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Baltimore County v. Fleming12/30/1996
Opinion by Eyler, J.
The parties, proceeding on an Agreed Statement of Facts, inquire as to whether Baltimore County, appellant, is entitled to an offset against Workers' Compensation benefits based on length of service retirement benefits that Frank S. Fleming, appellee, receives from appellant. More specifically, while both parties agree that appellant is not entitled to an offset under the law in effect prior to 1991, art. 101, § 33, appellant argues that the language of the current law, § 9-610 of the Labor & Employment Article, Md. Code Ann. (hereinafter "LE § "), has been materially changed by the legislature and that the plain meaning of the current law entitles appellant to an offset. Appellee disagrees and, alternatively, argues that the award is governed by art. 101, § 33 "as it existed at the time the claim was filed." We will not reach the issue of statutory interpretation as it is the law in effect at the time of the accidental injury in 1984 that governs.
Agreed Statement of Facts
Appellee was employed as an emergency apparatus operator with the Baltimore County Fire Department. On December 12, 1984, while acting within the scope of his employment, he was involved in an accident and injured his right shoulder. On January 31, 1986, appellee filed a claim with the Maryland Workers' Compensation Commission. This claim was not contested by appellant but was treated as a compensable accidental injury with an average weekly wage of $505. In April 1991, appellee filed Issues with the Commission, seeking permanent partial disability as a result of the injury to appellee's right shoulder. In December 1991, the parties stipulated to an award of 15% to the body for permanent partial disability.
In October 1994, appellee again filed Issues with the Commission, contending that his right shoulder condition had worsened. At approximately the same time, appellee submitted the necessary documentation to obtain his length of service retirement from appellant. Based upon his years as a career firefighter, plus his volunteer and military service, appellee was granted a service retirement effective January 1, 1995. It was appellee's understanding that a length of service retirement could not be used to offset workers' compensation benefits.
Appellee's final average salary for retirement purposes was $46,855, and his initial yearly retirement benefit was $36,916. The last date that permanency benefits were paid, pursuant to the 1991 stipulation, was January 3, 1992. Appellee's claim for worsening of condition was heard by the Commission on March 3, 1995, subsequent to appellee's retirement.
Appellant asserted its right to an offset pursuant to LE § 9-610. The Commission, on October 6, 1995, found that appellee's condition had worsened 5% to a total of 20% permanent partial disability under "other cases" and denied appellant's right to an offset, presumably based on its reading of LE § 9-610. This resulted in the payment of 25 weeks of benefits at $104 per week, payable for a period beginning January 4, 1992; consequently, the entire award was payable over a period prior to appellee's retirement.
Appellant noted an appeal to the Circuit Court for Baltimore County. After the trial court affirmed the Commission's decision, a timely appeal was noted to this Court.
Discussion
The parties have briefed at length, and urge us to decide, an interesting issue of first impression -- the status of Newman v. Subsequent Injury Fund, 311 Md. 721, 537 A.2d 274 (1988), in light of the 1991 recodification of the Workers' Compensation Act. Applying art. 101, § 33, the predecessor to LE § 9-610, the Court of Appeals i
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