Court of Special Appeals Provides Finality on the Issue of Credits During a Workers' Compensation Appeal

Andrew J. Swedo, Jr. v. W.R. Grace & Co., et al., Sept. Term, 2011 No. 998, (decided 5/1/13).

In May, 2013 the Court of Special Appeals finally laid to rest the issue of credits when a case is appealed and an award of permanent partial disability is either increased or decreased.

The facts of the case were not in dispute.  Mr. Swedo injured himself while at work and was ordered an award amounting to $234.00 per week for 200 weeks; a total of $46,800. He appealed the Order and the Circuit Court awarded him an increased disability amounting to 333 weeks to be paid at the higher rate of $525, a total of $174,825.

At the time of the Circuit Court decision, 148 weeks of the award or $34,642 had been paid by the employer to the injured worker.  The issue then was how the credit for the monies already paid to the injured worker would be calculated.  The employer argued for the “weeks credit” which would mean that only 185 weeks at $525 would be paid, an amount totaling $97,125.  The injured worker argued the “dollar credit” theory should be applied which would equal $140,193.

Two cases decided prior to the enactment of LE §9-633 in 2001 were on point, but the court had to determine if the new law should be interpreted to mean weeks or dollar credit.  The law reads in part  “[i] f an award of permanent partial disability compensation is reversed or modified by a court on appeal, the payment of any new compensation awarded shall be:  (1) subject to a credit for compensation previously awarded...”

In the two prior cases, one court found the Act was essentially for the benefit of the injured worker so whichever way benefited the injured worker the most was how the credit would be applied, Wright v. Philip Electronics North American Corporation, 348 Md. 209 (1997).  In the second case, the court ruled the credit should be consistent no matter if the new award was an increase or a decrease in permanency.  That court decided the “weeks credit” should be applied to determine the amount of the credit, Ametek v O’Connor, 126, Md. App. 109 (1999). 

The court in Swedo found LE §9-633 was unambiguous in using the term “compensation” and therefore ruled that any credits would be calculated using the “dollar credit” theory.  The total amount of the new award less the amount of money already paid, would be the amount the injured worker is due.  The court, in the Swedo case, felt if the case were modified or reversed through the appeals process, it would mean the commission erred and that the exact dollar amount of the new award was due to the injured worker, no matter how long it took to get to the final decision.  This decision is not applicable to a reopening of a prior award due to a worsening of condition.  

Article contributed by Alicyn Campbell