Taylor v. Mayor and City Council of Baltimore

• Decision Date: 12 April 1982
• Docket Number: No. 981,981
• Citation: 51 Md.App. 435,443 A.2d 657
• Parties: Dennis R. TAYLOR v. MAYOR AND CITY COUNCIL OF BALTIMORE, et al.
• Court: Court of Special Appeals of Maryland

Page 435

51 Md.App. 435

443 A.2d 657

Dennis R. TAYLOR v. MAYOR AND CITY COUNCIL OF BALTIMORE, et al.

No. 981.

Court of Special Appeals of Maryland.

April 12, 1982.

John J. Dilli, Jr., Towson, for appellant.

L. William Gawlik, Asst. City Sol. of Baltimore City, Baltimore, with whom were Benjamin L. Brown, City Sol. of Baltimore City and Sheldon H. Press, Chief Sol. of Baltimore City on brief, Baltimore, for appellees.

Argued before MOORE, LOWE and WILNER, JJ.

LOWE, Judge.

This appeal is expressly limited to an Order of the Baltimore City Court dated May 28, 1981. The order appealed from denied appellant's motion for a new trial of an administrative appeal to that court, which had affirmed the decision of a claims examiner of the Fire and Police Employees Retirement System. Although the original appeal from the Claims Examiner's decision to the Baltimore City Court questioned findings of fact, as well as construction of law by the Examiner, appellant's motion for new trial was limited solely to the court's construction of the retirement laws regarding disability benefits. By appealing from the order denying his motion, not only does appellant limit himself to that which was addressed upon that motion, Carter v. State, 286 Md. 649, 651, 408 A.2d 1335 (1979), but he places the burden upon himself of convincing this Court that the trial judge abused his discretion in denying the motion for new trial. His gamble was successful. The judge did abuse his discretion by misconstruing the law applicable to the case and sustaining the construction by the Claims Examiner as a proper interpretation of the law. We will remand this case to the Baltimore City Court, directing it to remand to the Claims Examiner for a determination of appellant's entitlement to benefits under proper construction of the law.

Appellant, Dennis R. Taylor, had been employed as a Baltimore City fire fighter since July 20, 1970. On January 5, 1978, he suffered an injury to his left elbow. According to a Statement of Undisputed Facts, appellant applied for a "special" disability retirement on October 3, 1979. His application was denied.

When appellant's condition worsened, he apparently filed a subsequent application (but it is not in the record before us). The Claims Examiner decided that

"the claimant is physically incapacitated for further performance of the duties of his job classification in the employ of Baltimore City",

and that the incapacity "is considered to be permanent". While permanent incapacity is required for either an "ordinary" or "special" disability retirement, the Examiner denied the more remunerative "special" disability claim, ¹ because the incapacity

"is still not considered to be totally incapacitating based on the medical evidence."

Presumably for the reason that the incapacity was "not ... totally incapacitating", the Examiner decided that appellant

"is ineligible for Special Disability Retirement but is eligible for Ordinary Disability Retirement."

The Claims Examiner's opinion was affirmed upon appeal by an opinion of the Baltimore City Court on April 23, 1981 which was modified by an opinion dated May 28, 1981, denying the motion for a new trial. Erroneously assuming in both opinions that appellant's incapacity had been found by the Examiner to have been "sustained in the performance of his duties ...", the judge addressed a single issue of statutory interpretation. He pointed out that the two relevant sections in Article 22 of the Baltimore City Code relating to disability retirement benefits are § 34(c) and § 34(e); the former dealing with "Ordinary disability retirement benefits" read (prior to 1979) as follows:

"Section 34(c).

Ordinary disability retirement benefit. Any member who has acquired five (5) or more years of service and who has been determined by a claims examiner to be mentally or physically incapacitated for the further performance of the duties of the member's job classification in the employ of Baltimore City, and that such incapacity is likely to be permanent, shall be retired by the Board of Trustees on an ordinary disability retirement, not less than thirty (30) and not more than ninety (90) days next following the date of filing his application for ordinary disability retirement benefits." (Emphasis added).

In 1979, the following language was added:

"For all claimants who became members of this system on or after July 1, 1979, and have been determined to be qualified for an ordinary disability benefit, the following shall be applicable:

If the claims examiner determines that the member has suffered any permanent disability which prevents the member from the further performance of the duties of the member's job classification in the employ of the City of Baltimore, the City shall within thirty (30) days of the expiration of the appeal period as provided in Section 33(1), or, if an appeal is taken, within thirty (30) days of the final determination of all appeals, refer the member to the Civil Service Commission for vocational counseling and job evaluation to determine whether the member is suitable for re-employment with the City in another position at the same rate of compensation as he was receiving in his last position.

During the period such member is being counseled, he shall temporarily receive the ordinary disability benefits under this section until such time as the Civil Service Commission has determined that either the member is suitable for re-employment in another position or that the City cannot offer any alternative employment. If the determination by the Civil Service Commission is that the member is re-employable, the member shall either be re-employed within one year and the award of ordinary disability benefits terminated, or else the member shall be retired on ordinary disability retirement subject to the other provisions of this subtitle. If the determination by the Civil Service Commission is that the member is not re-employable, the member shall be retired on ordinary disability retirement subject to the other provisions of this subtitle."

The briefer section dealing with "Special disability benefits" was, and remains, as follows:

"Section 34(e).

(e) Special disability benefits. Any member who has been determined by the claims examiner to be totally and permanently incapacitated for the further performance of the duties of his job classification in the employ of Baltimore City, as the result of an injury arising out of and in the course of the actual performance of duty, without willful negligence on his part, shall be retired by the Board of Trustees on a special disability retirement." (Emphasis added).

In his May 28 opinion, the judge simply explicated the conclusion implied in the decision of the Claims Examiner that the only substantial distinguishing feature of the two sections was that § 34(e) expressly requires that a claimant be "totally" incapacitated for the further performance of the duties of his job classification, while § 34(c) does not use that adjective "totally". The judge recognized, however, that prior to 1979, when the Board of Trustees of the Employees Retirement System of Baltimore City was hearing such cases, it had interpreted the term "incapacitated" to mean "totally incapacitated",

"when it was the Board's responsibility to make the determinations, it passed over the 'total' incapacity language and focused on the 'in the course of the actual performance of duty, without wilful negligence ...' language. This is a reasonable interpretation because the dictionary definition of 'incapacity' includes the concept of 'totally' within its scope, so that it could be argued that there is no substantive difference between 'incapacity' and 'total incapacity'. It would then follow under this view that the only difference between Subsections (c) and (e) is the 'in the course ... of duty' or not 'in the course ... of duty' distinction in fact adopted by the Board."

He raised for recognition the

"well established rule of law in Maryland that the consistent and longstanding interpretation of a statute by the agency charged with its enforcement is 'strongly persuasive' and should not be disregarded except for 'weighty reasons,' "

then lowered it as inappropriate because

"the administrative interpretation will not be considered unless the statute in question is ambiguous on its face. Atlantic, Gulf and Pacific Company v. State Department of Assessments and Taxation, 252 Md. 173, 249 A.2d 180 (1969)."

Referring in part to the 1979 amendment to the "ordinary" disability provision, § 34(c), noted above, the judge explained that

"as of July 30, 1979, the City Council changed the system somewhat. The responsibility for hearing claims and making determinations thereon was vested in a group of Claims Examiners appointed for that purpose. Subsection (c) was amended by the addition of a provision requiring claimants found eligible for 'ordinary' benefits under that subsection to be referred to the Civil Service Commission for vocational counseling and job evaluation."

He pointed out that since their assumption of responsibility for hearing claims,

"(t)he evidence indicates that the Claims Examiners have interpreted the difference between Subsections (c) and (e) to rest not on the 'in the course ... of duty' or not 'in the course ... of duty' distinction but, rather, on a 'total' incapacity or less-than-'total' incapacity distinction. The Claims Examiners appear to interpret the 'in the course of the actual performance of duty, without wilful negligence ...' language to be a minimum requirement for 'special' disability benefits rather than a litmus test between Subsections (c) and (e). The shift of emphasis would be consistent with the addition of the vocational counseling and job evaluation provision because a claimant who is less than 'totally' incapacited could reasonably be referred for such counseling and evaluation, whereas it would make no...