.

Michael D. Dobbs, argued and on brief, Gaithersburg (Ward, Klein & Miller, on brief), for appellant.

Jeffrey W. Ochsman, Washington, DC, argued and on brief (Friedlander, Misler, Friedlander, Sloan & Herz, on brief), for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

KARWACKI, Judge.

This appeal provides us with the opportunity to apply Maryland Code (1957, 1985 Repl.Vol. and 1990 Cum.Supp.), Art. 101, § 36(3)(a)(iii) ¹ to the case of a claimant who, upon reopening his claim under § 40(b) of the Workers' Compensation article, was awarded additional compensation as a result of a worsening of his condition. With that additional award, the claimant qualified for additional compensation under the "serious disability" provision of § 36(3)(a)(iii). At issue is whether the Commission properly applied the subsection's credit proviso in a case where the initially awarded compensation was paid prior to the reopening of the case.

I.

The concept of "serious disability" in our workers' compensation law was created in 1965 when the General Assembly added §§ 36(3a) and 36(4a) to Md.Code (1957, 1964 Repl.Vol.), Art. 101, § 36 to amend:

"the Workmen's Compensation Laws concerning benefits payable to certain persons suffering a permanent partial disability under these laws, in order to create certain new categories of persons having a serious disability, and relating generally to the Workmen's Compensation benefits of, and the conditions under which payable to, persons having a 'serious disability' under the workmen's compensation laws."

Ch. 322, § 1 of the Acts of 1965. Barnes v. Ezrine Tire Co., 249 Md. 557, 241 A.2d 392 (1968); King Furniture v. Thompson, 248 Md. 682, 685-86, 238 A.2d 231, 232-33 (1968); Consolidated Engineering Co. v. Cooper, 246 Md. 610, 612 n. 1, 228 A.2d 823, 823 n. 1 (1967). The new sections followed the permanent partial disability sections, 36(3) (addressing specific injuries) and 36(4) (addressing "other cases"), respectively, and provided that those claimants whose awards reached a statutorily defined period of weeks were entitled to additional compensation for "serious disability". § 36(3a) provided in part:

"A person who receives under Subsection (3) of this section an award for a period of one hundred and seventy-five weeks or more is thereby considered to have a serious disability. He automatically shall be entitled to (in addition to the award under Subsection (3)) an extra award of a number of weeks equal to one-third (computed to the nearest whole number) of the number of weeks awarded under Subsection (3); and the award of compensation to him in no case shall exceed forty dollars per week; and as to him the maximum limitation of $12,500 shall not apply.... provided, however, that any additional compensation for permanent partial disability on a petition to reopen shall not increase the amount of compensation previously awarded and paid."

Id. § 36(4a) provided:

"A person who receives under Subsection (4) of this section an award equal in total to forty per centum or more of $12,500 is thereby considered to have a serious disability. He automatically shall be entitled to (in addition to the award under Subsection (4)) an extra award of a number of weeks equal to one-third (computed to the nearest whole number) of the number of weeks awarded under Subsection (4); and the award of compensation to him in no case shall exceed forty dollars per week; and as to him the maximum limitation of $12,500 shall not apply.... provided, however, that any additional compensation for permanent partial disability on a petition to reopen shall not increase the amount of compensation previously awarded and paid."

Id.

In 1970, the General Assembly repealed §§ 36(3a) and 36(4a) and enacted § 36(4A), which addressed in one section serious disability compensation, increasing the eligibility for serious disability classification to 250 weeks of awarded compensation and increasing the maximum amount recoverable from $40.00 to $65.00 per week. Ch. 446, § 1 of the Acts of 1970. The new section provided in part:

"Serious Disability.--A person who, from one accident, receives an award of compensation for a period of two hundred and fifty (250) weeks or more under subsections (3) or (4) or a combination of both, is thereby considered to have a Serious Disability.... The weeks for such award shall be increased by one-third (computed to the nearest whole number); and the compensation shall be for sixty-six and two-thirds per centum of the average weekly wages, in no case to exceed Sixty-five dollars ($65.00) per week and not less than a minimum of twenty-five dollars per week unless the employee's established weekly wages are less than twenty-five dollars per week at the time of the injury, in which event he shall receive compensation equal to his full wages.... Provided however, 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."

Id.

In 1975, § 36(4A) was amended. The maximum weekly award was repealed and replaced with a formula based on two-thirds of the average weekly wage as determined by the State Department of Employment Security. In addition, the minimum weekly benefit was increased from $25.00 to $50.00. Ch. 639 of the Acts of 1975.

In 1988, the General Assembly repealed § 36(4A) and in its place enacted § 36(3)(a)(iii) which provides in part:

"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 any 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 Employment and Training.... 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."

Ch. 591, § 2 of the Acts of 1988.

The credit proviso found at the end of the subsection stating, that any additional compensation awarded upon reopening shall not increase the amount of compensation previously awarded and actually paid, has been present in the Maryland "serious disability" statute since its introduction in 1965. While this Court has never had the opportunity to interpret the provision where an award of serious disability has been made subsequent to the payment of compensation previously awarded, its application under those circumstances has been addressed by the Court of Special Appeals.

In Gordon v. Baltimore Spice Company, 17 Md.App. 300, 301 A.2d 41, cert. denied, 269 Md. 755 (1973), the court interpreted the credit proviso as it appeared in Md.Code (1957, 1964 Repl.Vol. and 1968 Cum.Supp.), Art. 101, § 36(4a). In that case, an employee who had sustained an accidental injury to his back was initially awarded compensation for a 25% industrial loss of the use of his back, which under the "other cases" provisions § 36(4) entitled him to compensation at $25.00 per week for 125 weeks. After that award was paid in full, his condition worsened. The case was reopened and the Commission found he now had 45 percent industrial loss of the use of his body as a result of the injury to his back. The Commission awarded him 225 weeks of compensation and added 75 weeks pursuant to the "serious disability" provision thus entitling him to 300 weeks of compensation. The Commission credited to the employer-insurer the original 125 weeks of compensation already paid in full leaving him with a balance of 175 weeks at the "serious disability" rate of $40.00 per week. On their appeal to the Superior Court for Baltimore City, the employer and insurer filed a motion for summary judgment, arguing that after establishing the revised award on reopening, the Commission should have deducted the weeks of compensation already paid before calculating the increase of one-third weeks for the "serious disability" designation. The Superior Court agreed.

The Court of Special Appeals reversed, explaining:

"In the earlier part of the section the statute draws a distinction between the extra award of the number of weeks and an extra award in the amount of weekly compensation. It seems reasonable that when the legislature used the word compensation at the end of the statute to limit the increase of the award that it would be presumed to use the word in the same sense in which it had used it immediately above, i.e., referring specifically to the amount payable per week rather than as a limitation on the number of weeks....

* * * * * *

"If at the original hearing, the claimant in this case had been awarded a 45% disability, he would have received compensation at the rate of $40 a week for 300 weeks for a total of $12,000. As a result of the proviso at the end of the section, he must suffer a penalty by reason of the fact that his ultimate disability was not established until after his first award was paid. We can see no reason why the number of weeks of compensation should be reduced as well as the amount of weekly payments."

Id. 17 Md.App. at 304, 301 A.2d at 43.

The court relied in part on Maurice J. Pressman, Workmen's Compensation in Maryland, § 5-3(12)(h) (1972 Supp.), where the author discussed the treatment of the section in the...