Tsottles v. Mayor and City Council of Baltimore

• Decision Date: 09 June 1983
• Docket Number: No. 1248,1248
• Citation: Tsottles v. Mayor and City Council of Baltimore, 460 A.2d 636, 55 Md.App. 58 (Md. App. 1983)
• Parties: Gus J. TSOTTLES v. MAYOR AND CITY COUNCIL OF BALTIMORE et al.
• Court: Court of Special Appeals of Maryland

Page 58

55 Md.App. 58

460 A.2d 636

Gus J. TSOTTLES v. MAYOR AND CITY COUNCIL OF BALTIMORE et al.

No. 1248.

Court of Special Appeals of Maryland.

June 9, 1983.

Edward J. Glusing, Jr., Baltimore, for appellant.

John J. Carlin, Asst. Sol., of Baltimore City, with whom were Benjamin L. Brown, City Sol., and Sheldon H. Press, Chief Sol., Baltimore, on brief for appellee, Mayor and City Council of Baltimore.

Sophia L. Swope, Asst. Atty. Gen., with whom was Stephen H. Sachs, Atty. Gen., of Maryland on brief for appellee, Subsequent Injury Fund.

Argued before WEANT, BISHOP and ALPERT, JJ.

WEANT, Judge.

Section 33 of the Maryland Workmen's Compensation Act, Md.Code Article 101, attempts to prevent double payment from the public treasury to civil servants for an injury arising out of the employment relationship by providing that government employees covered by both a pension plan and workmen's compensation are entitled to but a single recovery for a single injury. Frank v. Baltimore County, 284 Md. 655, 399 A.2d 250 (1979), Mazor v. Dep't of Corrections, 30 Md.App. 394, 352 A.2d 918, cert. denied, 278 Md. 727 (1976), Nooe v. Mayor and City County of Baltimore, 28 Md.App. 348, 345 A.2d 134, cert. denied, 276 Md. 748 (1975). We are faced with the dilemma of whether the § 33(c) setoff, in order to be applicable, requires that the workmen's compensation benefits and the pension benefits be provided by, or traceable to, the same governmental employer.

Gus T. Tsottles was employed by the Baltimore City Department of Education as a social studies teacher in 1952. Out of and in the course of his employment, he sustained accidental personal injuries on 28 February 1966 and 14 May 1979. The combined effect of these accidents resulted in his being retired under the State of Maryland Retirement System. Appellant began receiving retirement benefits from the State on 1 April 1980 at a monthly rate of $1,247.48.

On 17 February 1981, the Workmen's Compensation Commission found appellant to have a sixty percent permanent partial disability, thirty percent of which was attributable to the 1979 accidental injury and thirty percent of which was attributable to the 1966 accidental injury. The Commission awarded weekly benefits of $74.00. The Mayor and City Council of Baltimore, as employer and self-insurer, was ordered to make such payments beginning 5 September 1979 not to exceed a total of $11,000.00. The Subsequent Injury Fund was ordered to make payments at the same rate to commence upon final payment of compensation benefits due from the employer. The Subsequent Injury Fund's liability was capped at $7,350.00.

After a rehearing at which the award was affirmed, the employer and Subsequent Injury fund both filed motions for summary judgment in the Circuit Court for Baltimore City. Those motions were granted, reversing the award of the Workmen's Compensation Commission on the grounds that, because the pension benefits exceeded the compensation benefits, the employer and Subsequent Injury Fund were entitled to a full setoff under § 33(c) which extinguished their liability. Appellant contends summary judgment was improperly granted in light of the factual question of whether the State Disability Retirement Benefits were traceable to the City of Baltimore. What appellant apparently overlooks is that the factual funding issue is only relevant if the trial court's interpretation of § 33(c) is incorrect.

Article 101, § 33(c) provides, in pertinent part:

Whenever by statute, charter, ordinance, resolution, regulation or policy adopted thereunder, whether as part of a pension program or otherwise, any benefit or benefits are furnished employees of employers covered under § 21(a)(2) of this article, ... the benefit or benefits furnished by the employer shall satisfy and discharge pro tanto or in full as the case may be, the liability or obligation of the employer and Subsequent Injury Fund for any benefit under this article.

Article 101, § 21(a)(2) employers are defined as:

The State, any agency thereof, and each county, city, town, township, incorporated village, school district, sewer district, drainage district, public or quasi-public corporation, or any other political subdivision of the State that has one or more employees subject to this act.

Appellant does not question that the City of Baltimore--the provider of the workmen's compensation benefits--and the State of Maryland--the provider of the disability retirement benefits--are each defined employers under § 21(a)(2) or that the benefits were furnished by virtue of the employment relationship. Thus arises the determination of whether both benefit packages must be provided by the same governmental entity. ¹

Ultimately, we are obliged to discern and effectuate the actual purpose of the Legislature in enacting § 33(c). We start with the language of the statute chosen by the Legislature in the sanguine belief that their words best express their intent. When, as in this case, the language is neutral and does not cut in favor of either construction, the history surrounding the statute's adoption can be used as an aid in its construction. Frank v. Baltimore County, supra, 284 Md. at 658, 399 A.2d 250.

In Dennison v. Head Construction Company, et al., --- Md.App. ---, 458 A.2d 868 (1983), Dennison was receiving Maryland Workmen's Compensation benefits for a 1966 accidental injury. In 1976, Dennison was employed in the District of Columbia by a D.C. construction company when he was injured again. The U.S. Department of Labor Office of Workmen's Compensation found Dennison to be permanently and totally disabled. He was awarded benefits under the District of Columbia's program which were substantially greater than the benefits payable under the Maryland statute. This Court held that, where the loss of wage earnings capacity is predicated upon the same anatomical disability, a claimant is precluded from the payment of double...