Hundt v. Mayor of Baltimore

WILNER, Judge. The Circuit Court for Baltimore City, on summary judgment, affirmed findings by the Workers’ Compensation Commission that (1) on September 28, 1992, while working as a volunteer school aide for the Baltimore City School System, appellant sustained an accidental injury arising out of and in the course of her employment when she slipped on the cafeteria floor and injured her left knee, (2) as a result of that injury, she suffered a permanent partial disability, (3) pursuant to Maryland Code, § 6-107(d) of the Education article and § 9-226(a) of the Labor and Employment article, she was a “covered employee” under the Workers’ Compensation Law and was therefore entitled to the payment of medical expenses arising from the injury, but (4) because, as an unpaid volunteer, she had no average weekly wage, she was not entitled to weekly monetary benefits. [107] The only issue in this appeal is whether the court was correct in its last conclusion.1 Appellant contends that, notwithstanding that she had no average weekly wage, she is nonetheless entitled to minimum benefits of $50/week pursuant to Labor and Empl. art., § 9-626(a). Section 9-626 provides in relevant part: “(a) Except as provided in subsection (b) of this section, a covered employee who is entitled to compensation under this subtitle for a permanent partial disability shall receive minimum weekly compensation of $50. (b) If the covered employee has an average weekly wage of less than $50 at the time of the accidental personal injury ... the covered employee shall receive minimum compensation that equals the average weekly wage of the covered employee.” Appellant’s argument is quite simple. She is a covered employee and is therefore entitled to compensation; she did not have an average weekly wage of less than $50 and, for that reason, her case did not fall under § 9—626(b); ergo, it falls under § 9-626(a). The argument, though simple to state, overlooks the context and development of § 9-626 as well as its plain wording. The Workers’ Compensation Act has undergone many changes since its initial enactment in 1914, but at least four features have remained constant with respect to accidental personal injuries arising out of and in the course of employment. The first is the recognition of four kinds of compensable disability that can result from such injuries: temporary partial, temporary total, permanent partial, and permanent total. The second constant feature is the provision of two principal kinds of benefits to be paid by the employer: weekly [108] cash benefits and medical expenses.2 Third, since its inception, the law has pegged weekly cash benefits for three of the four disability categories—temporary total, permanent partial, and permanent total—to the amount of “average weekly wage” earned by the claimant at the time of the injury. Finally, as a fourth constant, since 1914 the law has provided a minimum weekly benefit with respect to total disabilities, and since 1920 it has provided a minimum weekly benefit with respect to permanent partial disability. In the original enactment, an employee was entitled, for a total disability, whether permanent or partial, to 50% of his or her average weekly wage, not to exceed $12/week and an aggregate of $5,000. 1914 Md. Laws, ch. 800, § 35. The statute also provided a minimum payment of $5/week “unless the employe’s [sic] established weekly wages are less than five dollars per week at the time of the injury, in which event he shall receive compensation in an amount equal to his average weekly wages.... ” Id. In the case of a permanent partial disability, the employee was to receive 50% of his or her average weekly wage, not to exceed $12/week and an aggregate maximum of $3,000, in accordance with a schedule set forth in the statute. Unlike the situation of a total disability, no minimum weekly payment was prescribed for a partial disability. The provision for medical payments, stated in § 36 of the 1914 Act, was not based on average weekly wages but was for services rendered to the employee as required by the Commission, subject to a maximum of $150. In 1920, the Legislature added a minimum weekly benefit provision with respect to cash payments for permanent partial disability, similar to that included in the 1914 Act with respect [109] to total disabilities. 1920 Md. Laws, ch. 456. It set the weekly benefit at two-thirds of the average weekly wage, subject to a maximum of $18/week and an aggregate of $3,750, with a minimum of $8/week “unless the employee’s established weekly wages are less than eight dollars per week at the time of the injury, in which event he shall receive compensation equal to his full wages.” Over the years, the amounts and percentages have changed, but the basic format has not. For a permanent total disability, a covered employee is now entitled to weekly cash benefits in the amount of two-thirds of his or her average weekly wage, not to exceed the amount of the State average weekly wage or be less than $25.3 Labor and Empl. art., § 9-637. If the employee’s average weekly wage is less than $25, the employer is directed to pay benefits equal to the employee’s average weekly wage. § 9-637(a)(2). The amount of cash benefits payable for permanent partial disability depends on the nature of the disability. Section 9-627 contains a schedule establishing the number of weeks for which compensation is to be paid for various kinds of injuries. If compensation is awarded for fewer than 75 weeks, the employee receives benefits in the amount of one-third of his or her average weekly wage, not to exceed $94.20. § 9-628(d). If compensation is awarded for at least 75 weeks but fewer than 250 weeks, the employee receives benefits equivalent to two-thirds of his or her average weekly wage, but not more than one-third of the State average weekly wage. § 9-629. If compensation is awarded for 250 weeks or more, the weekly benefit is in the amount of two-thirds of the employee’s average weekly wage, not to exceed 75% of the State average weekly wage. § 9-630. Section 9-626, which is at issue here, applies only to permanent partial disability. It mirrors, however, the provision in [110] § 9-637(a) applicable to permanent total disability and the provision in § 9-621(a) applicable to temporary total disability. Compensation for permanent partial disability is set at two-thirds of the employee’s average weekly wage, with a minimum of $50 unless the average weekly wage is less than that. If it is, the employee receives the full amount of his or her average weekly wage. As to each of these categories, then, the Legislature has crafted a scheme of paying the employee weekly cash benefits equivalent to a percentage of the employee’s average weekly wage unless that wage falls below a minimum amount, in which case the employee receives the full amount of his or her average weekly wage. The only exception to this approach is temporary partial disability, for which the employee is compensated only if the disability causes his or her wage-earning capacity to decrease, in which event the employee receives 50% of the difference between his or her average weekly wage and his or her wage-earning capacity while temporarily partially disabled. § 9-615. No minimum benefit is provided for that kind of disability. The original 1914 Act covered only employees engaged in “extra-hazardous” employment. In § 32, it enumerated 41 specific categories of such employment plus a catch-all of “all extrahazardous employments not specifically enumerated herein.” In § 62, the law defined “employe [sic]” as a person engaged in extrahazardous employment in the service of an employer conducting business upon the premises but specifically excluded from that definition farm laborers, domestic servants, blacksmiths, wheelwrights, and other rural employees. The law did not, in either section, expressly include, exclude, or even mention volunteers. In 1970, the Legislature combined the inclusions and exclusions into one section—§ 21 of art. 101. Section 21(a) dealt with employers; § 21(b) set forth the categories of employees who were covered under the Act; and § 21(c) enumerated the categories of employees who were “exempt” from coverage. Although nothing explicit was said about volunteers being [111] covered or not covered, § 21(b)(4) provided, among other things, that members of volunteer fire and police departments were to be regarded as employed by the political subdivision where the department was located and “regularly enrolled volunteer member[s] or trainee[s]” of the civil defense corps were to be regarded as employed by the State. 1970 Md. Laws, ch. 741. Whether that attribution actually made them covered employees is not clear, either from the text of the statute or from its title, although there is at least a fair implication that, by mentioning them in § 21(b), the Legislature intended that they be covered. In 1971, the Legislature attempted, in yet another rewriting of § 21, to clarify the status of those persons. Persons in the service of political subdivisions and their agencies “under any contract of hire,” as well as elected and appointed officials, were already included as covered employees under § 21(b). By 1971 Md. Laws, ch. 733, the Legislature added to the list of exempt categories in § 21(c) members of volunteer police and fire departments, non-salaried members of boards and commissions, volunteer civil defense members or trainees, and “volunteer workers for agencies or departments of political subdivisions” in 12 counties. When coupled with what already existed in § 21(b), it would seem that, in limiting those exemptions to the 12 listed counties, the Legislature, at least implicitly, intended to include as covered employees those categories of persons in Baltimore City and the other 11 counties. In 1972 the General Assembly first made volunteer aides working in the public school systems covered employees. It accomplished that result by adding a new § 112A to art. 77 of the Code—the article then devoted to public education— authorizing the local boards of education to use volunteer aides in school activities and declaring those aides to be agents of the local board for the purpose of comprehensive liability insurance coverage “and for purposes of workman’s compensation coverage under section 21 of article 101.” 1972 Md. Laws, ch. 220. At the time, it neglected to amend art. 101, § 21(b) to include those persons but effected their coverage solely through the amendment to art. 77. That omission was [112] corrected in 1991 as part of the Code Revision Labor and Employment article. See Labor and Empl. art., § 9-226;4 1991 Md. Laws, ch. 8. The pegging of weekly cash benefits to the employee’s average weekly wage works without difficulty as to paid employees, for they all have an average weekly wage in some amount to which the appropriate formula can be applied. When various categories of unpaid volunteers were added as covered employees, however, the problem we now face was created. There is no doubt that they are entitled to the medical benefits provided for in §§ 9-660 and 9-661, for those benefits are available to covered employees without regard to average weekly wage. The question is whether the Legislature intended to provide them with weekly cash benefits as well and, if so, on what basis. As noted, coverage for volunteer school aides came about in 1972. The General Assembly did not record legislative history or even retain its bill files at that time, and we are therefore unable to determine whether any actual thought was then given to the question. The same lapse appears with respect to the other categories of volunteers added as covered employees. We may presume that the 1972 Legislature was aware that weekly cash payments for all but temporary partial disability benefits were based on the employee’s average weekly wage, as the section containing those provisions (§ 86 of art. 101) was not only amended in that same 1972 session but had been amended in each of the five preceding sessions as well. It may fairly be inferred, then, that, by making no provision for weekly cash benefits for those volunteers, the Legislature was content to have only their medical expenses covered. [113] We need not rest on an inference from silence in 1972, however. In 1991, when the Code Revision Labor and Employment article was presented to the Legislature, the Department of Legislative Reference called specific attention to the gap. In its comment on § 9-602, defining and providing for the calculation of an employee’s average weekly wage, the Department noted: “Proposed § 9-602 provides for the computation of the average weekly wage of a covered employee. Sections 6-107 and 6-108 of the Education Article provide workers’ compensation coverage for volunteer aides and student teachers and interns. However, those sections do not provide for the average weekly wage to be used in computing benefits. The General Assembly may wish to consider providing an average weekly wage for volunteer aides and student teachers and interns.” See Report On House Bill 1, Dep’t of Legisl. Ref., Jan. 14, 1991, at 39. Notwithstanding that advice, the General Assembly chose not to establish an average weekly wage, or method of imputing one, for school volunteers, as it had previously done for volunteer fire and rescue company personnel, handicapped students, and volunteer deputy sheriffs in Cecil County. See Labor and Empl. art., § 9—602(d), (g), and (j)- Section 9-626 and its counterparts in §§ 9-621 and 9-637 have a clear and rational meaning and purpose when applied to paid employees. If the employee’s average weekly wage is less than $50, the employee is entitled to benefits equal to the full amount of his or her average weekly wage. If the employee’s average weekly wage is $50 or more, the statute assures that he or she will receive at least $50. Were it not for that provision, the employee would receive only one-third or two-thirds of his or her average weekly wage, depending on whether the benefits are to extend for more than 75 weeks, and, in either event, that could produce an amount less than [114] $50.5 The net effect and sole purpose of § 9-626(a) is to assure than an employee having an average weekly wage of between $50 and $75 or $150 (depending on whether the benefit is pegged at one-third or two-thirds of his or her average weekly wage) is not treated worse than an employee having an average weekly wage of less than $50. To apply it to a volunteer having no average weekly wage would create the anomaly of an unpaid person receiving greater benefits than a paid employee earning less than $50/week. There is nothing in any of the legislative history of the statute, since its inception in 1914, suggesting such a purpose or intention by the Legislature, and we can find no basis for giving the statute such a strained reading. Treating it as applicable only to employees having an actual average weekly wage does not produce any absurd result, as appellant contends, but is consistent with the very rationale for providing weekly cash benefits—to compensate employees “for loss of earning capacity resulting from accidental injuries sustained in industrial employment.” Bethlehem-Sparrows Shipyard, Inc. v. Damasiewicz, 187 Md. 474, 480, 50 A.2d 799, 802 (1947). See also Tortuga, Inc. v. Wolfensberger, 97 Md.App. 79, 83, 627 A.2d 56, 58 (citing Cox v. American Store Equip. Corp., 283 F.Supp. 390, 394 (D.Md.1968)), cert. denied, 332 Md. 703, 632 A.2d 1209 (1993); Richard P. Gilbert and Robert L. Humphries, Maryland Workers’ Compensation Handbook § 9.0-2 (2d ed. 1993). It is entirely reasonable to infer that, when the Legislature made these unpaid volunteers covered employees, it intended only that they be eligible for non-income based benefits in the event of on-the-job injuries.6 [115] JUDGMENT AFFIRMED; APPELLANT TO PAY THE COSTS. CHASANOW, J., concurs in the result. Footnotes [1] Prior to the finding of a permanent partial disability, appellant was found to have sustained a temporary total disability. She did not seek weekly monetary benefits for the temporary disability, and her entitlement to such benefits is not an issue in this appeal. [2] Since 1914, in the section requiring employers to pay medical benefits, the law also required them to pay part of the funeral expenses of the employee if the employee died within a certain period of time after the accident. In 1968, the Legislature added a third category of benefits—vocational rehabilitation. See 1968 Md. Laws, ch. 744; Labor and Empl. art., §§ 9-670 through 9-675. [3] The use of a State average weekly wage as an alternative cap on weekly monetary benefits came about in 1968 with regard to temporary total disability. See 1968 Md. Laws, ch. 743. It was applied to permanent total disability in 1971. See 1971 Md. Laws, ch. 404. [4] The Legislature intended to correct the omission apart from the Code Revision bill. It passed another bill in that session, 1991 Md. Laws, ch. 329, amending art. 21, § 21(b) to include those volunteers but, aware of the pendency of the Labor and Employment article containing the same provision, provided that ch. 329 would be void if the Code Revision bill was enacted. [5] If, for example, the employee had an average weekly wage of $60, but for § 9-626(a), he or she would receive benefits of only $40 if the benefits were to extend beyond 75 weeks, and only $20 if the benefits were for less than 75 weeks. [6] In addition to traditional medical, surgical, hospital, prosthetic devices, and nursing benefits provided for in § 9-660, § 9-661 requires [115] an employer also to repair or replace an employee’s eyeglasses and prosthetic devices damaged or destroyed because of a covered accident.