Zakwieia v. Balt. Cnty., Bd. of Educ.

Decision Date03 February 2017
Docket NumberNo. 2492, Sept. Term, 2015,2492, Sept. Term, 2015
CourtCourt of Special Appeals of Maryland

Ari N. Laric (Charles S. Schultz, Berman, Sobin, Gross, Feldman & Darby LLP on the brief) all of Lutherville, MD, for Appellant.

Timothy E. McLaughlin (Theresa M. Colwell, Humphreys, McLaughlin & McAleer, LLC on the brief) all of Baltimore, MD, for Appellee.

Wright, Berger, Nazarian, JJ.

Berger, J.

This case is before us on appeal from an order of the Circuit Court for Baltimore County granting summary judgment in favor of the Board of Education of Baltimore County ("the Board"), appellee. The questions presented on appeal involve whether the Board was entitled to apply ordinary disability retirement benefits owed to Marcee Zakwieia ("Claimant"), appellant, as a credit to workers' compensation benefits also owed to her. The circuit court affirmed the decisions of the Maryland Workers' Compensation Commission ("the Commission"), ruling that the Board was entitled to the statutory offset provided in Md. Code (1991, 2008 Repl. Vol.), § 9–610 of the Labor & Employment Article ("LE"). Claimant alleges that the circuit court's ruling was erroneous and presents two questions for our consideration, which we have rephrased slightly as follows:

I. Whether LE § 9–610 applies in determining whether the Board is entitled to a statutory offset for workers' compensation benefits owed to Claimant.
II. Whether the circuit court properly determined that the Board was entitled to an offset for Claimant's workers' compensation benefits pursuant to LE § 9–610.

For the reasons explained herein, we shall affirm.


On December 13, 2007, Claimant suffered an accidental injury to her back while employed by the Board. Thereafter, Claimant filed a claim with the Commission and was awarded workers' compensation benefits for injuries to her back and right shoulder.

Following the injury, Claimant applied for accidental disability retirement benefits through the Maryland State Retirement Agency. Claimant identified December 13, 2007 as the date of the accident which caused her disability. On November 20, 2012, the Maryland State Retirement and Pension System denied Claimant's application for accidental disability retirement benefits but awarded Claimant ordinary disability retirement benefits. Part of the ordinary disability retirement award was due to Claimant's pre-existing back condition related to degenerative arthritis

of the lumbar spine.

A hearing was held before the Commission on March 26, 2014 on, inter alia , the issue of whether the Board was entitled to an offset under LE § 9–610. The Commission issued an order on April 3, 2014 in which the Commission concluded that Claimant's ordinary disability retirement benefits and workers' compensation benefits were "similar benefits" under LE § 9–610(a), and, therefore, were subject to the statutory offset. Claimant filed a request for rehearing on April 18, 2014, raising the offset issue as well as other, unrelated issues that are irrelevant to this appeal. The Commission issued subsequent orders on June 2, 2014 and August 7, 2014.1

Claimant appealed the Commission's orders to the Circuit Court for Baltimore County. Claimant and the Board filed cross-motions for summary judgment. After a hearing, the circuit court upheld the decisions by the Commission and found that the statutory offset in § 9–610 was applicable to Claimant's benefits. This appeal followed.


The entry of summary judgment is governed by Maryland Rule 2–501, which provides:

The court shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.

Md. Rule 2–501(f).

The Court of Appeals has explained the standard of review of a trial court's grant of a motion for summary judgment as follows:

On review of an order granting summary judgment, our analysis "begins with the determination [of] whether a genuine dispute of material fact exists; only in the absence of such a dispute will we review questions of law." D'Aoust v. Diamond , 424 Md. 549, 574, 36 A.3d 941, 955 (2012) (quoting Appiah v. Hall , 416 Md. 533, 546, 7 A.3d 536, 544 (2010) ); O'Connor v. Balt. Cnty. , 382 Md. 102, 110, 854 A.2d 1191, 1196 (2004). If no genuine dispute of material fact exists, this Court determines "whether the Circuit Court correctly entered summary judgment as a matter of law." Anderson v. Council of Unit Owners of the Gables on Tuckerman Condo. , 404 Md. 560, 571, 948 A.2d 11, 18 (2008) (citations omitted). Thus, "[t]he standard of review of a trial court's grant of a motion for summary judgment on the law is de novo, that is, whether the trial court's legal conclusions were legally correct." D'Aoust , 424 Md. at 574, 36 A.3d at 955.

Koste v. Town of Oxford , 431 Md. 14, 24–25, 63 A.3d 582, 589 (2013).

In an appeal of a workers' compensation case, when the issue presented is an issue of law, "we review the decision de novo , without deference to the decisions of either the Commission or the circuit court." Long v. Injured Workers' Ins. Fund , 225 Md.App. 48, 57, 123 A.3d 562 (2015) (citing Gross v. Sessinghause & Ostergaard, Inc. , 331 Md. 37, 45–48, 626 A.2d 55 (1993) ). Because this case presents only issues of law, we apply the de novo standard of review.


Claimant's first assertion is that because she is a member of the Teachers' Pension Union, LE § 9–610 does not apply to the instant case. Claimant asserts that, Md. Code (1993, 2015 Repl. Vol.), § 29–118 of the State Personnel & Pensions Article ("SPP"), is the only controlling statute. Claimant further argues that the circuit court "overlooked the application of SPP § 29–188 altogether and rushed to apply LE § 9–610."

As we shall explain, Claimant's argument is both unpreserved and based upon a misreading of the relevant law.

First, we observe that this argument was not raised before the trial court or administrative agency. The transcript of the March 26, 2014 hearing before the Commission indicates that the parties focused their arguments on the issue of the offset pursuant to LE § 9–610 and did not so much as mention SPP § 29–188. Furthermore, Claimant's motion for summary judgment clearly states that "[t]his case involves an interpretation of § 9–610 of the Maryland Workers' Compensation [A]ct," which is codified at LE § 9–610. Furthermore, at the September 10, 2015 hearing before the circuit court, Claimant's attorney argued as follows:

But now what we have to look at is: Is there an off-set under this receipt of benefits?
And the relevant statute is 9–610, which says that, if a governmental unit, the Board of Education being one of them, provides a benefit to the employee paid by the employer that is similar to any worker's compensation benefits, then there is an off-set, and so the key word is what is similar and are the ordinary disability retirement benefits that [Claimant] is getting similar to her 50 percent disability that is related just to her work accident.

Indeed, the entirety of the argument before the circuit court was based upon the application of LE § 9–610.

Maryland Rule 8–131 governs the scope of appellate review, and provides:

Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.

Md. Rule 8–131(a). Our preservation requirement is equally applicable to administrative appeals. Motor Vehicle Admin. v. Shea , 415 Md. 1, 15, 997 A.2d 768 (2010) ("[A] court ordinarily may not pass upon issues presented to it for the first time on judicial review and that are not encompassed in the final decision of the administrative agency.") (internal quotation omitted). Because this issue was not raised before the administrative agency or the circuit court, we shall not address it on appeal.2


We next turn to the application of LE § 9–610 to the circumstances of the present case. The Commission found, and the circuit court affirmed, that LE § 9–610 was applicable to offset Claimant's benefits. Section 9–610 provides in relevant part:

(a)(1) Except for benefits subject to an offset under § 29–118 of the State Personnel and Pensions Article, if a statute, charter, ordinance, resolution, regulation, or policy, regardless of whether part of a pension system, provides a benefit to a covered employee of a governmental unit or a quasi-public corporation that is subject to this title under § 9–201(2) of this title or, in case of death, to the dependents of the covered employee, payment of the benefit by the employer satisfies, to the extent of the payment, the liability of the employer and the Subsequent Injury Fund for payment of similar benefits under this title.

(Emphasis added.) As we discussed supra , SPP § 29–118 does not apply because this case does not involve accidental or special retirement disability.

The crux of this appeal is whether the workers' compensation benefits awarded to Claimant for her permanent partial disability constitute "similar benefits" to the ordinary disability benefits paid by the Board. Claimant maintains that the LE § 9–610 offset applies only when the basis for both benefits is the result of the same injury . The Board responds that the term "similar" refers to the nature of the benefit awarded to the employee (i.e., disability benefits), and not the nature of the underlying injury. As we shall explain, we agree with the Board's interpretation.

Maryland law has long provided for the offset of workers' compensation benefits against certain other benefits. Indeed, "from the inception of the Workmen's Compensation law, the General Assembly was...

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