Thomas v. Giant Food, LLC (Ct. of Special Appeals)

Filed April 9, 2007. Opinion by Judge Deborah S. Eyler.

On appeal from the grant of summary judgment in favor of the employer ("Giant") against a former worker ("Thomas"), affirming the denial of Thomas' claim by the Workers' Compensation Commission (the "Commission"), the Court AFFIRMED the decision below.

Thomas was injured while at work at Giant, during a period in which he was employed both by Giant and in a second job. The injury was severe enough to preclude Thomas from continuing to work at Giant, but he was able to continue the more sedentary second job. Thomas filed with the Commission for temporary partial disability, which was opposed by Giant because his weekly earnings from his second job exceeded his average weekly wage from Giant. The Commission agreed, and Thomas' appeal to the Circuit Court for Prince George's County was equally unavailing.

On appeal, Thomas advanced what the Court characterized as an "equity" argument: that the wages from the second job should not be considered in calculating his "wage earning capacity", or in the alternative the second job should be included as well in the "average weekly wage". Otherwise, since the wages from the second job exceeded the average weekly wage received from Giant, there would be no compensation, and that was contrary to the social purpose of the workers' compensation laws.

The Court noted that Worker's Compensation is purely a statutory remedy, and therefore any remedy is limited to that provided by the terms of the statute. Here, the statute clearly provides that "wage earning capacity" includes not only income from the injury-producing job but also other jobs, and "average weekly wage" only includes wages from the injury-producing job. Since Thomas' "wage earning capacity" exceeded his "average weekly wage", no compensation for temporary partial disability was due per the relevant provisions in the statute.

The Court noted other provisions in which the legislature had explicitly included or excluded other income in calculating eligibility for or the amount of benefits, but had not done so there. Unless and until the legislature sees fit to change the statute, the Court found that the result arrived at by the Commission and the court below was correct.

The opinion is available in PDF format.