Case Update - Loss of Ability to Work Overtime Is a Loss of Wage Earning Capacity


Montgomery County v. Deibler, 423 Md. 54 (Md. 2011) [10/27/11]

This case sought to decide whether a loss in the ability to work overtime and associated loss of overtime compensation qualifies as a lessening of an employee's wage earning capacity. The Court concluded that it does qualify. The employee was a firefighter who sustained two separate, compensable knee injuries and as a result was forced into a reduced working role. After his injuries, the employee was paid for 80 hours of work bi-weekly, reduced from a pre-injury 96-hour non-overtime bi-weekly paycheck. However, his hourly wage was increased and all cost of living payments adjusted so there was no change in his base pay after his injury. Before his injury, the employee worked an average of 11-15 hours of overtime in addition to the 96 hours. After his injury, he could no longer work these hours, and, light duty firefighters were required to get special permission to work overtime; this approval was not received by the employee. This resulted in a significant decrease in his income. The Commission found this increase was a loss in wage earning capacity and the County appealed. The Circuit Court affirmed the Commission and the County again appealed. The Court of Appeals found the phrase "wage earning capacity" subject to several interpretations and therefore ambiguous. The Court examined whether overtime compensation can be fairly characterized as a "wage." Based on a broad dictionary definition, the Court reasoned that overtime compensation was a wage by virtue of the expansive definition of wage, to include all types of renumeration for an employees' services.