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Jung v. Southland Corp.3/27/1997
Opinion by Eyler, J.
We are called upon to interpret the Workers' Compensation Act and to decide whether the Workers' Compensation Commission has the authority to modify an injured employee's "average weekly wage," based on an increase in wages subsequent to the accidental injury and subsequent to the initial determination of "average weekly wage."
For the reasons set forth below, we affirm the decision of the trial court and hold that "average weekly wage" cannot be modified based on an actual increase in wages occurring subsequent to the accidental injury .
Facts
Appellant, Peter Jung, filed a Workers' Compensation claim on August 3, 1992, as the result of an accidental injury sustained on June 30, 1992 while in the course of employment. On October 27, 1992, the Commission awarded temporary total disability benefits from June 30, 1992, continuing until December 21, 1992, at the rate of $193 per week based on an average weekly wage of $288.12. The claim was not contested by appellees, Southland Corporation, employer, and American Protection Insurance Company, insurer. In December, appellant returned to work.
On July 28, 1995, appellant began losing time from work due to the 1992 injury . Appellees began paying temporary total benefits in the amount of $193 per week, the same amount as previously determined. On November 17, 1995, appellant filed Issues with the Commission, seeking an upward adjustment of his average weekly wage to reflect his most recent hourly rate, pursuant to Md. Code Ann., Labor & Employment Art. § 9-622 (1991 Repl. Vol., 1992 Supp.). After a hearing before the Commission on January 22, 1996, the Commission issued an order dated January 29, 1996, allowing the claim for temporary total benefits from July 28, 1995 and continuing during the period of temporary total disability. In doing so, the Commission upwardly adjusted appellant's average weekly wage based upon appellant's current wages, finding that the "average weekly wage shall be $320.75 pursuant to § 9-602[(a)](3) of the Labor Article," and awarded benefits in the amount of $214 per week.
Because of the modification, appellees appealed to the Circuit Court for Montgomery County and moved for partial summary judgment on the ground that the Commission lacked authority under the law to adjust the average weekly wage based on appellant's current wages. After appellant's response and a hearing, the trial court granted the motion. This appeal followed.
Discussion
This is a case of first impression in Maryland and has been dealt with infrequently in other jurisdictions. As in all cases of statutory interpretation, we seek to determine the intention of the Legislature.
Appellant argues that the Commission has discretion to increase appellant's previously determined average weekly wage pursuant to the authority to reopen a claim contained in § 9622(a) and to modify an award pursuant to § 9-736(b). Section 9622(a) provides:
Amount of payment. - If, under an initial claim filed on or after January 1, 1988, temporary total disability benefits are reopened under § 9-736(b) of this title, the employer or its insurer shall pay the covered employee compensation that equals two-thirds of the average weekly wage of the covered employee, but
(1) does not exceed the lesser of:
(i) the average weekly wage of the State on the date of reopening; or
(ii) 150% of the initial award; and
(2) is not less than the initial award.
Appellant asserts that the January 29, 1996 order constitutes a "reopening" within the meaning of § 9-622 and that a finding of
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