                 REPORTED

  IN THE COURT OF SPECIAL APPEALS

            OF MARYLAND


                  No. 2492

          September Term, 2015

______________________________________


          MARCEE ZAKWIEIA

                     v.

   BALTIMORE COUNTY, BOARD OF
           EDUCATION

______________________________________


     Wright,
     Berger,
     Nazarian,


                  JJ.
______________________________________

          Opinion by Berger, J.
______________________________________


     Filed: February 3, 2017
      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.

                            FACTS AND PROCEEDINGS

      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.

                               STANDARD OF REVIEW

       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

       1
         The subsequent orders related to apportionment of disability between the
accidental injury and preexisting injury. Only the offset issue is before us in this appeal.

                                             2
             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 (2015) (citing Gross v. Sessinghause & Ostergaard, Inc., 331 Md. 37, 45-48 (1993)).

Because this case presents only issues of law, we apply the de novo standard of review.




                                             3
                                        DISCUSSION

                                               I.

       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


                                               4
              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


       2
          We note that, although the issue is not properly before us, it appears to be
altogether without merit. Claimant asserts that no offset at all should apply in this case
because SPP § 29-118 applies to members of the Teachers’ Pension System and SPP
§ 29-118 provides an offset only in cases involving accidental and special disability, not
cases involving ordinary disability, such as this case. LE § 9-610 provides that it is the
applicable statute “[e]xcept for benefits subject to an offset under § 29-118 of the State
Personnel and Pensions Article[.]” SPP § 29-118 does not apply to ordinary disability
retirement benefits. To the extent that Claimant asserts that State Retirement and Pension
System v. Thompson, 368 Md. 53 (2002), supports her assertion that the LE § 9-610 offset
does not apply in this case, Claimant is mistaken. In Thompson, the Court of Appeals
construed an earlier version of SPP § 29-118(b)(1), which provided for the reduction of a
“disability retirement benefit” without reference to “accidental or special disability
retirement benefit,” the language found in the current SPP § 29-118(b)(1). Since the
modification of SPP § 29-118(b)(1) in 2004, following the Thompson decision, the statute


                                               5
                                              II.

       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.




applies only to accidental or special disability. Accordingly, LE § 9-610 is the controlling
statute in this case, which involves ordinary disability retirement benefits -- as the parties
apparently agreed at all stages of this proceeding prior to the instant appeal.

                                              6
      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 concerned with, and attempted to prohibit,

governmental authorities being obliged to pay benefits to an employee twice as a result of

the same injury.” Nooe v. City of Baltimore, 28 Md. App. 348, 352 (1975). A predecessor

to LE § 9-610 provided that when an employee was entitled to benefits “equal or better

than that given under the” workers’ compensation law, “such employe[e]s shall not be

entitled to” workers’ compensation benefits. Id. at 349 (quoting Acts 1914, Ch. 800,

Section 34).

      In Montgomery County v. Kaponin, 237 Md. 112 (1964), the Court of Appeals

construed the statute as providing the authority for local governments to exclude

themselves from the obligation to carry workers’ compensation insurance by allowing them

to enact laws that would provide equal or greater benefits than those provided under the

workers’ compensation law. The Kaponin Court held that an employee was entitled to

receive workers’ compensation benefits and benefits from the county when the benefits

provided by the county were not “equal to or greater than” benefits awarded under the

workers’ compensation law. Id. at 114. The Court held that the statute did “not provide

for offsets of workmen’s compensation benefits against the benefits received from a

pension fund.” Id.

      In response to the Kaponin decision, which “to a large extent circumvented” “the

manifest purpose of” the workers’ compensation statute, Nooe, supra, 28 Md. App. at 352,

the General Assembly responded by enacting Ch. 785, Acts 1971 in 1971. Acts 1971, ch.


                                            7
785 was later codified as Section 33 of Article 101, which is the predecessor to LE § 9-610.

In Nooe, we discussed the legislative response to Kaponin as follows:

              Acts 1971, ch. 785, clearly provides for offsets of workmen’s
              compensation benefits against the benefits otherwise furnished
              by a defined employer. It is not a qualification statute such as
              the Court of Appeals found the former statute to be. To the
              extent which, by due legislative enactment, a defined employer
              furnishes an employee with benefits, whether as part of a
              pension system or otherwise, the liability or obligation of the
              employer for any workmen’s compensation benefit is satisfied
              and discharged. If the Workmen’s Compensation Commission
              determines that the benefits furnished by the employer are
              equal to or better than the workmen’s compensation benefits,
              then the liability or obligation of the employer under the
              workmen’s compensation act is fully satisfied and discharged.
              The offset nature of the provisions is readily apparent also from
              the title to the Act which declares that it is to provide that
              ‘whenever benefits are furnished by an employer, as defined,
              equal to or better than the benefits provided under Article 101
              of the Annotated Code of Maryland, such defined employer
              shall be released of any obligation thereunder, but should such
              benefits be less than those required by the said Article 101,
              such defined employer shall make up the difference.’

28 Md. App. 348, 352-53. Our examination of the history of LE § 9-610 makes clear that

the legislative intent of the offset provision is to provide a single recovery for employees

covered by both government pension plans and workers’ compensation. See e.g., Frank v.

Baltimore County, 284 Md. 655, 659 (1979) (“[T]he General Assembly wished to provide

only a single recovery for a single injury for government employees covered by both a

pension plan and workmen’s compensation.”); Mayor & City Council of Baltimore v.

Polomski, 106 Md. App. 689, 697-98 (1995), aff’d, 344 Md. 70 (1996) (“Whether

construing either statue, [LE] 9–503 or 9-610, the unmistakable intent of the Legislature




                                             8
since 1914 has been to provide only a single recovery for governmental employees covered

by both a pension plan and workers’ compensation.”).

       Having set forth the legislative history of and underlying principles behind LE

§ 9-610, we turn to the particulars of the present appeal. Both parties agree that the case

of Reynolds v. Board of Educ. of Prince George’s County, 127 Md. App. 648 (1999), is the

controlling case regarding the “similar benefits” issue. 3    Unsurprisingly, each party

characterizes the holding of Reynolds quite differently.

       In Reynolds, a school bus driver employed by the Prince George’s County Board of

Education developed headaches, respiratory difficulties, and skin irritation as a result of

occupational exposure to diesel fuel and fumes. Id. at 650. The bus driver was awarded

worker’s compensation benefits as well as ordinary disability retirement benefits from her

employer. This Court held that the ordinary disability retirement benefits awarded to the

bus driver were similar to the workers’ compensation permanent partial disability benefits

awarded to appellant, and the offset provision applied. Id. at 655. We reasoned that “[t]he

ordinary disability retirement benefit is tantamount to a wage loss benefit similar to a

workers’ compensation award to the extent that the benefits are payable prior to a point in

time when service retirement benefits would have been payable in the absence of disability

or to any amount in excess of service retirement benefits.” Id. In addition, we commented

that the bus driver suffered from “a single medical condition caused by . . . exposure to


       3
         Although we have not addressed this issue in a reported opinion since 1999, we
note that the Court of Appeals has granted certiorari on this issue in the case of Reger v.
Washington Co. Board of Education, 450 Md. 421 (November 22, 2016), which is
scheduled for argument before the Court of Appeals on March 3, 2017.

                                             9
diesel fuel” and that the bus driver “claimed the same medical condition and physical

incapacity and submitted the same evidence to both the medical board and the

Commission.” Id.

       Claimant maintains that, under Reynolds, the LE § 9-610 offset applies only when

a single medical condition forms the basis for both the ordinary disability retirement

benefits and the workers’ compensation benefits.        In our view, this is an incorrect

interpretation of our holding in Reynolds. The critical similarity in Reynolds was based

upon the benefits provided, not upon the medical condition. In this case, as in Reynolds,

Claimant was awarded both ordinary disability retirement benefits and a workers’

compensation award. As in Reynolds, the retirement benefits awarded to Claimant are

“tantamount to a wage loss benefit similar to a workers’ compensation award.” See id.

       Permitting Claimant to receive both the workers’ compensation award and the

ordinary disability retirement award would result in a windfall to Claimant, wherein

Claimant would receive duplicate benefits for the same underlying basis, i.e. Claimant’s

physical incapacity. This would be contrary to the purposes of LE § 9-610, which, as

discussed supra, are to provide a single recovery for governmental employees covered by

both a disability pension plan and workers’ compensation, to prevent double recovery to

an injured worker, and to prevent double payment by the governmental employer.

       In keeping with the well-established purposes of LE § 9-610, we hold that the proper

interpretation of the term “similar benefits” is whether the benefits provide a similar wage

loss benefit to a workers’ compensation award, not whether the benefits accrue from a

similar injury. In this case, as in Reynolds, the ordinary disability retirement benefits are


                                             10
clearly a wage loss benefit intended to compensate a claimant due to her inability to work

caused by her disability. 4 Accordingly, we hold that that the LE § 9-610 offset applies to

the present case. 5

       Lastly, Claimant asserts that the employer -- here, the Board -- and the Subsequent

Injury Fund cannot both receive the benefit of the LE § 6-910 offset. Claimant maintains

that “there is no foundation in the law” which would permit both the Subsequent Injury

Fund (“SIF”) and the Board to claim an offset for a claim resulting, in part, from a single

pre-existing condition. The clear and unambiguous language of the statute leads us to reject

Claimant’s assertion. LE § 9-610 provides that “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.) The


       4
        Ordinary service retirement benefits, on the other hand, are not a wage loss benefit
intended to compensate a disabled/injured employee, and are not subject to any type of
offset under the worker’s compensation law. Reynolds, supra, 127 Md. App. at 653
(“Service retirement benefits are not similar to accidental disability benefits.”), citing
Newman v. Subsequent Injury Fund, 311 Md. 721 (1988).
       5
         Assuming arguendo that the term “similar” referred to a similar underlying injury,
we are persuaded the LE § 9-610 offset would still apply to the facts of this case. Claimant
suffered pre-existing back problems prior to the December 13, 2007 accidental injury.
When applying for accidental disability retirement benefits, Claimant reported the
December 13, 2007 back injury as the source of her disability. Claimant submitted records
of medical treatment following the December 13, 2007 work injury to the Maryland State
Retirement and Pension System. Both the workers’ compensation awards and the ordinary
disability retirement benefits were based upon the December 13, 2007 injury and the pre-
existing back problems. Although Claimant referenced her separate shoulder problems in
the disability retirement application, the overwhelming majority of the application focused
upon the problems caused by the December 13, 2007 accident. As in Reynolds, “the same
physical incapacity on the part of [Claimant] formed the basis for the workers’
compensation award and for the ordinary disability retirement award.” 127 Md. App. at
655.

                                            11
SIF’s obligation to pay Claimant benefits was triggered by Claimant’s December 13, 2007

work-related injury, which exacerbated her pre-existing conditions. Absent Claimant’s

work-related injury, the SIF would have no obligation to pay any benefits to Claimant

because the pre-existing conditions were not a compensable disability until Claimant’s

condition was made worse by the December 13, 2007 incident. The benefits awarded, both

from the employer and the SIF, are similar to Claimant’s ordinary disability retirement

benefits. As such, the LE § 9-610 offset applies to both the Board and the SIF.

                                         JUDGMENTS OF THE CIRCUIT COURT
                                         FOR BALTIMORE COUNTY AFFIRMED.
                                         COSTS TO BE PAID BY APPELLANT.




                                           12
