Baltimore County Maryland, et al. v. Carroll Thiergartner
No. 44, September Term, 2014

Jeffrey Walters v. Baltimore County Maryland
No. 58, September Term, 2014


Workers’ Compensation Benefits - Presumption Accorded Public Safety Employees -
Offset for Retirement Benefits - Deferred Retirement Option Benefits. The State
Workers’ Compensation Act includes a special presumption for public safety employees that
certain medical conditions are the result of an occupational disease and are compensable
under the Act. Benefits paid as a result of that presumption, however, are capped such that
the weekly total of those benefits and any retirement benefits received by the individual do
not exceed the individual’s average weekly salary; if the total exceeds the average weekly
salary, the workers’ compensation benefits are reduced by the amount of the excess. One
form of retirement benefits available to long-time employees of Baltimore County was the
Deferred Retirement Option Program (“DROP”), under which an employee delayed
retirement in return for benefits that could be received as a lump sum upon retirement or as
part of an enhanced monthly retirement payment. A lump sum DROP payment must be
converted to a weekly amount for purposes of the offset computation in the Workers’
Compensation Act. The method adopted by the Workers’ Compensation Commission in one
of these cases – using the higher recurring benefits figure that would have been paid if the
individual had made a different election with respect to the DROP – was a reasonable way
of doing so. Maryland Code, Labor & Employment Article, §9-503; Baltimore County Code,
§5-1-302.
Circuit Court for Baltimore County
Thiergartner: Case No. 03-C-12-001950
Walters: Case Nos. 03-C-09-002702,
                  03-C-09-009329
Argued: February 10, 2015
                                           IN THE COURT OF APPEALS
                                                 OF MARYLAND

                                                   Nos. 44 and 58

                                               September Term, 2014


                                        B ALTIMORE C OUNTY, M ARYLAND ET AL.

                                                         v.

                                              C ARROLL T HIERGARTNER


                                                 J EFFREY W ALTERS

                                                         V.

                                          B ALTIMORE C OUNTY, M ARYLAND


                                                       Barbera, C.J.
                                                       Harrell
                                                       Battaglia
                                                       Greene
                                                       Adkins
                                                       McDonald
                                                       Watts,

                                                              JJ.


                                              Opinion by McDonald, J.


                                                Filed: April 20, 2015
       These cases reach us in somewhat different procedural postures, but the issue is the

same in both. Both cases concern a limit that the Legislature has placed on workers’

compensation benefits that a retired public safety employee may receive under a special

presumption in the Maryland Workers’ Compensation Act – a limit based in part on the

amount of retirement benefits that the individual also receives.

       A provision of the workers’ compensation law creates a presumption favorable to

certain categories of public safety employees. In particular, the law presumes that certain

disabling medical conditions, such as heart disease, hypertension, and lung disease, are

occupational diseases suffered in the line of duty and are therefore compensable under the

workers’ compensation law. However, the statute caps those benefits: the sum of workers’

compensation benefits and a retired employee’s retirement benefits may not exceed the

employee’s average weekly salary during employment. The formula for capping workers’

compensation benefits, seemingly simple in its description, inevitably raises questions in its

implementation, particularly when its components take different forms paid on different

timetables.

       The retirement benefits involved in these cases derive in part from an optional

retirement program once offered by Baltimore County. The program was designed to

encourage senior employees, otherwise eligible to retire, to remain on the job in return for

enhanced retirement benefits – an enhancement that can be taken in a lump sum upon

retirement or in other ways that result in higher recurring retirement payments. The two

retired firefighters in these cases – Carroll Thiergartner, the Respondent in No. 44, and
Jeffrey Walters, the Appellant in No. 581 – participated in that program and opted to receive

the enhancement as a lump sum payment upon their retirements. Both retirees also qualified

for workers’ compensation benefits as a result of the special presumption for public safety

employees. The issue in both cases is how the lump sum retirement payment is to be

included in the formula for capping their workers’ compensation benefits.

       We hold that the statute that imposes the cap on weekly workers’ compensation

benefits necessarily contemplates a comparison involving payments, such as salary and

retirement benefits, that are paid on different time schedules and that must be converted to

a weekly number to apply the statutory formula. There is no evident reason to exclude a

lump sum paid at the outset of retirement from such a conversion when applying the statutory

formula.

       As to the manner of including the lump sum payment in that formula, we decline to

adopt the method proposed by the retirees, which would treat the lump sum differently from

other retirement benefits and count it only for the particular week in which it was paid. Nor

do we adopt the method proposed by the County which, although it would convert the lump

sum to a weekly figure for a period of time, would front-load that amount to offset workers’

compensation benefits completely for that period.




       1
        The two cases involve a different pair of appellations for the parties
(Petitioner/Respondent v. Appellant/Appellee) because the Thiergartner case made a stop
at the Court of Special Appeals en route to us while the Walters case did not. See Maryland
Rule 8-111.

                                              2
       In our view, the most reasonable and accurate way to convert this portion of

retirement benefits to a weekly figure would be to compute a figure for a stream of weekly

amounts over the course of retirement that equates in some reasonable way to the lump sum

payment. Such an approach is consistent with prior appellate decisions concerning another

offset provision in the Workers’ Compensation Act.           The Workers’ Compensation

Commission adopted such a method in the Thiergartner case.

                                              I

                                       Background

Workers’ Compensation and Public Safety Employees

       The Maryland Workers’ Compensation Act, codified at Maryland Code, Labor &

Employment Article (“LE”), §9–101 et seq., is designed to ensure that employees receive

compensation for disabilities resulting from work-related injuries and occupational diseases.

R.P. Gilbert, et al., Maryland Workers’ Compensation Handbook (4th ed. 2013), §§1.03,

7.01. That law provides special consideration for public safety employees by creating a

presumption that certain disabling diseases or conditions are occupational diseases suffered

in the line of duty and therefore compensable under the workers’ compensation law. LE §9-

503.2 Pertinent to these cases, the statute provides that a paid firefighter who suffers from




       2
         The history of the workers’ compensation law and the presumption that certain
disabilities suffered by public safety employees or retirees are related to their employment
is discussed in some detail in Polomski v. Mayor and City Council of Baltimore, 344 Md. 70,
76-79, 684 A.2d 1338 (1996).

                                              3
heart disease, hypertension, or lung disease that results in total or partial disability or death

“is presumed to have an occupational disease that was suffered in the line of duty and is

compensable under [the workers’ compensation law].” LE §9-503(a).

       Many firefighters who qualify for that presumption will be retired and will be

receiving retirement benefits as a result of their employment as a firefighter. The statute

provides for an adjustment of any workers’ compensation benefits awarded to such an

employee. Under that provision, the workers’ compensation benefits received as a result of

the presumption are to be offset in certain circumstances by retirement benefits that the

individual receives.3 In particular, the statute provides as follows:

                       (1)    Except as provided in paragraph (2) of this
               subsection, any [firefighter] eligible for benefits under [LE §9-
               503(a)] shall receive the benefits in addition to any benefits that
               the individual ... [is] entitled to receive under the retirement
               system in which the individual was a participant at the time of
               the claim.

                    (2)    The benefits received under [the workers’
               compensation law] shall be adjusted so that the weekly total of




       3
         The Workers’ Compensation Act also contains a provision that offsets workers’
compensation benefits by retirement benefits related to disability – a provision designed to
prevent what might be considered “double dipping” as both governmental payments would
relate to the same disability. See LE §9-610; Blevins v. Baltimore County, 352 Md. 620, 639-
40, 724 A.2d 22 (1999); Newman v. Subsequent Injury Fund, 311 Md. 721, 728, 537 A.2d
274 (1988). The offset provision in LE §9-503(e)(2) is somewhat different in nature in that
the offsetting retirement benefits are not necessarily related to the disability that supports the
workers’ compensation award. Rather, the offset in LE §9-503(e)(2) appears to be designed
to moderate the fiscal effect of the generous presumption accorded to public safety
employees in LE §9-503(a).

                                                4
               those benefits and retirement benefits does not exceed the
               weekly salary that was paid to the ... firefighter ....

LE §9-503(e). On its face, the statutory formula appears to be a straightforward exercise that

involves (1) adding two numbers (the weekly workers’ compensation benefit and weekly

retirement benefit), (2) comparing the result to the weekly salary earned by the firefighter

during employment, and (3) if the result exceeds the weekly salary, reducing the workers’

compensation benefit by the amount of the difference. But things are never so simple as they

seem.

The Baltimore County DROP Program

        Like a number of other jurisdictions, Baltimore County has included in its personnel

law a provision known as the Deferred Retirement Option Program (“DROP”). The DROP

is designed to retain certain categories of long-time County employees who might otherwise

choose to retire by offering them the option of an enhanced retirement benefit if an employee

defers retirement and remains an active County employee.

        Under the DROP related to firefighters, a County firefighter who is eligible to retire

and has the requisite years of service may elect to participate in the DROP. The employee

then continues to work for the County as an active employee while deferring certain

compensation related to the forgone pension payments and ongoing employee pension

contributions in a special account. Baltimore County Code, §5-1-302(b)-(e). In particular,

when the employee elects to participate in the DROP, an account is created for the employee

that includes (1) an amount equivalent to a year’s worth of pension payments for each year

                                              5
that the employee continues to work for the County after the employee becomes eligible for

retirement (the “DROP period”); (2) the retirement contributions made by the employee

during the DROP period; and (3) interest earned on the amounts in the DROP account.

Baltimore County Code, §5-1-302(e).

       When the period of deferred retirement comes to an end and the employee actually

retires, the employee has a choice as to how to receive the amount in the DROP account. The

employee can elect to receive the accumulated amount in the DROP account as a lump sum

or roll it over into an eligible retirement plan and thereby enhance future retirement benefits.

Baltimore County Code, §5-1-302(f).

Thiergartner

       Mr. Thiergartner was employed as a sworn firefighter with Baltimore County for 33

years. He retired in September 2005. At the time of his retirement, Mr. Thiergartner elected

to receive a lump sum from his DROP account. He received a payment of $189,346.90

within 30 days of that election. He also began to receive a monthly retirement allowance of

$3,672.07. Converted to a weekly figure, that amount is $847.40 per week.

       In February 2011, more than five years after his retirement, Mr. Thiergartner filed a

workers’ compensation claim for heart disease related to his employment. In his claim, he

identified the date of disablement as May 19, 2010.

       In June 2011, applying the presumption in LE §9-503(a), the Workers’ Compensation

Commission found that Mr. Thiergartner had sustained an occupational disease – coronary



                                               6
artery disease – related to his employment as a firefighter and agreed that the first date of

disablement was May 19, 2010. It found that he was entitled to a maximum weekly benefit

for a permanent partial disability of $307 for 125 weeks. The Commission order identified

his “average weekly wage” as $1,213.80.

       The Commission also computed the offset under LE §9-503(e)(2). As described

above, in order to apply the offset, one must compare Mr. Thiergartner’s combined

retirement and workers’ compensation benefits, expressed as an aggregate weekly amount,

with his “weekly salary.” Setting aside the lump sum DROP payment for the moment, Mr.

Thiergartner’s ongoing pension payment, converted from a monthly figure to a weekly

figure, is $847.40; his maximum weekly workers’ compensation benefit under the

Commission’s award is $307.00. Added together, they amount to $1,154.40 per week.

Assuming that “weekly salary” for purposes of LE §9-503(e) is equivalent to “average

weekly wage,”4 there would be no offset, as the combined figure ($1,154.40) does not exceed



       4
         There is no definition of the phrase “weekly salary” in the statute. In computing the
offset in these cases, the Commission apparently assumed that “weekly salary” is equivalent
to “average weekly wage,” a phrase defined in the Workers’ Compensation Act. See LE §9-
602. When the offset formula was recodified in 1991 as part of the new Labor &
Employment Article, the code revisors noted, for consideration by the General Assembly that
the statute did not specify the period of time that should be used for determining the “weekly
salary” of the individual. Chapter 8, §2, Laws of Maryland 1991 at pp. 850-51. The General
Assembly has not yet responded to the revisors’ suggestion.

       In the Circuit Court in the Walters case, the County argued that the phrase “weekly
salary” is susceptible to a different interpretation than “average weekly wage,” which
resulted, at least in that case, in a lower figure. See footnote 6 below. The County did not
include that issue in its petitions for certiorari in these cases and the merits of the

                                              7
$1,213.80. Whether there should be an offset under the statutory formula will depend on

whether – and how – the DROP benefit is included in this comparison.

       In February 2012, the Commission held that the DROP benefit should be included in

the computation on a pro-rated basis. To come up with a pro-rated figure, the Commission

looked to the higher monthly retirement benefit that Mr. Thiergartner would have received

if he had not elected to receive the DROP benefit as a lump sum payment. That amount,

converted to a weekly figure, was $946.15.5 Applying the statutory cap, the Commission set

the weekly payment of workers’ compensation benefits, after what amounted to a partial

offset, as $272.03 for a period of 125 weeks.

       The County sought judicial review of the Commission’s decision in the Circuit Court

for Baltimore County. The County did not challenge the Commission’s conclusion that Mr.

Thiergartner was entitled to benefits as a result of the statutory presumption, but excepted

to its computation of the offset. Following a hearing on the parties’ cross motions for

summary judgment, that court granted Mr. Thiergartner’s motion, denied the County’s

motion, and affirmed the Commission’s decision.


Commission’s use of the average weekly wage figure is not before us.
       5
         There is some discrepancy in the record before us as to the origin of that figure. At
the hearing in the Circuit Court and in his brief before us, Mr. Thiergartner’s counsel stated
that the figure was based on the monthly benefit that Mr. Thiergartner would have received
if he had elected to take the DROP benefit as an enhanced monthly retirement benefit instead
of as a lump sum. Before us, the County’s counsel stated that it was based on the monthly
benefit Mr. Thiergartner would have received if he had never participated in the DROP. We
need not resolve this discrepancy for purposes of this opinion other than to note that the
former method would appear to be a more precise way of pro-rating the DROP payment.

                                              8
       The County appealed the decision to the Court of Special Appeals. The intermediate

appellate court affirmed the judgment of the Circuit Court in favor of Mr. Thiergartner, but

ordered that the case be remanded to the Commission to recalculate the monthly benefit in

a way that eliminated any offset. 216 Md. App. 560, 88 A.3d 844 (2014). It held that,

because the offset formula in LE §9-503(e) referred to a “weekly total” of retirement and

workers’ compensation benefits, there was no occasion for factoring in the lump sum DROP

payment that Mr. Thiergartner had received at the outset of his retirement well before he was

awarded any workers’ compensation benefits.

       We granted the County’s petition for a writ of certiorari to consider whether the lump

sum DROP payment should be factored into the computation required by LE §9-503(e)(2)

and, if so, how.

Walters

       Mr. Walters’ case began earlier than Mr. Thiergartner’s case, but arrived at our Court

later. Like Mr. Thiergartner, Mr. Walters was a firefighter with Baltimore County for more

than 30 years. He retired in June 2006. Mr. Walters had participated in the DROP and, upon

retirement, elected to receive a lump sum in the amount of $146,959.90. He also began to

receive monthly retirement benefits of $3,745.00. Converted to a weekly figure, the

retirement benefits amount to $846.23 per week. (The record does not indicate what his

monthly retirement benefit – or its weekly equivalent – would have been, if he had elected




                                             9
to take the DROP benefit as an enhanced monthly retirement payment instead of as a lump

sum).

        Two years after his retirement, Mr. Walters had a heart attack and was diagnosed as

having heart disease. In July 2008, Mr. Walters filed a claim for workers’ compensation

benefits. The County contested the claim. In February 2009, the Commission awarded Mr.

Walters permanent partial disability benefits of $685 per week for 333 weeks. In order to

determine the offset under LE §9-503(e)(2), it determined that his average weekly wage was

$1,282.00 and converted his monthly retirement benefits to $864.23 per week. This resulted

in a partial offset that reduced Mr. Walters’ workers’ compensation benefit to approximately

$417 per week.

        Unlike Mr. Thiergartner’s case – which would not come before the Commission until

two years later – the County initially did not ask the Commission to include the DROP lump

sum payment in its computation of the offset amount and the Commission’s order made no

reference to the DROP payment.

        The County later sought judicial review of the Commission’s award in the Circuit

Court for Baltimore County, arguing that there should be an offset for the DROP lump sum,

and also asked the Commission to modify its order for the same reason. In the meantime, it

did not pay any workers’ compensation benefits to Mr. Walters, apparently on the theory (1)

that the offset provision in LE §9-503(e)(2) was effective as a matter of law, even if not

included in the Commission’s order, and (2) that Mr. Walters’ workers’ compensation



                                            10
benefits should be offset dollar for dollar by the lump sum DROP payment until the amount

of the offsets equaled the amount of the lump sum – a time that, given the figures involved,

would be considerably in the future.6 There followed litigation before the Commission, the

Circuit Court, and the Court of Special Appeals in which Mr. Walters sought to compel the

County to pay the Commission’s award while the County pursued judicial review of the

award. It resulted in the intermediate appellate court dismissing the County’s appeal and

remanding to the Circuit Court to conduct a hearing “on the role of the DROP funds, if any,

in the calculation of the offset.”

         Before the Circuit Court, Mr. Walters won the battle – the court ordered the County

to comply with the Commission order while the matter was under judicial review – but lost

the war. The Circuit Court eventually sided with the County on its interpretation of the offset

provision and, in a written opinion issued in July 2011, ordered that the lump sum be applied

to offset workers’ compensation benefits until the full amount of the DROP payment has

been credited against the workers’ compensation benefits, a period that it computed to be 352

weeks.




         6
        The County subtracted the weekly retirement benefit figure from the average weekly
wage found by the Commission to derive a “gap” of $417. Dividing that amount into the
lump sum DROP payment received by Mr. Walters, the County argued that it was entitled
to offset any workers’ compensation benefits up to $417 for 352.42 weeks – nearly seven
years. (The County also urged that a lower figure be used for “average weekly salary” which
would result in a “gap” of $190.36. When the County’s method of computing the offset was
used with this figure, the complete offset of workers’ compensation benefits would last 772
weeks – nearly 15 years).

                                              11
       Mr. Walters appealed that decision. After briefs had been filed, but before argument

was held in the Court of Special Appeals, the County filed a petition for certiorari and

suggested that we hear the case together with the Thiergartner case in the interest of judicial

economy. Mr. Walters, who is represented by the same counsel as Mr. Thiergartner, did not

oppose the petition. We granted the petition and accepted the County’s suggestion that we

consider the cases together.

                                              II

                                         Discussion

       There is no dispute as to the underlying facts in either of these cases. The result in

both cases turns on a question of law: Is a lump sum DROP payment a retirement benefit

that is to be offset against workers’ compensation benefits pursuant to LE §9-503(e)(2) and,

if so, how?

Standard of Review

       In a judicial proceeding to review an award of the Commission, the decision of the

Commission is “presumed to be prima facie correct.” LE §9-745(b)(1). A court may reverse

a Commission decision only if the court finds that the Commission’s action was based on an

erroneous construction of the facts or law. Frank v. Baltimore County, 284 Md. 655, 658,

399 A.2d 250 (1979); LE §9-745(c)(3). As indicated above, the facts are undisputed and the

issue is purely one of law.




                                              12
       Because we are dealing with a question of law, we accord no special deference to the

decisions of the Circuit Court or the Court of Special Appeals. Of course, as in any case

where another court has given thoughtful consideration of the legal issue at stake, this does

not prevent us from taking advantage of the reasoning and analysis of the courts that have

considered the same issue that is before us. Sturdivant v. Department of Health & Mental

Hygiene, 436 Md. 584, 587-88, 84 A.3d 83 (2014).

Whether the Lump Sum DROP Payment Should be Included in the Offset Computation

       There can be no dispute that the DROP payment is a retirement benefit for purposes

of LE §9-503(e)(2).     See Polomski, 344 Md. at 82 (construing “retirement benefits”

referenced in statute broadly to “make no distinction between [those] accruing by reason of

age and service versus those accruing as the result of a disability”); cf. Dennis v. Fire &

Police Employees’ Retirement System, 390 Md. 639, 651, 890 A.2d 737 (2006) (DROP

payments are pension benefits for purposes of qualified domestic relations order). Nor does

there appear to be any dispute that the lump sum DROP payment must be accounted for in

some way in the formula set forth in LE §9-503(e)(2).7




       7
        Counsel for Mr. Thiergartner and Mr. Walters has cited a provision of the County
Code that provides that benefits from a deferred compensation program do not “effect a
reduction of the amount of any ... other benefit provided by law.” Baltimore County Code,
§5-2-105. It is not entirely clear that this provision applies to the DROP, which appears in
a different title of Article 5 of the County Code. In any event, State law clearly provides for
an offset in LE §9-503(e)(2) and counsel for the retirees does not argue that the County Code
provision would prevail over the State statute.

                                              13
How the Lump sum DROP Payment Should be Included in the Offset Computation

       As noted above, the offset provision in LE §9-503(e)(2) provides simply that “the

benefits received [under the workers’ compensation law] shall be adjusted so that the weekly

total of those benefits and retirement benefits does not exceed the weekly salary that was paid

to the ... firefighter ....” The statutory offset formula thus contemplates a comparison of a

retiree’s “weekly salary” with the workers’ compensation award (which is typically expressed

as a weekly amount) and retirement benefits which, for purposes of the comparison, must be

expressed as a weekly figure. This means that any retirement benefit payment not paid on

a weekly basis – which is likely true for most, if not all, retirement payments – must be

converted to a weekly figure for this formula. The statute does not explicitly state how to do

this. What legislative history exists is also silent on this question.8




       8
        The presumption favoring certain firefighters was originally added to the workers’
compensation law in 1971 prior to the time when the General Assembly retained legislative
background materials pertaining to individual bills. Chapter 695, Laws of Maryland 1971,
enacting Maryland Code, Article 101, §64A. As originally enacted, that section provided
that the workers’ compensation benefits that a firefighter received with the benefit of the
presumption would be “in addition to such benefits as he may be entitled to under the
retirement system in which said firefighter was a participant at the time of his claim.” It went
on to provide that the workers’ compensation benefits were to be adjusted so that “the total
of all weekly benefits” would not exceed the weekly salary of the firefighter. Although the
statute was tweaked in a number of respects over subsequent years, the language defining the
offset formula remained intact until the provision was recodified in the new Labor and
Employment Article in 1991. At that time, the code revisors stated that the current statutory
language was derived without substantive change from the original language. Chapter 8, §2,
Laws of Maryland 1991 at pp. 850-51.

                                               14
        A case concerning another offset provision of the Workers’ Compensation Act

provides some guidance. See Blevins v. Baltimore County, 352 Md. 620, 724 A.2d 22

(1999). Blevins concerned an offset provision, codified at LE §9-610, that is designed to

avoid duplicative disability payments to government employees and retirees.9 It states that,

if a governmental employer provides a benefit to an employee that exceeds the employer’s

obligation to pay workers’ compensation benefits, that payment offsets the employer’s

obligation to pay workers’ compensation benefits. This Court held that a workers’

compensation benefit awarded for a period preceding the employee’s disability retirement

was not a duplicate benefit that would be offset by the employee’s subsequent disability

retirement benefit, even though the worker’s compensation benefit was paid in a lump sum

after retirement. 352 Md. at 627. Thus, Blevins held that, for purposes of computing the

offset in LE §9-610, a lump sum benefits payment should be attributed to the period to which

the benefits related, as opposed to the period during which the lump sum happened to be

paid.

        Returning to the question before us: how should the DROP lump sum payment be

converted to a weekly figure that reflects the entire period of the individual’s retirement?

Three possibilities have been proposed in these cases. For convenience, we shall refer to

them as the Retiree Proposal, the County Proposal, and the Commission Approach.10


        9
            See footnote 3 above.
        10
        In what is perhaps an indication that this issue is not a straightforward one, each of
the courts below chose a different option. In particular, the Court of Special Appeals

                                             15
       (1)    Retiree Proposal: Include the lump sum in the formula only for the week in
              which it was paid and not for any subsequent weeks

       Before the Commission and in the Circuit Court, counsel for Mr. Thiergartner and Mr.

Walters argued that a lump sum DROP payment should be part of the offset computation

only for the particular week in which it is paid.11 This would have the effect of wiping out

any workers’ compensation benefits paid for that week, but the DROP payment would drop

out of the computation for all subsequent weeks. In both of these cases, the retirees received

the lump sum long before they even applied for workers’ compensation benefits. The DROP

payment would therefore not be included in the offset computation in these cases.

       The Court of Special Appeals adopted this approach in the Thiergartner case. In

particular, it interpreted the statutory language to mean that “the restriction contemplated by

the statute can only apply to weekly retirement and workers’ compensation benefits that are

due concurrently.” 216 Md. App. at 570 (boldface in original). It essentially held that,

because LE §9-503(e)(2) involves a comparison of weekly benefits with weekly salary and

because the lump sum DROP payment was not a “weekly” payment, it should not be included

in the formula under the plain language of the statute. Id. at 571 (“We do not see a basis for

an interpretation that would allow for the accounting of any retirement benefits other than



adopted the Retiree Proposal in the Thiergartner case, the Circuit Court in the Walters case
adopted the County Proposal, and the Circuit Court in the Thiergartner case affirmed the
Commission Approach.
       11
         As a fallback position, counsel also argued that the Commission Approach was
superior to the County Proposal.

                                              16
those which are to be paid weekly and concurrently with a workers’ compensation award”).

       The problem with that conclusion is that there are few, if any, retirement benefits paid

on a weekly basis. Indeed, the record in these cases indicates that the ongoing retirement

benefit payments for both Mr. Thiergartner and Mr. Walters are made on a monthly basis.12

Taken to its logical conclusion, construing the offset to apply only to concurrent “weekly”

payments would mean that virtually no retirement benefits would ever be included in the

offset computation, with the likely result that there would never be any offset for any public

safety retiree who benefits from the presumption in LE §9-503. If the offset is keyed to the

particular week in which a retirement benefit is paid, the offset would be applied in the one

week of the month in which monthly retirement benefits are paid and not applied in the other

weeks of the month. This would essentially render LE §9-503(e)(2) completely ineffective

or unwieldy, contrary to a basic canon of statutory construction.13

       In our view, the use of the term “weekly” in the statute does not restrict the type of

retirement benefits to be taken into account by the frequency of payment. Rather, the statute

refers to the “weekly total” of retirement benefits and workers’ compensation benefits in


       12
         Retirement benefits are typically paid on a monthly basis. According to the
frequently asked questions page of the website for the Baltimore County retirement system,
benefits are paid by direct deposit to a retiree’s bank account at the end of each month. See
<http://www.baltimorecountymd.gov/Agencies/budfin/retirementfaq.html#retirepaid>. The
same schedule is followed by the Maryland State Retirement and Pension System. See
<http://www.sra.state.md.us/Participants/Retired/Resources/PaymentDates.aspx>.
       13
       See, e.g., Maryland Dept. of State Police v. Maryland State Conference of NAACP
Branches, 430 Md. 179, 196, 59 A.3d 1037 (2013); Fisher v. Eastern Correctional Inst., 425
Md. 699, 706, 43 A.3d 338 (2012).

                                              17
order to provide a sensible formula that includes workers’ compensation benefits – which are

expressed as weekly dollar figure and which are the payment that will potentially be affected

by the offset. Retirement benefits, whether paid monthly or bi-weekly or on some other

timetable, must be converted to a weekly figure in order to be combined with workers’

compensation benefits for one side of the statutory formula.14 See, e.g., Polomski v. Mayor

and City Council of Baltimore, 344 Md. 70, 73, 684 A.2d 1338 (1996) (converting bi-weekly

retirement benefit to weekly figure in computing potential offset). Similarly, the employee’s

salary during employment – which also was likely expressed as an annual amount and paid

on a monthly or bi-weekly basis – must be converted to a weekly figure for the other side of

the formula.

       Thus, the reference to the “weekly total” of retirement benefits and workers’

compensation benefits is not a limitation on what retirement benefits to include – i.e., only

those paid weekly – but rather a direction on how to include retirement benefits in the

computation – i.e., express the retirement benefits as a weekly amount so that the statutory

comparison can be made. There is no obvious reason why the DROP lump sum payment,

if it is part of the employee’s “retirement benefits,” should not be converted to a weekly

figure, just as other portions of the employee’s “retirement benefits” and the employee’s

salary are.



       14
         The Court of Special Appeals implicitly accepted this proposition as it used a figure
derived from converting Mr. Thiergartner’s monthly retirement benefit to a weekly figure in
computing the offset. 216 Md. App. at 572.

                                             18
       Accordingly, the Retiree Proposal is a strained construction of the statute and is

inconsistent with the treatment of other payments used in the formula that are not typically

expressed as a weekly figure or paid on a weekly basis.

       (2)    County Proposal: Divide the lump sum by whatever weekly amount of
              workers’ compensation benefits are awarded and offset those benefits in full
              for however many weeks it takes

       The County Proposal would convert the DROP lump sum into a weekly figure, but

the method of conversion appears inconsistent with the principle we derive from Blevins.

The County proposes that the lump sum be offset as a weekly amount equal to whatever the

weekly workers’ compensation benefit of the retiree happens to be (after any offset based on

the monthly retirement payment) – an approach that completely offsets the workers’

compensation benefits for a significant period of time, after which the DROP lump sum

would not figure in the computation at all. As a practical matter, in both of the cases before

us, the offset would negate all or nearly all of the workers’ compensation award.

       For example, in Mr. Thiergartner’s case, the County would divide the lump sum

payment of $189,346.90 by the maximum weekly workers’ compensation award that Mr.

Thiergartner could receive – $307 – to come up with the number of weeks (617) for which

the workers’ compensation benefits would be completely offset. Perhaps unsurprisingly, this




                                             19
appears to maximize the offset for the County and would completely eliminate the worker’s

compensation award.15

       In Mr. Walters’ case, the County Proposal would divide the lump sum payment of

$146, 959.90 by the maximum weekly workers’ compensation benefit that Mr. Walters could

receive (after the partial offset for the monthly retirement payment) – $417 – to come up with

the number of weeks (352) for which workers’ compensation benefits would be completely

offset. At the conclusion of that period, there would no offset at all.

       It is difficult to comprehend the rationale underlying the County Proposal. Although

the County promotes it as a method of pro-rating the lump sum for offset purposes, it appears

to be designed primarily to minimize the workers’ compensation benefit rather than spread

the lump sum over the period of retirement in some logical and fair manner. In the two cases

before us, Mr. Thiergartner received a substantially greater lump sum payment than Mr.

Walters, but the County would “pro-rate” Mr. Thiergartner’s lump sum at a much lower rate

($307 per week) than Mr. Walters’ lump sum ($417 per week). Perhaps this would make

sense if Mr. Thiergartner had a much longer life expectancy – i.e., the higher lump sum

would be pro-rated at a lower rate because it was being spread over a longer period of time.




       15
         As part of its argument that this was an appropriately “pro-rated” figure, the County
appeared to suggest at oral argument that its proposal would also involve reducing the
potential offset attributable to the lump sum payment by $307 per week from the date of
payment of the lump sum – even before the date of disablement. Even though that period
was nearly five years in duration, the end result would still be a complete offset of Mr.
Thiergartner’s workers’ compensation award.

                                             20
But that is not the basis for the different rates by which the County would pro-rate the lump

sums.        The rate is based solely on the amount of the particular retiree’s workers’

compensation award – a figure quite independent of the retirement benefits or expected

length of retirement.16 This is not a consistent way of attributing the lump sum DROP

payment to the period to which it relates – the retiree’s retirement.

        (3)      Commission Approach: Devise a way to spread the value of the lump sum
                 over the period for which retirement benefits would be paid

        The Commission approach would pro-rate the DROP lump sum payment by a method

independent of the amount of the worker’s compensation award. In Thiergartner, at the time

of the initial award by the Commission, the County raised the question of how the lump sum

DROP payment should be included in the offset computation. In response, the Commission

recognized that some accounting should be made for the portion of Mr. Thiergartner’s

retirement benefits represented by the lump sum DROP payment.17 As recounted above, the


        16
          In arguing in favor of its proposal, the County has suggested that the DROP program
is expensive and that the retirees are receiving a windfall of some kind. (The County
discontinued the program for new employees in 2007). Whether the DROP program was
wise policy is not before us and is not our call. But there can be no question that those who
authorized and created it anticipated that it would cost the County something more than
normal retirement. In essence, the County was offering enhanced retirement benefits to
experienced employees in order to retain them in its active work force. Whether those
employees performed better than their replacements would have, whether the costs associated
with replacing them earlier and paying retirement benefits earlier would have exceeded the
costs of the DROP program, and whether the citizens of Baltimore County experienced better
or worse public services as a result of the program involve economic assessments beyond our
expertise. In any event, such an assessment is irrelevant to the legal question before us.
        17
       As noted earlier, the County did not ask the Commission to include the DROP lump
sum payment in its order in the Walters case and the Circuit Court ultimately decided the

                                             21
Commission sought to convert the lump sum to a weekly figure by reference to the higher

monthly retirement benefit Mr. Thiergartner would have received, had he not elected the

lump sum option.

       The Court of Special Appeals has affirmed a similar approach by the Commission in

applying the offset provision in LE §9-610 of the Workers’ Compensation Act. Garrett v.

Board of Education, 94 Md. App. 169, 616 A.2d 446 (1992). As noted above, that statute

also concerns an offset of workers’ compensation benefits by retirement benefits. In Garrett,

the retiree elected an option that involved a lower monthly retirement payment but with a

future survivor benefit. The Court of Special Appeals held that the appropriate figure to use

for the offset computation was an “actuarially equal” figure – derived from an alternative

option under the retirement plan – that expressed the retirement benefit as a recurring

payment during the period of the retiree’s retirement.

       Similarly, in these cases, the lump sum DROP payment is simply one option that an

employee can pick to receive the enhanced retirement benefit provided by the DROP; the

alternative to the lump sum would be a higher monthly benefit payment in the future. The

lump sum is thus a benefit payment that relates to the entirety of the employee’s retirement

and not simply to the particular date on which it happens to be paid or to the period over

which workers’ compensation benefits are to be paid.




issue without a prior Commission decision on the issue.

                                             22
       While the Commission’s approach in Thiergartner represented the view of a single

commissioner who stated a conclusion without a detailed analysis, in our estimate it is

superior to either the Retiree Proposal or the County Proposal in that it converts the lump

sum to a weekly figure and does so in a way that relates the lump sum to the entire period of

retirement. This Court does not function as the chief actuary or chief economist under the

Workers’ Compensation Act and we do not hold that the Commission Approach is the only

way to convert a lump sum retirement payment into a weekly figure for purposes of this

statute. There may be other reasonable ways, consistent with the statute and the principle set

forth in Blevins to do so. But any such method adopted by the Commission should comply

with the principles set forth in this opinion.

                                                 III

                                         Conclusion

       As is sometimes the case in statutory construction, the Legislature’s enactment

provides clear direction only up to a point, after which the court must earn its keep. Here,

the offset provision in LE §9-503(e)(2) clearly requires a comparison involving retirement

benefits paid to a retiree without any exception based on the payment timetable of the

benefits and thus includes a lump sum DROP payment.             The statute also necessarily

contemplates the conversion of such payments to a weekly figure for purposes of the offset

computation. Under the principle stated in Blevins, any conversion must pro-rate the lump

sum payment over the entire period of retirement to which it relates. But the statute provides



                                                 23
no direction on the method of conversion. The approach adopted by the Commission in

Thiergartner – looking to what the retirement system would have paid on a recurring basis

under an alternate option – is one reasonable way to do so.




                                          J UDGMENT OF THE C OURT OF S PECIAL A PPEALS
                                          IN N O . 44 V ACATED AND C ASE R EMANDED TO
                                          THAT C OURT WITH I NSTRUCTIONS TO R EMAND
                                          THE C ASE TO THE C IRCUIT C OURT FOR
                                          B ALTIMORE C OUNTY FOR FURTHER
                                          P ROCEEDINGS C ONSISTENT WITH THIS O PINION.

                                          J UDGMENT OF THE C IRCUIT C OURT FOR
                                          B ALTIMORE C OUNTY IN N O. 58 V ACATED AND
                                          C ASE R EMANDED TO T HAT C OURT FOR
                                          F URTHER P ROCEEDINGS CONSISTENT WITH THIS
                                          O PINION.

                                          C OSTS TO BE P AID BY B ALTIMORE C OUNTY.




                                            24
