• The Aftermath of Zakwieia and Reger — The Court of Special Appeals Finds LE §9-610 Offset Does Not Apply to Ordinary Disability Benefits for a Different Injury
  • November 23, 2017 | Author: Meredith L. Pendergrass
  • Law Firm: Goldberg Segalla LLP - Baltimore Office
  • In the past year there has been a flurry of litigation in Maryland regarding what exactly a “similar benefit” is, and when an offset is warranted under Labor and Employment § 9-610. We first had Zakwieia in early 2017, holding that a similar benefit is “whether the benefits provide a similar wage loss benefit to a workers’ compensation award, not whether the benefits accrue from a similar injury.” Zakwieia v. Baltimore Co. Bd. Of Educ., 231 Md. App. 644, 654 (2017). Just six months later came the response from the Court of Appeals regarding how exactly similar benefits should be defined in Reger v. Washington Cty. Bd. of Educ., 455 Md. 68 (2017). The Court of Appeals held in Reger that while ordinary disability benefits for a similar injury would be considered “similar benefits” (and entitled to an offset under LE §9-610), ordinary disability benefits obtained for a condition unrelated to the workers’ compensation injury would not be a similar benefit. The Reger decision outlined the history of the offset provision in LE §9-610 which was designed to prevent double recovery for a single injury by government employees.

    We now have our first case, although unreported, where the Court of Special Appeals has applied the modified interpretation of similar benefits to determine an offset under LE § 9-610. Kinna v. Bd. Of Educ., Baltimore Cty., No. 0337, Sept. Term, 2016, 2017 WL4117872 (Md. Ct. Spec. App. Sept. 15, 2017). In Kinna, the claimant received ordinary disability retirement benefits in July of 2014 due to fibromyalgia. These ordinary disability benefits were provided by the Maryland State Retirement and Pension System. Additionally, a result of a May 24, 2011 assault by a student, the claimant received workers’ compensation benefits related to post-traumatic stress disorder. The claimant was awarded temporary total disability benefits and permanent partial disability benefits on December 17, 2014. While the Commission refused to grant an offset under LE §9-610 for the ordinary disability benefits, the Circuit Court granted the offset by way of a summary judgment ruling on appeal.

    In the wake of the Reger decision, the Kinna court found the ordinary disability benefits for fibromyalgia not a “similar benefit” to the claimant’s PTSD workers’ compensation benefits. Ultimately, the court concluded that the claimant was entitled to receive both benefits without any offset under LE §9-610.

    We may be headed for more litigation in the area of similar benefits under LE §9-610; for now, in cases where the ordinary disability condition and the workers’ compensation injury do not overlap, a government agency will not be granted an offset.