Burr v. Maryland State Retirement & Pension System

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 761

September Term, 2013

_________________________

LAURIE BURR

v.

MARYLAND STATE RETIREMENT AND
PENSION SYSTEM OF MARYLAND

_________________________

Berger,
Nazarian,
Reed,

JJ.

_________________________

Opinion by Nazarian, J.

_________________________

Filed: May 1, 2014
Laurie Burr, a former employee of Maryland’s Administrative Office of the

Courts, endured a difficult struggle with cancer while continuing to work, mostly from

home. On August 27, 2007, she went to the office to meet with her supervisor; her health

had improved, although not yet to the point where she had returned fully to work, and she

understood the purpose of the meeting was to discuss her schedule and leave and assign-

ments. Instead, she alleged (and, for purposes of this appeal, the Trustees of the Maryland

State Retirement and Pension System (the “Trustees” of the “System”) don’t dispute),

that her supervisor reduced the hours on her timesheet for work she had done, retroactive-

ly revoked her telework agreement, removed her from an important project she had led,

reassigned her to “busywork,” and demanded that she return to work in person before her

doctors cleared her. She contended that these unexpected and obviously negative person-

nel decisions precipitated a sudden decline in her mental health and caused her to become

suicidal. She has never returned to work, and everyone agrees that she is permanently

disabled.

The question for us is whether she was disabled by an “accident.” When she ap-

plied to the System for disability retirement benefits, Ms. Burr argued that the events of

the August 27, 2007 meeting were so surprising to her that they qualified as an “acci-

dent,” and thus that she was entitled to an accidental disability retirement allowance

under Md. Code (1993, 2009 Repl. Vol.), § 29-109(b) of the State Personnel and Pen-

sions Article (“SP”). The Trustees disagreed and approved an “ordinary” disability

retirement. An Administrative Law Judge (“ALJ”) and the Circuit Court for Anne Arun-
del County upheld the Trustees’ decision, and Ms. Burr appeals. We hold that personnel

decisions, even decisions that are surprising, cannot, as a matter of law, qualify as disa-

bling “accidents,” and we affirm the Trustees’ decision to deny Ms. Burr’s application for

accidental disability benefits.

I. BACKGROUND

Ms. Burr was hired as a Technical Business Analyst for the Maryland State Judici-

ary’s Administrative Office of the Courts (“the AOC”) in 2001. By all accounts, she was

a good and competent employee, and she appears to have had a substantial role in the

Judiciary’s evolution toward electronic filing. The record reveals that she received strong

performance reviews, and there is no issue in this case about her job performance, her

eligibility to retire, or that she is permanently disabled. The only issue before us is the

nature of her disability retirement, and specifically whether the events that caused her

disability qualify her for an accidental disability retirement allowance which, if awarded,

would yield a higher allowance than the ordinary retirement benefits that the Trustees

already awarded her.

In October 2006, Ms. Burr was diagnosed with breast cancer. The AOC allowed

her to work from home over the course of her treatment, and, as the summer of 2007

came to a close, she finished chemotherapy and contemplated easing into a schedule that

would transition her back to working in the office. Her illness consumed all of her accu-

mulated leave, and she drew both on leave available to her under the Family and Medical

Leave Act (“FMLA”) and a Judiciary leave bank. But according to a letter from her

2
supervisor, Charles Moulden, dated August 23, 2007, that she received by certified mail

the next day, Ms. Burr had exhausted all available leave, and the Judiciary’s Human

Resources Office “directed that [Ms. Burr] return to work fulltime, immediately.” This

letter also stated, though, that in light of the “nature and totality of the circumstances,”

Ms. Burr was not actually required to come back full time until September 12, 2007. To

Ms. Burr, the letter was a “surprise,” but “she did not become psychologically damaged”

as a result of reading it.

Ms. Burr had planned already to go to the office the following Monday, August

27, to meet with her supervisors, complete her timesheet, and discuss the logistics of her

return to work in light of “her medical doctors’ requirements for [a] flex plan.” When

she arrived, she had an email waiting from Mr. Moulden saying that he wanted to meet

with her and her other supervisor at 1:30 p.m. “to discuss work assignments and leave.”

No surprise there.

But the meeting itself went differently than the one-line request might suggest or

than Ms. Burr expected. According to Ms. Burr, Mr. Moulden informed her that her

telework agreement would be revoked retroactive to August 15, 2007, a decision that

contradicted the statement in his letter from four days earlier. Ms. Burr discovered that

Mr. Moulden had already completed her timesheet, without seeking her input or consult-

ing her, and credited her with only four hours’ work each day rather than the full eight

hours. Mr. Moulden also removed her from the project she had been leading and directed

her to begin full-time, in-office “busywork” immediately, “without exception,” and told

3
her that she had exhausted all medical leave. Ms. Burr felt certain at that time that she

had not in fact exhausted her leave and that her doctors would not clear her to return to

work under these conditions; in fact, at that point, they had not cleared her to return at all.

In an “Employee’s Report of Injury” (the “Injury Report”) dated May 1, 2008, Ms.

Burr explained that after the meeting, she suffered a “memory blackout,” and the next

thing she remembers is visiting her neighbors that evening. She returned home and

determined that she was going to end her life. Instead, she fell asleep, called in sick the

next morning, and kept a regularly-scheduled appointment with her psychologist, Benna

Sherman, that afternoon. At Dr. Sherman’s urging, Ms. Burr admitted herself to Balti-

more-Washington Medical Center, and later was hospitalized at Sheppard Pratt. She

never returned to her job with the AOC.

On July 2, 2008, Ms. Burr filed a Statement of Disability (the “Statement”), the

document that served as her application for disability retirement benefits. In the State-

ment, she characterized her disability as both “Ordinary” and “Accidental,” and she

referred back to the Injury Report in the section of the Statement that called for a descrip-

tion of the “accident.” On its first review, the State Retirement Agency (the “Agency”)

determined (in a letter sent to Ms. Burr from a counselor in the Disability Unit on July

10, 2008) that Ms. Burr’s claim was “not compensable as an accidental injury as defined

by the Maryland retirement law,” and that her claim for accidental disability retirement

benefits would be denied. On July 23, 2008, the Medical Board to the Agency recom-

mended that she be approved for “ordinary disability due to a psychiatric condition”

4
(emphasis added), but recommended that the Trustees deny her accidental disability

claim, and the Trustees adopted that recommendation on August 19, 2008. On December

11, 2008, Ms. Burr accepted the ordinary disability award, but opted to pursue her acci-

dental disability claim. After reviewing the Medical Board’s recommendation and the

report of an independent psychiatrist who examined Ms. Burr, the Trustees again denied

Ms. Burr’s claim on August 8, 2009.

On December 8, 2009, Ms. Burr’s counsel sought a hearing before a judge, and an

administrative appeal through the Office of Administrative Hearings followed. The

Trustees filed a motion for a “summary decision” 1 on September 12, 2011, arguing that

the events of August 27, 2007, did not constitute an “accident” under SP § 29-109(b)(1).

Ms. Burr opposed the motion on September 22, 2011, and sought a summary decision

that her injury did arise from an accident, i.e., the “sudden and unusual occurrence” that

took place at the meeting. The ALJ held a hearing on October 5, 2011, and issued a

Proposed Decision on November 3, 2011, that concluded that the Agency was entitled to

judgment—even crediting Ms. Burr’s account of the meeting and the interaction between

her and Mr. Moulden, the ALJ decided, the events of the meeting were “general condi-

tions of employment and [did] not fit within any common sense meaning of the term

1
A “summary decision” plays the same procedural role in the disability application and
review context as a motion for summary judgment in a circuit court civil action. As-
sateague Coastkeeper v. Md. Dep’t of the Envt., 200 Md. App. 665, 698-99 (2011).
5
accident.” Ms. Burr filed exceptions to the Proposed Decision and, after a hearing, the

Trustees adopted the ALJ’s decision on June 21, 2012.

Ms. Burr then filed a Petition for Judicial Review in the Circuit Court for Anne

Arundel County. The circuit court held a hearing on February 4, 2013, and affirmed the

Trustees’ decision in a Memorandum Opinion and Order on May 17, 2013. Ms. Burr

filed a timely notice of appeal.

II. DISCUSSION

Ms. Burr synthesizes the ultimate question before us well in her brief: 2 “If this

Court determines that ‘accident,’ as a matter of law, cannot include a meeting between a

supervisor and employee . . . , then the ALJ and Circuit Court [decisions] must be af-

firmed.” We will say it slightly differently, but with the same effect: we affirm the Trus-

tees’ decision because a supervisor’s personnel decisions cannot constitute an “accident”

2
Ms. Burr lays out the issues more specifically in the following questions she presents:

I. Whether disputes of material fact existed and the
State’s summary decision/judgment motion should
have been denied.

II. Whether the word “accident” in Md. Code Ann., [SP]
§ 29-109(b) means “unforeseen and unplanned event
or circumstance” and the ALJ and Circuit Court erro-
neously interpreted the accidental disability pension
statute.

III. Whether the substance of what occurred during the
meeting of August 27, 2007, was unforeseen, un-
planned, and unexpected constituting an “accident”
under the pension statute.
6
for purposes of determining an employee’s right to accidental disability benefits. Our

decision does not turn on whether Ms. Burr was surprised by or foresaw the decisions her

supervisors conveyed to her in the August 27, 2007 meeting—we assume for present

purposes that she was totally ambushed and that her supervisors’ decisions wrongly

interpreted and applied State personnel rules to her situation. Our holding stems instead

from the indisputable fact that a supervisor’s personnel decisions, whatever their charac-

ter and however they were delivered, are a foreseeable part of a person’s employment

with the State, and, therefore, cannot constitute an “accident.” Personnel decisions also

are not unexpected occurrences (in any objectively determinable way), nor are they

physical events or circumstances that can comprise an “accident.”

On appeal, we look through the circuit court’s decision to review that of the

Trustees, although here, as a practical matter, there is no difference between the two. See

Barson v. Md. Bd. of Physicians, 211 Md. App. 602, 612 (2013). We review that decision

de novo to determine whether the Trustees decided correctly that the System was entitled

to judgment as a matter of law. Eng’g Mgmt. Servs., Inc. v. Md. State Highway Admin.,

375 Md. 211, 229 (2003). We construe all facts in favor of Ms. Burr as the non-moving

party, and we “‘independently review the record to determine whether the parties proper-

ly generated a dispute of material fact and, if not, whether the moving party is entitled to

judgment as a matter of law.’” Suder v. Whiteford, Taylor & Preston, LLP, 413 Md. 230,

239 (2010) (quoting Haas v. Lockheed Martin Corp., 396 Md. 469, 479 (2007) (internal

citations and quotation marks omitted)). And we decide legal questions for ourselves,

7
although “a degree of deference should often be accorded the position of the administra-

tive agency. Thus, an administrative agency’s interpretation and application of the statute

which the agency administers should ordinarily be given considerable weight by review-

ing courts.” Bd. of Physician Quality Assur. v. Banks, 354 Md. 59, 69 (1999) (emphasis

added); McCullough v. Wittner, 314 Md. 602, 612 (1989) (“The interpretation of a statute

by those officials charged with administering the statute is . . . entitled to weight.”);

Wallace H. Campbell & Co. v. Md. Comm’n on Human Rels., 202 Md. App. 650, 670

(2011) (“Even though an agency’s interpretation of a statute the agency is charged with

enforcing is entitled to deference, that deference is not limitless.”).

A disabled State employee is entitled to an accidental retirement allowance if she

is disabled by an on-the-job accident:

(b) [T]he Board of Trustees shall grant an accidental disabil-
ity retirement allowance to a member if:

(1) the member is totally and permanently incapacitated for
duty as the natural and proximate result of an accident that
occurred in the actual performance of duty at a definite time
and place without willful negligence by the member; and

(2) the medical board certifies that:

(i) the member is mentally or physically incapacitated
for the further performance of the normal duties of the
member’s position;

(ii) the incapacity is likely to be permanent; and

(iii) the member should be retired.

8
SP § 29-109(b) (emphases added). Because there is no dispute (for purposes of reviewing

the grant of a summary judgment motion, that is) that Ms. Burr was totally and perma-

nently incapacitated as a natural and proximate result of what happened in the meeting of

August 27, 2007, this case rises or falls entirely on whether the personnel decisions

conveyed to her in that meeting qualify as an “accident.”

Ms. Burr argues that the question is one of first impression for Maryland appellate

courts and that the accident here, in light of the dictionary definition of the word, consists

of the “unforeseen and unexpected” decisions that Mr. Moulden conveyed to her in the

August 27 meeting, which caused Ms. Burr serious psychological injury and caused her

to begin having suicidal thoughts. She claims that the ALJ erred by requiring that an

accident involve “physical violence,” and that the circuit court erred when it imposed a

requirement that the employee undergo “some type of strain or exertion.” She argues that

Maryland cases compel us to construe “accident” to include the events of this meeting

because we have previously permitted recovery for psychological harm without accom-

panying physical harm. And finally, she cites cases from outside of Maryland that, she

claims, support her argument. For its part, the Agency argues that the dictionary defini-

tion of “accident” does not include this sort of injury and that none of the cases on which

Ms. Burr relies construes an “accident” in a similar disability retirement context.

We start with the familiar principle that “‘the cardinal rule of statutory interpreta-

tion is to ascertain and effectuate the intention of the legislature.’” Holbrook v. State, 364

Md. 354, 364 (2001) (quoting In re Anthony R., 362 Md. 51, 57 (2000)). We look at the

9
outset to the statute’s plain language, id. at 364, and, if it is unambiguous “when con-

strued according to its ordinary and everyday meaning, then this Court ‘will give effect to

the statute as it is written.’” Motor Vehicle Admin. v. Jones, 380 Md. 164, 175 (2004)

(quoting Pak v. Hoang, 378 Md. 315, 323 (2003)). We look beyond the language of the

statute only if we find an ambiguity, Comptroller of the Treasury v. Clyde’s of Chevy

Chase, Inc., 377 Md. 471, 483 (2003), and because we find no such ambiguity here, we

need not look to further rules of statutory interpretation.

The statute does not define the word “accident,” but dictionaries tie its meaning

consistently to the foreseeability—or, more to the point, the non-foreseeability—of the

event in question:

1
a : an unforeseen and unplanned event or circumstance
b : lack of intention or necessity : CHANCE <met by accident
rather than by design>
2
a : an unfortunate event resulting especially from careless-
ness or ignorance
b : an unexpected and medically important bodily event espe-
cially when injurious <a cerebrovascular accident>
c : an unexpected happening causing loss or injury which is
not due to any fault or misconduct on the part of the person
injured but for which legal relief may be sought.

Merriam-Webster’s Collegiate Dictionary 7 (11th ed. 2011) (underlines added); see also

Bryan A. Garner, Garner’s Dictionary of Legal Usage 12 (3d ed. 2011) (defining an

accident as “an unforeseen event involving an injury or loss that ranges from slight (e.g.,

spilling a drop from a tepid cup of water) to grave (e.g., running a cruise ship into an

10
iceberg)”); Webster’s Third New International Dictionary (2002) (defining an accident as

“an event or condition occurring by chance or arising from unknown or remote causes”);

Black’s Law Dictionary 16 (9th ed. 2009) (defining an accident as “[a]n unintended and

unforeseen injurious occurrence; something that does not occur in the usual course of

events or that could not be reasonably anticipated,” and making the distinction that “[a]

result though unexpected, is not an accident; the means or cause must be accidental”

(emphasis added)). And the dictionary’s synonyms (where the term “accident” is defined

as “a chance event bringing injury, loss or distress”) include “casualty, misadventure,

mischance, and mishap,” with related words including “calamity, catastrophe, disaster,

tragedy[, and] misfortune,” among others. Webster’s Collegiate Thesaurus 8 (1978).

Several threads emerge from these definitions. First, an event’s status as an acci-

dent depends not on the victim’s subjective expectation that it will happen, but its objec-

tive foreseeability. Second, an accident happens unintentionally—maybe, as the dictionar-

ies recognize, as a result of carelessness or negligence, but not as the result of an inten-

tional act. Someone who drives every day to work knows that she might be rear-ended,

but there is no objective reason to expect a fender-bender during a given morning or

evening commute. If another driver hit her intentionally, that collision would not be an

accident; if traffic slowed suddenly and a distracted driver hit her bumper, that collision

11
would be. 3 Similarly, employees should expect meetings at work to involve presenta-

tions or discussions, even awkward or difficult or confrontational ones. But no employee

expects a three-ton beam from an adjacent construction project to crash into the room—

assuming, of course, that nobody intended the beam to break loose, that event is an

accident. See Belcher v. T. Rowe Price Found., 329 Md. 709, 714 (1993).

Finally, the definitions all include some physical event that takes place that precip-

itates harm. And although we agree with Ms. Burr that the event need not necessarily

involve violence, we have not found any cases supporting the proposition that an accident

can be caused by conversation, even an unpleasant one, without some tangible physical

occurrence. Belcher presents the most obvious example. Ms. Belcher suffered only

psychological injury (for which the Court of Appeals held she could recover 4) after a

steel beam fell from a nearby construction project into her office area without hitting her

or causing her any physical injury. Id. at 713. The occurrence of the beam crashing

through the ceiling was the piece of the equation that, as the definitions of “accident” put

it, was “unforeseen and unplanned,” and an “unexpected happening.” 5

3
We offer this example purely for the purpose of illustrating accidents, not to offer views
about the potential tort liability of an intentional or distracted driver.
4
The Court held for the first time that an accident can cause compensable psychological
injuries, at least for purposes of the Workers’ Compensation law, even in the absence of
any physical injury. Belcher, 329 Md. at 745-46.
5
For what it’s worth, the result there could fairly be characterized as violent—a witness
described it “as if a bomb had exploded.” Belcher, 329 Md. at 713.
12
Throughout her brief, Ms. Burr describes the operative event in fairly general

terms, e.g., as “the events of August 27, 2007.” When we dig a little deeper, though, we

see that her surprise came not from the mere fact of the meeting with her supervisor—by

her own reckoning, she expected to meet with him all along—but from the personnel

decisions that he conveyed to her during that meeting. Again, we assume for present

purposes that she was, in fact, surprised by Mr. Moulden’s decision to complete her

timesheet with reduced credits, by his statement that she had exhausted her leave and

needed to return full-time to work immediately, by his retroactive revocation of her

telework agreement, and by his decision to remove her from her important project. We

assume as well that her surprise from these decisions caused her disabling psychological

illness. Even so, these decisions were not accidents. They were (and we track the ele-

ments of the definition we gleaned above) (1) intentional (and fairly run-of-the-mill)

personnel actions by Ms. Burr’s superiors, that (2) include the kinds of decisions (i.e.,

decisions regarding scheduling, telework, and work assignments) that State employees

can objectively expect, and that (3) did not involve any sort of physical and tangible

force. Accordingly, we hold that these events cannot qualify as an “accident” that entitles

her to an accidental disability retirement allowance.

We agree with Ms. Burr that she raises a question of first impression, but we disa-

gree with her analysis of the cases she cites to support her position. Among others, she

misreads language in Harris v. Bd. of Educ., 375 Md. 21 (2003), another Workers’

Compensation case, to argue that we should focus on the character of the resulting injury

13
rather than the activity that caused the injury. See id. at 36 (“[W]hat must be unexpected,

unintended, or unusual is the resulting injury and not the activity out of which the injury

arises.” (Emphasis added.)). In fact, Harris interpreted the phrase “accidental personal

injury” in a different context, one in which the act causing the injury must occur in the

normal course of the plaintiff’s employment. Indeed, Harris overruled cases that required

plaintiffs to prove that the activity begetting their injury was “unusual,” a construction

that limited workers’ recovery in a paradigm that is avowedly remedial and “‘construed

as liberally in favor of injured employees as its provisions will permit in order to effectu-

ate its benevolent purposes,” and in which “[a]ny uncertainty in the law should be re-

solved in favor of the claimant.’” Id. at 57 (quoting Baltimore v. Cassidy, 338 Md. 88, 97

(1995)). The statutory paradigm here requires exactly the opposite: the word “accident”

stands alone in the statute, not as an adjective for “personal injury,” and defines a circum-

stance that distinguishes a disability from an “ordinary” disability retirement. So whereas

Harris reoriented the workers’ compensation cases to include injuries suffered in the

normal course in the compensatory scheme, it actually reinforces the intentional differ-

ence between foreseeable and easily anticipated employer-employee interactions and true

accidents in the context of disability retirements.

We recognized this same structural distinction in Eberle v. Baltimore County, 103

Md. App. 160 (1995), where we construed a local county code provision that barred

accidental retirement benefits when the claimant suffered from a pre-existing medical

condition. We explained that under a two-tiered disability retirement structure, a statute

14
“granting ordinary disability retirement benefits [is] a broad remedial pension statute[,] . .

. [requiring] only a minimal showing of permanent incapacitation for further performance

of duty,” whereas, “accidental disability retirement benefits can be recovered only with

proof that a disability was the ‘natural and proximate result of an accident.’ This standard

is more stringent than that required for ordinary disability benefits, and, as a result, it is

more difficult to qualify for accidental disability retirement benefits.” Id. at 167. We

need not opine here on whether the State version of this law is meant to be more strin-

gent—the analogy that matters lies in the distinction between ordinary disability retire-

ment, for which Ms. Burr indisputably qualified, and disability retirements caused by

accidents.

Ms. Burr also pointed us to a number of out-of-state cases, but none of them

ultimately helps her either. Cabe v. Union Carbide Corp., 644 S.W.2d 397 (Tenn. 1983),

for example, tracks Harris in holding that a heart attack suffered by an employee after an

argument with a co-worker fell, like the back injury in Harris, within the “the outer limits

of recovery for injuries brought on by the job environment,” particularly given the court’s

“duty to liberally construe the worker’s compensation statutes.” Id. at 398. The court

noted the painful irony that the argument came about because the victim, as a supervisor,

was arguing with the other employee in an effort to enforce safety rules. Id. at 399. But

like Harris, the analytical context was structurally different—the court in Cabe was

charged with determining whether the injury occurred in the normal course of employ-

15
ment. By finding Mr. Cabe’s heart attack was compensable as an employment-related

injury, the case broadens the concept of foreseeability rather than narrowing it.

The only out-of-state accidental disability retirement case Ms. Burr cites is also

distinguishable. In Patterson v. Board of Trustees, State Police Retirement System, 942

A.2d 782 (N.J. 2008), the New Jersey Supreme Court defined a “permanently disabling

mental injury” for purposes of the police accidental retirement benefit in much the same

way we have defined an “accident” here:

a permanently disabling mental injury, that is the direct result
of a mental stressor that is identifiable as to time and place,
undesigned and unexpected, external to the member (not the
result of pre-existing disease that is aggravated or accelerated
by the work), that occurred during and as a result of the
member’s duties, and was not the result of the member’s will-
ful negligence, can qualify the member for an accidental dis-
ability retirement benefit.

Id. at 794 (emphasis added). The holding in Patterson really only recognized the possibil-

ity that a police officer could recover if he could demonstrate the existence of a “traumat-

ic event” that the Court clarified would have to result from PTSD, based upon statutes

within the State Police Retirement System. Id. at 791-92. The key difference, which we

decline to import into this very different context without direction from the General

Assembly, was that Patterson contemplated the possibility of a disabling psychological

injury that resulted from “terrifying or horror-inducing event[s],” id. at 795, occurring in

the course of police work, a possibility conceivably foreseeable to them but not foreseea-

ble to non-public safety State employees and that still requires a tangible event very

16
different from a standard supervisor-employee interaction. We find a closer analogy in a

New York statute that observes a two-tiered retirement disability benefits system and in

cases that hold, as we do here, that disagreements in the workplace cannot qualify as

accidental or traumatic events. See, e.g., Kesch v. Hevesi, 813 N.Y.S.2d 275, 276-77

(N.Y. App. Div. 2006) (holding that no “accident” took place when the claimant’s em-

ployer told him he was to be suspended and demoted, as it was not a “sudden, fortuitous

mischance,” but merely an “inherent and anticipated part of employment”); Baird v.

Kelly, 806 N.Y.S.2d 578, 580-81 (N.Y. App. Div. 2006) (similarly holding that harass-

ment by co-workers was purposeful and not an accident).

JUDGMENT OF THE CIRCUIT COURT
FOR ANNE ARUNDEL COUNTY
AFFIRMED. COSTS TO BE PAID BY
APPELLANT.

17