Swedo v. W.R. Grace & Co.

• Decision Date: 01 May 2013
• Docket Number: No. 998,Sept. Term, 2011.,998
• Parties: Andrew P. SWEDO, Jr. v. W.R. GRACE & CO., et al.
• Court: Court of Special Appeals of Maryland

211 Md.App. 391

65 A.3d 692

Andrew P. SWEDO, Jr.

v.W.R. GRACE & CO., et al.

No. 998, Sept. Term, 2011.

Court of Special Appeals of Maryland.

May 1, 2013.

Matt M. Paavola, (Brendan E. Pedersen, Workers' Comp Law Firm, LLC, on the brief), Baltimore, MD, for Appellant.

Julie D. Murray, (Anthony J. Zaccagnini, Semmes, Bowen, Semmes, on the brief), Baltimore, MD, for Appellee.

Panel: KRAUSER, C.J., KEHOE and JAMES P. SALMON (Retired, Specially Assigned), JJ.

SALMON, J.

When a worker in Maryland suffers an accidental injury that results in a permanent partial disability, his or her award is expressed by a number of dollars per week for a fixed number of weeks. For instance, the injured worker who brings this appeal was initially granted an award by the Maryland Worker's Compensation Commission (the “Commission”) of $234 per week for 200 weeks. If a petition for judicial review had not been filed, the worker would have received a total of $46,800 ($234 x 200).

In this case, however, the injured worker filed a petition for judicial review in the Circuit Court for Baltimore County in which he claimed that the award was too low. It took 148 weeks before the Circuit Court action was concluded and the Commission passed a new order. In that period, the injured worker received from his employer a total of $34,632 ($234 x 148). A jury determined that the claimant had a higher percentage of permanent partial disability than that found by the Commission. That higher percentage of disability would have, if it had been an original order, indisputably entitled the claimant to receive $525 per week for 333 weeks or $174,825.

The problem that arose in this case concerns how much credit the employer/insurer should receive for the 148 payments it made between the initial award and the time that the Commission passed a new order based on the jury award. The injured worker takes the position that the employer/insurer should receive a dollar credit, i.e., a credit for $34,632. The employer, W.R. Grace & Co. and its insurer, Hartford Insurance Co. of the Mid West (hereinafter referred to collectively as “the employer”), however, take the position that a credit should be given for the number of weeks payments were made in accordance with the Commission's original order. According to the employer, it was only required to pay $525 for the 185 weeks (333 less 148) that remained and should be given a credit, not in the amount of the dollars paid, but based on the number of weeks payments were made.

The argument espoused by the injured worker will hereinafter be referred to as the “dollar credit” theory. The employer's argument will be referred to as the “weeks credit” theory.

Under the dollar credit theory, the claimant, after giving the employer credit for the $34,632 paid, would be entitled to receive “new money” in the amount of $140,193 ($174,825 less $34,632). Under the weeks credit theory, however, the employer would get credit for the payments made for 148 weeks and would only have to pay $525 per week for 185 weeks. In other words, instead of paying the worker “new money” in the amount of $140,193 the employer would be required to pay only $97,125 ($525 x 185).

In 2001, the Maryland General Assembly passed a statute attempting to clarify whether the dollar credit theory or the weeks credit theory should be utilized when the compensation amount was either increased or decreased on an appeal ¹ to the circuit court. That statute is now codified in Md.Code (2008 Repl.Vol.), Labor and Employment Article (“LE”) section 9–633:

If an award of permanent partial disability compensation is reversed or modified by a court on appeal, the payment of any new compensation awarded shall be: (1) subject to a credit for compensation previously awarded and paid; and (2) otherwise made in accordance with this Part IV of this subtitle.²

In the subject case, after the jury's award, the Commission ruled in favor of the employer by adopting the position that the credit should be based on weeks rather than dollars. The claimant filed a second petition for judicial review in the Circuit Court for Baltimore County in which he claimed that the Commission erred by rejecting his dollar credit theory. The employer and the claimant filed cross-motions for summary judgment. The circuit court ruled that the weeks credit position espoused by the employer was legally correct. Accordingly, the court granted the employer's motion for summary judgment and denied the claimant's motion. In this timely appeal, the claimant raises one question, which he phrases as follows:

Does ... LE § 9–633 require the ... Commission to issue credits in terms of dollars or in terms of weeks in those situations where a Circuit Court has reversed the Commission's first ever permanent partial disability award?

The question appellant presents was the subject of four reported decisions decided by Maryland appellate courts prior to October 1, 2001, which was the effective date of LE § 9–633. Since then, however, no reported Maryland case has dealt with a case where section 9–633 was directly at issue. Nevertheless, the Court of Appeals in Del Marr v. Montgomery County, 397 Md. 308, 916 A.2d 1002 (2007), said, in dicta, that absent a strong showing of legislative history demonstrating a contrary intent [concerning the enactment of LE § 9–633], credit should be given the employer based on weeks rather than dollars. 397 Md. at 320, 916 A.2d 1002.

In our view, based on the language used in LE § 9–633 together with the legislative history of LE § 9–633, a dollar credit rather than a weeks credit methodology should have been utilized in this case. We shall therefore reverse the judgment of the circuit court and remand the case to that court with instructions to enter summary judgment in favor of the injured worker and to remand the case to the Commission with instructions to grant the employer credit based on the dollars paid by the employer for 148 weeks.

I.

Undisputed facts.

Andrew Swedo, Jr. was injured on November 3, 2002 when he fell from a ladder and sustained injuries to his right shoulder and left leg. He also suffered psychiatric injuries. He was injured while in the course of employment with W.R. Grace & Co., Inc. The Commission filed an order on June 23, 2006 finding that Mr. Swedo had a 70% permanent partial disability under “other cases,” industrial loss of use of the body, “40% of which is reasonably attributable to the accidental injury that occurred on November 3, 2002.” This computed to a total award of $46,800 ($234 x 200 weeks). Mr. Swedo filed a petition for judicial review in the Circuit Court for Baltimore County and requested a jury trial. The jury found in favor of Mr. Swedo by modifying his permanent partial disability to 70% permanent partial disability under “other cases,” 50% of which was due to the November 3, 2002 accident. The change from 40% to 50% disability increased the award to $525 per week for a period of 333 weeks. As previously mentioned, the Commission gave the employer credit for the 148 weeks that compensation had been paid.

II.

Maryland appellate cases decided prior to the effective date of LE § 9–633.

A. Wright v. Philip Electronics North American Corporation, 112 Md.App. 642 (1997).

Patricia Wright was injured in an accident while working for Philip Electronics North America Corporation. Id. at 644, 685 A.2d 1216. Initially, the Commission found that Ms. Wright had sustained a permanent partial disability of 50% and was entitled to benefits of $178 per week for 333 weeks. Philip Electronics and its insurer filed a petition for judicial review in the Circuit Court for Dorchester County where a jury found that Ms. Wright had sustained a permanent partial disability of only 40%. The Commission interpreted the decision to mean that Ms. Wright was entitled to only $144 in permanent partial disability benefits for 200 weeks, subject to a credit for the dollars actually paid by the employer.

Wright filed a petition for judicial review in which she argued that the amount of credit should be based on weeks rather than dollars. In the circuit court, both sides filed summary judgment motions. Id. The circuit court granted the employer's motion and affirmed the Commission's ruling that the employer was entitled to a dollar credit. Id.

Ms. Wright filed an appeal to this court and we reversed the circuit court's decision. Id. 112 Md.App. at 655, 685 A.2d 1216. We held that the weekly credit approach should have been utilized because it was “consistent with the Act's benefit structure.” Id. at 649, 685 A.2d 1216. We went on to explain:

It follows naturally that if the compensation structure is expressed in terms of ‘weeks,’ then any credit for previous payments should also be expressed by ‘weeks.’ Only by using this method is it possible to insure that credit given for previous payment is consistent with the Act's policies and structure.

Id. at 649–50, 685 A.2d 1216.

B. Philip Electronics v. Wright, 348 Md. 209 (1997).

In Philip Electronics, the Maryland Court of Appeals affirmed the judgment of this court, holding that the employer “was entitled to a credit only for the number of weeks of benefits actually paid pursuant to the Commission's original order.” 348 Md. at 229, 703 A.2d 150. The Court stated:

We conclude the language of § 9–627(k), as well as the language of § 9–629 and § 9–630, clearly and unambiguously demonstrate a legislative commitment to the payment of permanent partial disability benefits within a weekly framework. The purpose sought to be achieved by the Act further reinforces this legislative intent. In addition, Philip Electronic's argument that the payment to Wright of another 58 weeks of benefits is inequitable, and amounts to an unjust windfall to her, fails when analyzed within the circumstances surroundingthe statutory history of the Act.

Id. at 218, 703 A.2d 150.

After a detailed analysis of LE, sections 9–627, LE 9–629 and LE 9–630,...