Flying "A" Service Station v. Jordan, 463

• Citation: 17 Md.App. 477,302 A.2d 650
• Decision Date: 09 April 1973
• Docket Number: No. 463,463
• Parties: Page 477 17 Md.App. 477 302 A.2d 650 FLYING 'A' SERVICE STATION et al. v. Blanche JORDAN. Court of Special Appeals of Maryland
• Court: Court of Special Appeals of Maryland

Page 477

17 Md.App. 477

302 A.2d 650

FLYING 'A' SERVICE STATION et al. v Blanche JORDAN.

No. 463.

Court of Special Appeals of Maryland.

April 9, 1973.

John F. Ward, Bethesda, with whom were Shapiro, Weil & Jacobs, Bethesda, on the brief, for appellant.

Thomas F. Santer, Washington, D. C., with whom were Martin E. Gerel and Ashcraft & Gerel, Washington, D. C., on the brief, for appellee.

Argued before THOMPSON, POWERS and MENCHINE, JJ.

POWERS, Judge.

Blanche Jordan worked from October 1967 to 14 January 1968 at a car wash in Lanham, Prince George's County, operated by the Flying 'A' Service Station. On the latter date she was severely injured, in the course of her employment, while riding in her employer's truck which was involved in an accident.

Compensation for temporary total disability was paid for several intermittent periods over the next two years or more. On 22 June 1971 a hearing was held before the Workmen's Compensation Commission to determine the employee's average weekly wage, and the nature and extent of her permanent partial disability of the body as a whole.

In its order dated 2 July 1971 the Commission found that the claimant's average weekly wage was $48.00, and that she sustained a permanent partial disability under 'Other Cases' amounting to 40% industrial loss of use of her body as a whole. Upon those findings the Commission entered an appropriate order for payments of compensation. After ordering certain adjustments in compensation previously paid for temporary total disability the order requires payment of '* * * compensation for permanent partial disability at the rate of $32.00, payable weekly, beginning April 23, 1970, not to exceed the sum of $8,544.00 allowable under 'Other Cases' * * *.'

Five days after the order claimant's attorney filed with the Commission a paper entitled, 'Petition for Reconsideration', the text of which was, 'Claimant respectfully requests this matter be set for hearing on its Petition for Reconsideration upon error of law.' A copy was mailed to counsel for the employer and insurer.

At the outset of a hearing held on 14 September 1971 the Commissioner said:

'Now, there was a hearing held on June the 22nd. There was a finding of 40 percent industrial loss of use of her body. Now, what are we back here on today?'

Counsel for the claimant answered that it was the average weekly wage. The Commission proceeded to hear evidence, and on 15 October 1971 entered an order amending its previous orders, found the average weekly wage to be $60.00, and amended the schedule of payments and the aggregate payment accordingly.

The employer and insurer filed an order of appeal and accompanying petition in the Circuit Court for Prince George's County, stating that the appeal was taken from awards of compensation dated 2 July 1971 and 15 October 1971. Claimant filed a motion to dismiss the appeal from the order of 2 July 1971 because the appeal was taken too late.

After hearing argument the court dismissed the appeal as to the order of 2 July 1971 and limited the appeal to the average weekly wage. A non-jury hearing on the merits of that issue resulted in a finding by the court that the claimant's average weekly wage was $60.00, as found in the Commission's amended order. The court affirmed the Commission and dismissed the appeal.

The employer and insurer could not properly appeal to this Court from the first order of the circuit court, which did not adjudicate all the claims in the case, Maryland Rule 605, but did enter a timely appeal to this Court after the second order was filed on 17 July 1972.

Appellants ask here:

1. Did the lower Court err in dismissing a portion of Appellants' appeal on the basis that Appellants had not noted a timely appeal?

2. Did the lower Court err in reaching its determination of the Appellee's average weekly wage?

The circuit court's dismissal of the appeal as to part of the Commission's order was in error. The appeal from the Commission's order of 15 October 1971 brought the entire case before the court for review. References to the Commission's order of 2 July 1971 must be treated as surplusage.

Code, Art. 101, § 56(a) says, in part:

'Any employer, employee, beneficiary or person feeling aggrieved by any decision of the Commission affecting his interests under this article, may have the same reviewed by a proceeding in the nature of an appeal * * *.'

Maryland Rule B 4, relating to appeals from administrative agencies, says:

'An order for appeal shall be filed within thirty days from the date of the action appealed from * * *.'

Subsection (e) of Art. 101, § 56 provides:

'If a motion for rehearing is filed, the time within which an appeal can be taken from the decision shall commence from the time of the ruling by the Commission on the motion. Such motion by one party shall not operate to stay the right of the other parties to the cause to file an appeal under this section.'

A decision of the Commission which an aggrieved party is entitled to have reviewed by a court must be an operative order which has the effect of granting or denying some benefit under the Workmen's Compensation law. Most often, such a decision is reached by giving effect to multiple findings, but it is the ultimate decision or order, not each individual finding, which is the basis for judicial review. Obviously, in a review of the correctness of a decision or order, each finding that contributed to the final result is examined, and one incorrect finding may make the result incorrect. But the appeal is from the result, rather than from each of its separate elements.

In Tobacco Company v. Goslin, 163 Md. 74 at page 78, 160 A. 804 at page 806 the Court of Appeals said,

'But the appeal allowed by the statute, Code, art. 101, sec. 56, as amended by Acts 1927, ch. 587, is not from the findings or opinion of the commission but from its 'decision.' And by 'decision' is obviously meant the order by which it disposes of the case. If, upon an appeal from its decision, it should appear that it was right and proper, it should be affirmed, even though it also appeared that the findings of the commission were erroneous.'

In ...