Thomas v. Giant
Decision Date | 09 April 2007 |
Docket Number | No. 1043, September Term, 2006.,1043, September Term, 2006. |
Citation | 920 A.2d 1112,174 Md. App. 103 |
Parties | Atrelle T. THOMAS v. GIANT FOOD, LLC, et al. |
Court | Court of Special Appeals of Maryland |
Robert C. Baker, Rockville, for appellant.
Samuel J. DeBlasis, II, Lanham, for appellee.
Panel DEBORAH S. EYLER, WOODWARD and JOHN F. McAULIFFE, (Ret'd, Specially Assigned), JJ.
Atrelle T. Thomas filed a claim with the Workers' Compensation Commission ("Commission") for temporary partial disability benefits for an accidental injury he suffered in the course of his employment with Giant Food, LLC ("Giant"). The Commission denied the claim upon a finding that Thomas had not sustained compensable lost time from work.
Thomas appealed the Commission's decision to the Circuit Court for Prince George's County. The court granted summary judgment in favor of Giant, thus affirming the Commission's decision to deny benefits.
On appeal, Thomas poses one question for review, which we have rephrased:
Did the circuit court err in ruling that on the undisputed material facts he is not, as a matter of law, entitled to an award of temporary partial disability benefits under Md.Code (1999 Repl. Vol.), sections 9-614 and 9-615 of the Labor and Employment Article ("LE")?
Finding no error, we shall affirm the judgment of the circuit court.
The material facts are not in dispute. Thomas was employed by Giant as a deli clerk at its Landover store, earning $145.23 per week.1 Thomas also held a second job, working for Radio One, a radio station. In the Radio One job, he worked on average 25 hours per week, for which he was paid $225. Thus, in his two part-time jobs, Thomas earned a total of $370.23 per week.
On October 28, 2004, Thomas was working at the Giant deli, moving a heavy grease pan, when he fell backward off a step, injuring his left hip and back. As a result, he was temporarily unable to work at his job at Giant.
Because Thomas's work at Radio One was sedentary, he was able to continue in that employment without interruption, despite his injury.
Thomas filed with the Commission an application for temporary partial disability benefits, under LE sections 9-614 and 9-615. Giant filed an opposition, arguing that Thomas did not suffer any compensable lost time from work, under LE section 9-615, because his weekly earnings from Radio One exceeded his average weekly wage from Giant. The Commission agreed with Giant that, under LE section 9-615, Thomas "sustained no compensable lost time," and denied his request for benefits on that ground. After unsuccessfully challenging that decision in the Circuit Court for Prince George's County, Thomas noted this appeal.
Under LE section 9-614, "[a] covered employee who is temporarily partially disabled due to an accidental personal injury . . . shall be paid compensation in accordance" with LE section 9-615.2 The latter section, titled "Payment of compensation," states, in relevant part:
(a) (1) Subject to paragraph (2) of this subsection, if the wage earning capacity of a covered employee is less while temporarily partially disabled, the employer or its insurer shall pay the covered employee compensation that equals 50% of the difference between:
(i) the average weekly wage of the covered employee; and
(ii) the wage earning capacity of the covered employee in the same or other employment while temporarily partially disabled.
(2) The compensation payable under paragraph (1) of this subsection may not exceed 50% of the State average weekly wage.
(b) The employer or its insurer shall pay the weekly compensation for the period that the covered employee is temporarily partially disabled.
LE § 9-615. Thus, for a worker to receive temporary partial disability compensation, he first must show that his "average weekly wage" exceeds his "wage earning capacity" while he is disabled. If so, he is entitled to one half of the difference between those amounts, or up to 50% of the State average weekly wage.
In this case, the Commission found that Thomas was not eligible for temporary partial disability compensation because his "average weekly wage" ($145.23 from Giant) was less than his "wage earning capacity" while disabled ($225 from Radio One). Thomas complains that the Commission erred by using his weekly earnings from Radio One as the measurement of his "wage earning capacity" while disabled. He maintains that the decisions by the Court of Appeals in Buckler v. Willett Constr. Co., 345 Md. 350, 692 A.2d 449 (1997), and Crowner v. Baltimore United Butchers Ass'n, 226 Md. 606, 175 A.2d 7 (1961), support his position.
Giant responds that these cases do not support Thomas's argument; moreover, the plain meaning of LE section 9-615, taking into account the definition of "average weekly wage" in LE section 9-602, compels the conclusion that Thomas's "wage earning capacity" in "other employment" equaled his weekly earnings from Radio One. Because Thomas's "wage earning capacity," i.e., his weekly pay from Radio One, exceeded his "average weekly wage," i.e., his weekly pay from Giant, the Commission and the circuit court correctly determined that he was not due compensation under LE section 9-615.
Although there are some factual similarities between the Buckler case and the case at bar, a critical distinction exists: in Buckler, the claimant was seeking temporary total disability benefits, not temporary partial disability benefits. Before his injury, the claimant was working two jobs — one as a construction worker and one as a night guard. He sustained an injury while working construction that rendered him unable to return to work at that job. He was able to continue working as a night guard, however.
The Court held that, when a claimant "maintains the non-injury employment while injured" he "cannot recover temporary total disability benefits." Buckler, supra, 345 Md. at 352, 692 A.2d 449. This is so because temporary total disability benefits are those "paid to a[n] injured worker who is `wholly disabled and unable to work because of the injury.'" Id. at 356, 692 A.2d 449 (quoting R. GILBERT & R. HUMPHREYS, MARYLAND WORKERS' COMPENSATION HANDBOOK § 9. 2, at 204 (1993)). Thus, because the claimant in Buckler was able to work in some capacity, he was not totally disabled within the meaning of the statute, and could not recover temporary total disability benefits.
Buckler is inapposite to the case at bar because, here, Thomas was seeking temporary partial disability benefits; and, as the nomenclature suggests, total disability is not a prerequisite to eligibility for partial disability benefits. The issue of whether the claimant in Buckler would have been entitled to temporary partial disability benefits was not before the Court, as the Court itself pointed out.3
Temporary partial disability benefits are "those `paid to an injured worker who has rejoined the workforce but has not yet reached maximum medical improvement from the effects of the injury.'" Id. at 355, 692 A.2d 449 (quoting R. GILBERT & R. HUMPHREYS, supra, at 203-04). As discussed, supra, pursuant to the method of calculating benefits for a temporary partial disability established in LE section 9-615, an employee who loses "wage earning capacity" due to a temporary partial disability is entitled to compensation equal to 50% of the difference between his "average weekly wage" and the employee's "wage earning capacity in the same or other employment" while disabled.
"Average weekly wage" is defined in LE section 9-602(a). In pertinent part, the formula for computing a worker's average weekly wage is as follows:
(a)(1) Except as otherwise provided in this section, the average weekly wage of a covered employee shall be computed by determining the average of the weekly wages of the covered employee:
(i) when the covered employee is working on full time; and
(ii) at the time of:
1. the accidental personal injury; . . . .
In Crowner, supra, 226 Md. at 606, 175 A.2d 7, the other case Thomas relies upon, the Court of Appeals construed the phrase "average weekly wage," as used in the predecessor statute to LE section 9-602. The claimant in Crowner had been working two jobs: 40 hours a week at a meat packing plant, at $2.27 per hour, and one Saturday a month at a butchers' association, at $15 per day. While working at the butchers' association, he suffered an accidental injury to his left arm and shoulder, which resulted in a 40% loss of use of his left arm.
The claimant applied for permanent partial disability benefits. Under the controlling statute, his benefits were to be calculated based upon his "average weekly wage." The claimant argued that his "average weekly wage" was the combination of his earnings from his two employments. The Commission rejected that argument, calculating the claimant's "average weekly wage" based upon his earnings from the butchers' association only: $15, multiplied by 12, and divided by 52, which came $3.46 per week. The claimant unsuccessfully challenged the Commission's decision in the circuit court, and then before the Court of Appeals.
The statutory definition of "average weekly wage" when Crowner was decided was substantively the same as LE section 9-602(a); it stated that the phrase "shall be taken to mean the average weekly wages earned by an employee when working on full time . . . ." Code (1957), Article 101, § 67(8). The definition went on to provide, by exception, that "if any employee shall receive wages paid in part by his employer and in part by the United States under any veterans' benefit law enacted by Congress, [average weekly wage] shall mean the total average weekly wages from both sources earned by such an employee when working on fulltime." Id. That exception for veterans still exists, and is codified at LE section 9-602(i).
The Crowner Court held that the claimant's average weekly wage consisted only of the wage he had been earning from...
To continue reading
Request your trial-
Richard Beavers Constr., Inc. v. Wagstaff
... ... said that "[t]he statutory definition of average weekly wage when Crowner was decided was substantively the same as LE section 9602(a) [.]" Thomas v. Giant Food, LLC , 174 Md. App. 103, 110, 920 A.2d 1112 (2007). 8 LE 9602(a)(2) states that "tips" and "the reasonable value of housing, ... ...
-
Compensation Benefits
...LAB. & EMPL. § 9-637(b).[229] Id. § 9-615; Montgomery Cty. v. Deibler, 423 Md. 54, 31 A.3d 191 (2011).[230] Thomas v. Giant Food, Inc., 174 Md. App. 103, 920 A.2d 1112 (2007).[231] LAB. & EMPL. § 9-625.[232] Miller v. W. Elec. Co., 310 Md. 173, 528 A.2d 486 (1987).[233] Sanchez v. Potomac A......
-
Compensation Benefits
...LAB. & EMPL. § 9-637(b).[226] Id. § 9-615; Montgomery Cty. v. Deibler, 423 Md. 54, 31 A.3d 191 (2011). [227] Thomas v. Giant Food, Inc., 174 Md. App. 103, 920 A.2d 1112 (2007).[228] LAB. & EMPL. § 9-625.[229] Miller v. W. Elec. Co., 310 Md. 173, 528 A.2d 486 (1987).[230] Sanchez v. Potomac ......
-
Table of Cases
...Thomas v. Giant Food, Inc., 174 Md. App. 103, 920 A.2d 1112 (2007).................................................................................35 Thomas v. Wash. Gas Light Co., 448 U.S. 261 (1980) ................................................................................................
-
Benefits—Compensation for Disability, Disfigurement, and Death
...Inc., 185 Md. 335, 44 A.2d 811 (1945).[27] See Buckler v. Willett Constr. Co., 345 Md. 350, 692 A.2d 449(1997), Thomas v. Giant Food, 174 Md. App. 103, 920 A.2d 112 (2007), and § 14.11 of this chapter.[28] See Lab. & Empl. § 9-615. [29] See Lab. & Empl. § 9-627.[30] See Lab. & Empl. § 9-627......