Can a former Maryland state employee who already left the retirement system file late for disability retirement benefits?

Plain-English summary

The Board of Trustees of Maryland's Employees' Retirement System asked the Attorney General whether it had authority to accept a disability retirement application from a former State employee who was no longer a System member. The employee had been injured on the job in 1973, taken a year of unpaid leave, been moved to inactive membership status when the leave ended, and had his System membership terminated in 1976 after more than two years of absence from service, all without ever applying for accidental disability retirement. He did not file an application until November 1979, three years after his membership ended, arguing that a mental disability caused by the original injury had prevented him from applying sooner and that filing deadlines should be tolled for people under a disability.

The opinion concluded the Board had no authority to accept the late application. It read the statute's plain text as limiting eligibility to apply for accidental disability retirement benefits to current "members" of the System (or a member's department head), a term the same statutory article elsewhere distinguishes from "former members," and found no statutory exception permitting a former member to apply even if disability had caused the delay. The opinion noted the General Assembly had written tolling exceptions into other statutes, such as one pausing certain court deadlines for minors or people who are mentally incompetent, but had not written any comparable exception into the disability retirement statute, and that the Board, as an administrative agency, had no power to read one in on its own, however sympathetic the applicant's circumstances.

Currency note

This opinion was issued in 1982. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion applied Article 73B of the Maryland Code as it stood in 1982. Maryland's pension statutes have since been substantially recodified (Article 73B was later reorganized into the State Personnel and Pensions Article), and the General Assembly may have since added tolling or exception provisions the 1982 statute lacked. Anyone with a current disability retirement eligibility question involving the Maryland State Retirement and Pension System should consult the current statutory text and the System directly, rather than relying on this 1982 analysis of a now-superseded code article.

Common questions

If someone's disability itself caused them to miss a filing deadline, shouldn't the deadline be paused for them?
The opinion acknowledged this argument but rejected it because the specific statute governing accidental disability retirement contained no tolling provision, unlike some other Maryland statutes, for example one pausing certain civil court deadlines for minors or people found mentally incompetent, and the Workmen's Compensation Commission's separate authority to excuse late filings "for sufficient reason." Because the General Assembly had written tolling language into other statutes but not this one, the opinion concluded that omission was meaningful and could not be filled in by the Board on its own.

Did any other legal system face this same question, and how was it resolved?
The opinion pointed to a federal case interpreting Social Security disability benefits, where a claimant argued a mental disorder should excuse a similar filing deadline. The federal court held it was bound by the statute's plain language and could not create an exception for mental illness that Congress had not written into the law, a result the opinion treated as directly supporting the same conclusion under Maryland's retirement statute.

Could the Board of Trustees just decide, as a matter of fairness, to accept the application anyway?
No. The opinion explained that the Board's general statutory authority to administer the retirement system does not include power to override a specific eligibility requirement the General Assembly wrote into the statute, quoting a Court of Appeals decision holding that if a board believes a statute is too narrow or harsh, its remedy is to ask the legislature to amend the law, not to act as though the requirement did not exist.

What happened to the employee's contributions to the retirement system after his membership ended?
According to the opinion's recounting of the case history, the System notified the former employee in 1979 that his contributions were about to be turned over to the Comptroller as abandoned property, and he did not request their return before filing his disability retirement application that same month.

Background and statutory framework

The request arose from a specific contested case pending before the Board of Trustees. A State employee enrolled in the Employees' Retirement System in May 1971, was injured at work in January 1973, made his last contribution in June 1973, and was granted a year of unpaid leave for "injury in the line of duty" that July. The System notified him in writing of his right to apply for accidental disability retirement before his leave expired. When the leave ended in July 1974, he was placed on inactive membership status, and the System sent him another letter in 1976 describing his rights as an inactive member (the applicant claimed he received neither letter). In July 1976, after more than two years absent from service, his membership was terminated under the statute's automatic membership-lapse provision. He took no action until June 1979, when the System notified him his unclaimed contributions were about to be turned over to the Comptroller as abandoned property, and in November 1979, three years after his membership ended, he finally filed an application for disability retirement. The System declined to process it because he was no longer a member, and the case worked its way through an agency Proposal for Decision before reaching the Board of Trustees, which sought the Attorney General's opinion on its own authority to act.

The opinion's core analysis started with Article 73B, §11(6) of the Maryland Code, which allows only "the application of a member, or of the head of his department" to trigger accidental disability retirement, and Article 73B, §3(3)(A), under which membership automatically ceases after more than two years' absence from service, the provision that had terminated this applicant's membership in 1976. The opinion emphasized that the same statutory article expressly and separately defines rights belonging to a "former member" in other sections, which confirmed that "member," standing alone in §11(6), could not reasonably be stretched to include former members. It also offered a policy rationale for this reading: allowing former members to apply years after leaving service would make it far harder to verify the facts of an old workplace accident and would undermine the actuarial assumptions the System's financing depends on, and it cited several Maryland pension cases holding that similar eligibility terms like "member in service" or "employee" could not be read more broadly than their plain statutory meaning to reach people outside the defined class, plus a then-very-recent unreported trial court ruling reaching the identical conclusion in a separate case.

The opinion next addressed whether the filing requirement should be understood to include an implied exception when a disability itself caused the delay. It found that the General Assembly, when it wanted to toll deadlines for people under a disability, said so explicitly, pointing to a Courts Article provision pausing certain civil limitations periods for minors or people adjudicated mentally incompetent, and a Workmen's Compensation Commission provision letting that agency excuse late filings "for sufficient reason." Because the General Assembly had included no comparable tolling language in the accidental disability retirement statute, the opinion concluded no such exception could be read into it, drawing further support from a federal district court decision rejecting an analogous tolling argument under the Social Security disability program, where the court held it lacked authority to "improvise" an exception the statute's plain terms did not provide.

Finally, the opinion addressed whether the Board's own general administrative authority over the retirement system, granted by Article 73B, §12, could support accepting the late application anyway. It concluded that authority, however broad, must be exercised within the statute's limits, and quoted Court of Appeals precedent holding that neither courts nor administrative agencies may remedy a perceived statutory gap by ignoring the legislature's clear directive. If the Board believed the filing rule was too rigid given cases like this one, the opinion advised, its recourse was to seek amending legislation from the General Assembly, not to accept an application the existing statute did not authorize.

Citations

Statutes:

• Article 73B, §11(6) of the Maryland Code
• Article 73B, §3 of the Maryland Code
• Article 73B, §1(3), (4), and (7) of the Maryland Code
• Article 73B, §3(3)(A) of the Maryland Code
• Article 73B, §§5 and 11(1)(a)(ii) of the Maryland Code
• Article 73B, §14 of the Maryland Code
• §5-201 of the Courts Article of the Maryland Code
• Article 101, §39(a) of the Maryland Code
• Article 73B, §12 of the Maryland Code
• 42 U.S.C. §423(b)
• 42 U.S.C. §416(i)(2)(F)

Cases:

• Saxton v. Board of Trustees of the Fire and Police Employees Retirement System, 266 Md. 690 (1972)
• Hecht v. Crook, 184 Md. 271 (1945)
• Snyder v. Grand Int'l Bhd. of Locomotive Eng'rs, 157 Md. 322 (1929)
• Wright v. Board of Trustees of the Employees Retirement System, No. 108293 (Balto. City Court, Dec. 10, 1982)
• Redfern v. Holtite Mfg. Co., 209 Md. 106, 111 (1955)
• Donnelly v. Gardner, 286 F.Supp. 288 (W.D. Wis. 1968)
• Mauzy v. Hornbeck, 285 Md. 84, 95 (1979)
• Fallin v. Mayor and City Council of Baltimore, 193 Md. 464 (1949)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1982/Volume67_1982.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

RETIREMENT SYSTEMS

Accidental Disability Pension Benefits—Board of Trustees—Limitations—Disabilities Board Lacks Authority to Accept Application For Disability Retirement Benefits From Former Member of System

December 17, 1982

Mr. Christ G. Christis
Secretary to the Board of Trustees
State Retirement Systems

On behalf of the Board of Trustees of the Employees' Retirement System, you have requested our opinion on whether the Board has authority to permit a former State employee, that is, one who is no longer a member of the Employees' Retirement System ("System"), to file retroactively for accidental disability retirement benefits.

For the reasons discussed below, we have concluded as follows:

(1) The statutory provisions governing accidental disability retirement benefits permit only a member of the System (or the member's department head, a possibility not relevant to this inquiry) to apply for such benefits.

(2) The statute contains no exception that would permit a former member to apply, even if his or her failure to apply during the period of membership was the result of disability.

(3) In light of the statutory requirement, the Board of Trustees lacks the discretionary authority to accept an application from a former member.

I
Procedural Background

This question is presented in the context of a particular contested case. A former State employee applied for disability retirement benefits in November of 1979. The System declined to process the application on the grounds that the applicant was no longer a member of the System. Thereafter, the applicant sought agency review of this determination. In February of 1982, the Director of Employer-Employee Relations of the Department of Personnel filed a Proposal for Decision that would affirm the System's determination to decline to process the application. The matter is now pending before the Board of Trustees.1

II
Factual Background

The applicant was employed by a State agency in February of 1971 and was enrolled in the retirement system in May of that year.2 The applicant was injured at work in January of 1973. His last contribution to the retirement system occurred in June of 1973; and, in July of 1973, he was granted a leave of absence without pay for one year because of "injury in the line of duty".3

In August of 1973, the System wrote to the applicant to advise him of his rights and benefits while on leave of absence, including the right "to apply for accidental disability retirement prior to the expiration of this leave". He was placed on inactive membership status in July of 1974, after his one year leave of absence had expired. The System wrote to him again in March of 1976 to inform him of the rights and benefits to which he was entitled as an inactive member. The applicant alleges that he received neither letter.

In July of 1976, the System terminated the applicant's membership. He had not applied for any benefits by that date. The System next contacted the applicant in June of 1979 to notify him that his contributions to the System were about to be turned over to the Comptroller as abandoned property. The applicant did not request the return of those contributions. Instead, in November of 1979, he filed an application for disability retirement.

III
Applicant's Argument

The applicant contends that he did not file his application before July of 1976, when the System terminated his membership, because his mental disability prevented him from doing so.4 In a letter from his attorney, he asserts that "time and limitation requirements are tolled of those persons under disability insofar as filings under any statute relating to benefits and actions".

IV
Statutory Requirements

A. Membership Requirement

Article 73B, §11(6) of the Maryland Code contains the following provision on filing for accidental disability retirement benefits:

"Upon the application of a member, or of the head of his department, any member who has been totally and permanently incapacitated for duty as the natural and proximate result of an accident occurring while in the actual performance of duty . . . shall be retired by the board of trustees, provided that the medical board shall certify that such member is mentally or physically incapacitated for the further performance of duty, that such incapacity is likely to be permanent, and that such member should be retired." (Emphasis added.)

Article 73B, §3 sets out the categories of employees who are members of the System. See also Article 73B, §1(3), (4), and (7). Under Article 73B, §3(3)(A), "[m]embership ceases if the member . . . [i]s absent from service for more than 2 years". On this basis the applicant's membership was terminated.5

There is no ambiguity whatever in the requirement that only a "member" (or the member's department head, a possibility not relevant here) may apply for accidental disability retirement benefits. In particular, the term "member" cannot reasonably be read to extend to former members, because the statute elsewhere in the same Article expressly sets out the rights of a "former member". See Article 73B, §§5 and 11(1)(a)(ii).

This statutory restriction appears to reflect the General Assembly's policy judgment that permitting applications by former members would entail adverse consequences for the System. For example, Article 73B, §11(6) requires certain determinations about the circumstances and consequences of an accident before accidental disability retirement benefits may be paid; these determinations would be much more difficult if the application were permitted to be filed years after the event.6 Moreover, the financing of the System depends in part on actuarial assumptions. See Article 73B, §14. These underlying assumptions about risk would be less certain if claims were allowed not only from present and recently terminated employees but also from all former employees.

Finally, while there is no reported appellate decision in Maryland directly on point, several cases dealing with comparable pension eligibility requirements strongly suggest that the term "member" may not be construed beyond its plain meaning. See, e.g., Saxton v. Board of Trustees of the Fire and Police Employees Retirement System, 266 Md. 690 (1972) (death benefit payable only to "member in service"; retired firefighter not "member in service" although death resulted from service-connected injury); Hecht v. Crook, 184 Md. 271 (1945) (benefits under Baltimore City pension plan payable only to that class of persons described in enabling legislation; appointed municipal tax appeal judge not "employee", notwithstanding that he had contributed to the plan); Snyder v. Grand Int'l Bhd. of Locomotive Eng'rs, 157 Md. 322 (1929) (railroad engineer denied pension benefit because he was not a "member" of the Association paying the benefits at the time such application was received, even though he was a former member).7

B. Implied Tolling of Application Deadline

We next consider whether the express statutory requirement, i.e., that any accidental disability retirement application must be filed before membership in the System ends, should be understood to permit an exception if the failure to file during the period of membership is caused by disability. In our view, the provision in question may not be so construed.

The General Assembly elsewhere has provided for the extension of certain time limitations that would otherwise apply to certain judicial proceedings. Thus, for example, §5-201 of the Courts Article of the Maryland Code provides:

"When a cause of action subject to a limitation under [Title 5,] Subtitle 1 [of the Courts Article] accrues in favor of a minor or mental incompetent, that person shall file his action within the lesser of three years or the applicable period of limitations after the date the disability is removed."

This provision, however, is applicable only to the actions there specified, i.e., actions subject to the limitations otherwise contained in Title 5, Subtitle 1 of the Courts Article, not to claims for accidental disability retirement benefits. See, e.g., Redfern v. Holtite Mfg. Co., 209 Md. 106, 111 (1955) (former Article 57, §2, now incorporated in §5-201 of the Courts Article, inapplicable to worker's compensation claim). We cannot ignore the fact that the General Assembly has failed to enact any such time extension in the statute governing applications for accidental disability retirement benefits.8

Our view of the issue is supported by a court decision involving a comparable problem under the federal Social Security disability program. The Social Security Act provides in essence that a qualified individual who files a disability application receives future benefits plus benefits for up to one year preceding the application date. 42 U.S.C. §423(b).

In Donnelly v. Gardner, 286 F.Supp. 288 (W.D. Wis. 1968), the applicant claimed entitlement to disability benefits for six years preceding his filing, not just one: "Plaintiff contends that the 12-month rule with respect to filing an application should not govern a case in which one has been suffering for some time from a mental disorder rendering him incapable of filing an application." 286 F.Supp. at 289. The court nevertheless held that it was bound by the statutory language and could not properly infer such an exception:

"Here the [statutory] term . . . allows no room for construction. The court is asked, instead, simply to ignore the requirement in the case of a mentally ill person. I do not consider myself free to improvise in this manner when dealing with a statutory scheme." 286 F.Supp. at 289-90.9

The same result, we believe, is required by the Maryland statutory scheme.

V
The Board's Authority

The statute vests in the Board of Trustees "general administration and responsibility for the proper operation of the retirement and pension systems, and for making effective the provisions of this article". Article 73B, §12. This provision is a grant to the Board of "broad powers to administer the retirement system". 65 Opinions of the Attorney General 461, 463 (1980).

This power, however, must be exercised in accordance with limitations in the statute. See 65 Opinions of the Attorney General at 463. Because the General Assembly has limited to "members" of the System the opportunity to apply for accidental disability benefits, the Board is without authority to set aside that requirement, however compassionate the reasons for its wishing to do so.

In a case involving the Board's attempt to limit by rule a statutory provision that it thought too broad, the Court of Appeals described the Board's authority in terms that, we believe, are equally applicable here:

"We have many times stated that courts may not, under the guise of statutory construction, remedy possible defects in a statute or insert exceptions not made by the Legislature. [Citations omitted.] The same is true of administrative agencies. If the Board believed that the statute was too broad, it should have gone to the General Assembly and sought an amendment. It was not authorized to ignore the clear legislative directive." Mauzy v. Hornbeck, 285 Md. 84, 95 (1979).

See also Fallin v. Mayor and City Council of Baltimore, 193 Md. 464 (1949).

If the Board believes that the case now before it reveals a shortcoming in the statute, the Board should request ameliorative legislation from the General Assembly. Under the existing unambiguous statutory language, however, the Board currently lacks authority to excuse noncompliance with the present filing requirement.

VI
Conclusion

In summary, it is our opinion that:

(1) Only a member of the Employees' Retirement System (or the member's department head) may file an application for accidental disability retirement benefits.

(2) The statute contains no exception to this requirement for a former member who failed to file an application during his or her membership, even if the failure was the result of a disability.

(3) The Board of Trustees of the Employees' Retirement System lacks the discretionary authority to accept an application from a former member.

Stephen H. Sachs, Attorney General
Jack Schwartz, Assistant Counsel,
Opinions and Advice
John K. Barry, Assistant Attorney General
Avery Aisenstark
Chief Counsel,
Opinions and Advice

1 It should be noted that, in this contested case, Assistant Attorney General Nancy Knisley represented the System. Ms. Knisley played no role in the preparation of this Opinion. See Memorandum from Attorney General Stephen H. Sachs to All Assistant Attorneys General (December 4, 1980) (Guidelines for Administrative Adjudicatory Proceedings 1, 2, and 3).

2 This chronology is drawn from the Findings of Fact in the Proposal for Decision filed by the Director of Employer-Employee Relations of the Department of Personnel.

The applicant filed for worker's compensation benefits in July of 1973. He was assisted by the same attorney who now represents him in this matter. He agreed to settlement of his worker's compensation claim in December of 1975 and received payments under the settlement through March of 1976.

4 He also contends that he was unaware of his rights, or the deadline for their exercise, because he had not received either of the letters that the System had mailed him. However, we do not think that failure to comply with a statutory requirement may be excused on the basis of such an assertion.

5 In a letter from his attorney, the applicant asserts that: "As long as a person continues to draw workmen's compensation benefits as a result of work related accident, clearly he is not absent 'from service'." We discern no legal basis for this assertion. The statute defines "service" to mean, in relevant part, "service as employee paid for by the State". Article 73B, §1(7). Post-employment receipt of worker's compensation does not meet this definition, in our view.

6 In the case at issue before the Board, a determination of the merits of the applicant's claim would focus on events that took place in January of 1973, nearly seven years before the date of his application. Obviously, the evidence of these events would have become stale during this long interval.

7 We also understand that, only last week, a Maryland trial court ruled that a former member of the System is not a "member" within the meaning of the statute and, for that reason, is ineligible to file for accidental disability retirement benefits. Wright v. Board of Trustees of the Employees Retirement System, No. 108293 (Balto. City Court, Dec. 10, 1982). This oral ruling has not yet been embodied in a written opinion or order.

8 By contrast, The General Assembly has expressly authorized the Workmen's Compensation Commission, for example, to "excus[e] . . . for . . . sufficient reason" certain untimely applications. See Article 101, §39(a) of the Maryland Code.

9 Congress has relaxed the filing requirement in a related context by permitting someone whose disability has ended to apply up to 36 months after the disability ended if "the failure of such individual to file an application for a disability within [the 12 month period after the disability ended] was attributable to a physical or mental condition of such individual which rendered him incapable of executing such an application". 42 U.S.C. §416(i)(2)(F).