Norman-Bradford v. Baltimore County Public Schools, et al.
No. 2536, September Term 2016
Opinion by Nazarian, J.

HEADNOTES

WORKERS’ COMPENSATION ACT — APPLICATION TO ORDINARY
DISABILITY RETIREMENT BENEFITS — MD. CODE. ANN. (1991, 2016 REPL.
VOL.), LAB. & EMPL. ART. § 9-610 OFFSET PROVISION APPLIES

In light of the 2004 amendment of § 29-118 of the State Personnel & Pension Article
(“SP”), a retiree employed by a county board of education who receives ordinary disability
retirement benefits through that employer remains subject to the offset provision in § 9-
610 of the Labor and Employment Article (“LE”), not the offset provision in SP § 29-118.


WORKERS’ COMPENSATION ACT — MD. CODE ANN. (1991, 2016 REPL. VOL.),
LAB. & EMPL. ART. § 9-610 — OFFSET FOR PAYMENT OF BENEFITS THAT ARE
“SIMILAR BENEFITS” TO WORKERS’ COMPENSATION BENEFITS —
APPLICATION TO ORDINARY DISABILITY RETIREMENT BENEFITS

Ordinary disability retirement benefits are “similar” to workers’ compensation benefits,
and the statutory offset in LE § 9-610 applies, when the record reflects that the same
physical incapacity for which ordinary disability retirement benefits were awarded forms
the basis for the workers compensation benefits.


WORKERS’ COMPENSATION ACT — MD. CODE ANN. (1991, 2016 REPL. VOL.),
LAB. & EMPL. ART. § 9-610 — OFFSET FOR PAYMENT OF BENEFITS THAT ARE
“SIMILAR BENEFITS” TO WORKERS’ COMPENSATION BENEFITS —
APPLICATION TO ORDINARY DISABILITY RETIREMENT BENEFITS —
ORDINARY DISABILITY RETIREMENT BENEFITS AWARDED ON THE BASIS OF
A PREEXISTING MEDICAL CONDITION

When a claimant suffers an injury involving a preexisting condition that is triggered or
exacerbated by an accidental injury, LE § 9-610 offset still applies, even if the Maryland
State Retirement Pension System and Worker’s Compensation Commission awarded
benefits for the same injury but found different causes for that injury.
Circuit Court for Baltimore County                   REPORTED
Case No. 03-C-15-002983
                                       IN THE COURT OF SPECIAL APPEALS

                                                OF MARYLAND

                                                      No. 2536

                                              September Term, 2016

                                          _________________________


                                       CLAUDETTE NORMAN-BRADFORD

                                                         v.

                                     BALTIMORE COUNTY PUBLIC SCHOOLS,
                                                   et al.

                                          _________________________


                                         Wright,
                                         Nazarian,
                                         Leahy,

                                                        JJ.

                                          _________________________

                                             Opinion by Nazarian, J.
                                          _________________________

                                         Filed: April 30, 2018
          Claudette Norman-Bradford suffered an accidental injury while working for the

Board of Education of Baltimore County (the “Employer”). She filed a claim with the

Workers’ Compensation Commission (the “Commission”) and was awarded workers’

compensation benefits. She also applied for accidental disability retirement benefits from

the Maryland State Retirement and Pension System (“SRPS”), but was granted an ordinary

disability retirement instead. The Employer petitioned the Commission to offset

Ms. Norman-Bradford’s ordinary disability retirement benefits against her workers’

compensation benefits, citing the statutory offset provision in Maryland Code (1991, 2016

Repl. Vol.), § 9-610(a)(1) Labor and Employment Article (“LE”). The Commission

decided that the Employer was not entitled to an offset, and the Employer petitioned for

judicial review in the Circuit Court for Baltimore County. After a hearing on cross-motions

for summary judgment, the circuit court granted the Employer’s motion and reversed the

Commission’s decision after finding that the benefits Ms. Norman-Bradford received were

“similar,” which triggered the statutory offset. Ms. Norman-Bradford appeals and we

affirm.

                                    I. BACKGROUND

          Ms. Norman-Bradford worked as a para-educator at Deer Park Elementary School

in Baltimore County. On January 15, 2010, she tripped on a mat and fell while taking

students outside for a fire drill. There is no dispute that as a result of the fall, she suffered

injuries to her back, right ankle, hip, knee, and wrist.

          After the accident, Ms. Norman-Bradford filed a claim for workers’ compensation

benefits. Her pre-accident medical history included neck, head, and back injuries from
various accidents and diagnoses of fibromyalgia and hypertension. On May 4, 2010, the

Commission held a hearing and found that she had sustained a compensable accidental

injury, awarded her medical treatment and compensation for temporary total disability

benefits, and concluded that her fibromyalgia diagnosis was not caused by her accident.

The Employer appealed the Commission’s decision to the circuit court and the court

reversed, finding that Ms. Norman-Bradford’s fibromyalgia was causally related to her

accidental injury as an aggravation of a pre-existing condition.

       The following year, Ms. Norman-Bradford applied for accidental disability

retirement benefits through the SRPS. The State Medical Board (the “Board”) determined

that based on the medical evidence she submitted, Ms. Norman-Bradford was permanently

disabled and unable to perform her job, and recommended that the SRPS approve her claim

for ordinary disability retirement benefits. But the Board denied her claim for accidental

disability benefits after finding that the evidence didn’t prove that the January 15, 2010

accidental injury caused her permanent disability. The SRPS adopted the Board’s

recommendation, denied Ms. Norman-Bradford’s accidental disability benefits request,

and awarded ordinary disability benefits.

       The Commission held a hearing in November 2014 to determine whether Ms.

Norman-Bradford was permanently and totally disabled, and within that broader question

to resolve thirteen issues relating to the nature and extent of her disability. The Commission

found that she was not permanently and totally disabled, but did find that she suffered from

an overall forty-four percent industrial loss of use of her body—twenty-five percent from

her accidental injury (fibromyalgia, back, neck, right foot, hip, knee, and wrist, and

                                                 2
psychiatric); fifteen percent from her pre-existing conditions (hypertension, psychiatric,

fibromyalgia, back, and neck); and four percent from a subsequent accident or deterioration

of a pre-existing condition (psychiatric). The Commission ordered the Employer to pay

Ms. Norman-Bradford for permanent partial disability at the rate of $307 per week for 125

weeks.

         Based on that finding, the Employer requested a hearing to determine its right to

offset Ms. Norman-Bradford’s ordinary disability retirement benefits with her workers’

compensation award, pursuant to LE § 9-610(a)(1). On March 4, 2015, the Commission

concluded that the Employer was not entitled to offset Ms. Norman-Bradford’s benefits

because her “benefits are not a similar benefit.” The Employer sought judicial review of

the Commission’s decision. Both parties filed motions for summary judgment that focused

on the Commission’s interpretation of the term “similar benefits” in LE § 9-610(a)(1).

After a hearing, the circuit court reversed the Commission’s decision, found that the

Employer was entitled to the statutory weekly offset under LE § 9-610, and granted the

Employer’s motion.

         Ms. Norman-Bradford filed a timely notice of appeal. We supply additional facts

below as necessary.

                                     II. DISCUSSION

         Ms. Norman-Bradford argues on appeal1 first that the circuit court erred in finding

that LE § 9-610, not § 29-118 of the State Personnel and Pension Article (“SP”), governs



1
    Ms. Norman-Bradford phrased the Questions Presented in her brief as follows:

                                                 3
the Employer’s right to an offset, and second that even if LE § 9-610 applies, the court

erred in finding that her ordinary disability retirement benefits and workers’ compensation

benefits are “similar.” The Employer contends the circuit court correctly found that

LE § 9-610 is the applicable statute and properly determined that the Employer is entitled

to an offset because Ms. Norman-Bradford’s ordinary disability retirement benefits and

workers’ compensation benefits are similar. We review a trial court’s grant of a motion for

summary judgment de novo, without deference to the legal decisions of the Commission

or circuit court. Long v. Workers’ Ins. Fund, 225 Md. App. 48, 57 (2015).

       A.     LE § 9-610 Is The Appropriate Offset Provision.

       Ms. Norman-Bradford contends first that the circuit court erred by applying LE § 9-

610 instead of SP § 29-118 to determine whether the Employer was entitled to offset her




       I.     In Light of State Retirement And Pension Sys. v. Thompson
              Which Determined State Personnel And Pension § 29-118
              Applies And Not Labor and Employment § 9-610, As The
              Appellant Is A Member Of The Maryland Teachers’ Pension
              System, Was It Error For The Circuit Court To Grant The
              Board Of Education Of Baltimore County’s Summary
              Judgment [Motion], Finding Workers’ Compensation Benefits
              Were To Be Reduced/Offset By The Receipt Of Ordinary
              Disability Retirement Benefits Pursuant To § 9-610?
       II.    Assuming Arguendo LE § 9-610 Is Applicable Where The
              Claimant Is A Member Of The Maryland Teachers Pension
              System, Was It Error For The Circuit Court To Overturn The
              Commission’s Decision That The Claimant’s Workers’
              Compensation Benefits Will Not Be Offset By Her Receipt Of
              An Ordinary Disability Retirement, Where The Basis For
              Claimant’s Retirement Was A Wage Loss Benefit Not Related
              To A Work Accident, And § 9-610 Only Offsets Similar
              Benefits?

                                                4
workers’ compensation benefits with her ordinary disability retirement benefits. This

matters because, she says, SP § 29-118 wouldn’t allow the Employer to offset her ordinary

disability retirement benefits and she’d get to collect both—it only allows offsets for

accidental or special retirement benefits. But SP § 29-118(a)(2)(i)(2) excludes “a retiree of

the Employees’ Pension System or the Employees’ Retirement system who receives a

disability retirement benefit as a former employee of a county board of education” from

that division, and states that those employees are subject to LE § 9-610.

       Ms. Norman-Bradford relies instead on State Retirement & Pension Sys. of Md. v.

Thompson, 368 Md. 53 (2002), which construed an earlier version of SP § 29-118 that

provided for the reduction of a “disability retirement benefit” without reference to

“accidental or special disability retirement benefits.” We faced this question last year and

decided that a 2004 amendment to SP § 29-118 limited offsets under that provision to

claimants who have been awarded accidental or special retirement benefits, and thus that

SP § 29-118’s offset provisions do not apply to members of the Teacher’s Pension Plan

who receive disability retirement benefits. See Zakwieia v. Baltimore Cty., Bd. of Educ.,

231 Md. App. 644, 650 n.2 (2017). The Court of Appeals agreed with us in Reger v.

Washington Cty. Bd. of Educ., 455 Md. 68 (2017), a case decided after the briefs were filed

in this case but before argument, holding that “under the statutory scheme created by the

amendment, which remains in effect today, a retiree who was employed by a county board

of education who receives a disability benefit through that employer remains subject to the

offset provision in LE § 9-610, and not the offset in SP § 29-118.” Id. at 115–16 (footnotes



                                                 5
omitted). Ms. Norman-Bradford fits this description exactly, and the circuit court was

correct to apply LE § 9-610 to assess the Employer’s right to an offset.

       B.     The Workers’ Compensation Benefits And Ordinary Retirement
              Benefits Awarded To Ms. Norman-Bradford Were “Similar” And
              Subject To Offset.

       Second, Ms. Norman-Bradford contends that even if LE § 9-610 applies, the court

erred in concluding that her workers’ compensation benefits were “similar” to her ordinary

disability retirement benefits. This notion of similarity comes right from the statute:

              (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.

LE § 9-610 (emphasis added).

       Ms. Norman-Bradford contends that ordinary retirement benefits are wage loss

benefits and workers’ compensation benefits are loss of earning capacity benefits, and thus

not “similar” benefits. The Employer responds that the term “similar” refers to the nature

of the benefit awarded to the employee (i.e., disability benefits), not the nature of the

underlying injury, and that if the offset were intended to apply only where the injury

underlying both benefits was similar, the Legislature would have said so. The Legislature

hasn’t said so, but the Court of Appeals held in Reger that where the same injury forms the

basis for both ordinary disability retirement benefits and workers’ compensation benefits,

                                                  6
the two benefits are “similar,” and the LE § 9-610 offset provision applies. 455 Md. at 121,

131. The Court grounded this conclusion in the overarching principle that claimants are

entitled to a single recovery:

              First, the overall legislative intent behind the offset provision
              now contained in LE § 9-610 was “that the General Assembly
              wished to provide only a single recovery for a single injury for
              government employees covered by both a pension plan and
              [workers’] compensation,” and to thereby prevent employees
              from receiving a double recovery for the same injury. Fikar [v.
              Montgomery Cty.], 333 Md. [430,] 435 [(1994)] (quoting
              Frank [v. Baltimore Cty.], 284 Md. [655,] 659 [(1979)].

              Second, as clarified in Newman [v. Subsequent Injury Fund,
              311 Md. 721, 727 (1988)], the specific language in the statute
              that “payment of the benefit by the employer satisfies, to the
              extent of the payment, the liability of the employer … for
              payment of similar benefits under this title” reflects a
              legislative intent that the offset apply only to “comparable”
              benefits, which are “benefits accruing by reason of the same
              injury.” See also Fikar, 333 Md. at 439 . . . (holding that the
              statutory offset applied because cash payments the petitioner
              was paid as part of her vocational rehabilitation benefits were
              awarded “because of the same injuries sustained in the same
              accident which occurred in the course of her employment” that
              was also the basis for her disability pension benefits); Polomski
              [v. Mayor & Cty. Council of Baltimore,] 344 Md. [70,] 81 . . .
              [(1996)] (holding that “similar benefits for the same injury
              trigger the offset provision of Art. 101, § 33(d) [later recodified
              at LE § 9-610]” whereas “[d]issimilar benefits [ ] render the
              offset provision inapplicable’”); Blevins [v. Baltimore Cty.],
              352 Md. at 642. . . . (noting that pursuant to our holding in
              Newman, “the only benefits that a county was entitled to set off
              against a workers’ compensation award were those that were
              similar to the compensation benefits -- those which, if not set
              off, would permit a double recovery for the same injury”).
              When benefits are not traceable to the same injury, they are
              dissimilar, and the statutory offset does not apply. Newman,
              311 Md. at 728 . . . .



                                                  7
              Third, although early cases discussing the statutory offset
              provision suggested it should apply to offset workers’
              compensation benefits against any other benefit that
              compensates the employee for wage loss, this Court explicitly
              rejected that rationale in Newman, emphasizing that “our
              statute focuses only on dual recoveries for a single on-the-job
              injury” and “does not encompass setoffs for every type of
              wage-loss benefit available.” Id. at 727 . . .

Reger, 455 Md. at 116–17.

       The trial court relied on our holding in Reynolds v. Bd. of Educ. of Prince George’s

Cty. in finding Ms. Norman-Bradford’s workers’ compensation and retirement benefits

“similar.” 127 Md. App. 648 (1999). Before Reger, Reynolds was the controlling case on

the “similar benefits” issue. Id. There, we held that ordinary disability retirement benefits

awarded to a school bus driver employed by the Prince George’s County Board of

Education were similar to his workers’ compensation permanent partial disability benefits.

Id. at 655. We reasoned first that because “the same physical incapacity on the part of the

[employee] formed the basis for the workers’ compensation award and for the ordinary

disability retirement award,” the offset provision should apply. Id. In the alternative, we

explained that “[t]he ordinary disability retirement benefit is tantamount to a wage loss

benefit,” and therefore is similar to a workers’ compensation award. Id. The circuit court

in this case adopted the primary rationale of Reynolds and found that because Ms. Norman-

Bradford had “relied upon the same medical condition and physical incapacity (January

15, 2010 injuries, chronic pain, and fibromyalgia) in applying for a workers’ compensation

award and accidental disability retirement benefits,” the benefits were “similar” and the

Employer was entitled to an offset.


                                                 8
       The Court of Appeals in Reger agreed with the primary rationale in Reynolds. When

the same physical incapacity forms the basis for the workers’ compensation award and the

ordinary disability retirement award, the benefits are similar and the offset applies.

See Reger, 455 Md. at 129. The Court disagreed with our alternative rationale, though, and

explained that “the only relevant inquiry is whether ordinary disability benefits can, as a

matter of law, be ‘similar’ to workers’ compensation benefits—meaning that the two sets

of benefits were awarded as a recovery for the same injury or, in other words, stemmed

from the same cause.” Id. at 118. Accordingly, “the offset provision in LE § 9-610 is not

limited only to those benefits that might be characterized as ‘wage loss benefits,’ but

applies to any benefit awarded to compensate the same injury for which the employee also

received workers’ compensation benefits.” Id. at 131 (emphasis added).

       Ms. Norman-Bradford contends here that Reynolds is factually distinguishable: the

SRPS in Reynolds didn’t award the claimant accidental disability retirement benefits

because she suffered from an occupational disease, see 127 Md. at 651, whereas

Ms. Norman-Bradford sustained a work-related accidental injury. This distinction doesn’t

matter, though. Ms. Norman-Bradford applied for both sets of benefits based on the same

injury and physical incapacity. When she applied for accidental disability retirement

benefits, she said that she suffered from high blood pressure, fibromyalgia, chronic severe

pain, lower back pain, and hip bursitis. She also reported that she “[hadn’t] been at work

since the fall” and couldn’t “move around [] as freely as [she’d] like without experiencing

severe pain.” At the November 2014 hearing before the Commission, she testified that

before the January 15, 2010 injury, she was “fine” and worked full time, but began

                                                9
experiencing pain “all over [her] body.” And while proffering her medical evidence, her

counsel noted that the accidental injury “aggravated” her pre-existing fibromyalgia, which

caused more prolonged symptoms. Both sets of benefits were awarded for the same injuries

and physical incapacity, and the benefits are similar.

       Ms. Norman-Bradford points as well to the Commission’s apportionment of her

permanent partial disability. After the hearing, the Commission found a 44% industrial loss

of use of body, 25% of which it attributed to her accidental injury (fibromyalgia, back,

neck, right foot, hip, knee, and wrist, and psychiatric), and awarded her permanent partial

disability benefits of $307 weekly for 125 weeks. The Commission also determined that

“the portion of her disability due to her pre-existing condition [15%] did not amount to 125

weeks of disability benefits.” But the apportionment proves only that she was awarded

permanent partial disability benefits for a percentage of the injuries she sustained as a result

of the accident, the same basis of her ordinary retirement benefits award. She also points

to differences between the Commission’s and SRPS Medical Board’s findings about the

cause of her injuries. And it’s true that in Reger, the Court of Appeals noted that “when a

claimant suffers a single overall injury that involves a preexisting condition that was

exacerbated or triggered by an accidental injury, the [SRPS] and [Commission] may both

award the claimant benefits for that single injury but make contrasting findings as to the

cause of the injury.” Id. at 131. Here, although the Commission determined that Ms.

Norman-Bradford’s fibromyalgia is causally related to her accidental injury, the SRPS

Medical Board concluded that the accident was not causally related to her permanent

disability (chronic pain and fibromyalgia). So under Reger, the offset still applies even if

                                                  10
the SRPS and Commission award benefits for a single injury and make contrasting findings

about its cause. Id. That is what happened here, and the circuit court correctly found that

the Employer was entitled to the offset.

                                           JUDGMENT OF THE CIRCUIT COURT
                                           FOR BALTIMORE COUNTY AFFIRMED.
                                           APPELLANT TO PAY COSTS.




                                               11
