Baltimore Steel Co. v. Burch

• Decision Date: 31 October 1946
• Docket Number: 13.
• Citation: 49 A.2d 542,187 Md. 209
• Parties: BALTIMORE STEEL CO. et al. v. BURCH.
• Court: Maryland Court of Appeals

49 A.2d 542

187 Md. 209

BALTIMORE STEEL CO. et al. v. BURCH.

No. 13.

Court of Appeals of Maryland

October 31, 1946

Appeal from Baltimore City Court; J. Abner Sayler, Judge.

Proceeding under the Workmen's Compensation Act by Lee R. Burch claimant, opposed by the Baltimore Steel Company, employer and Liberty Mutual Insurance Company, insurer, for compensation for permanent disability to claimant's left hip. From an adverse judgment, the employer and insurer appeal.

Judgment affirmed.

Thomas G. Andrew and Talbot W. Banks, both of Baltimore, for appellants.

Philip V. Hendelberg and Deeley K. Nice, both of Baltimore (Max Sokol and Dickerson, Nice & Sokol, all of Baltimore, on the brief), for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.

GRASON Judge.

Lee R Burch (appellee) is a structural iron worker and on July 27 1941, was employed by the Baltimore Steel Company in erecting in Baltimore a building known as Hutzler's Annex. While in the course of this employment, and arising out of the same, he met with an accident. He described the occurrence as follows: 'The way the beams are on a structural building, from one beam to another, this plank was right alongside one of the beams I was working on, so when I stepped on this plank, I skinned my right side up, as I went down the hole, then I landed on my left side; that kinda threw me off balance and I landed on my left hip about 6 or 8 feet below, but my right side was bruised up when I scraped it alongside the beam when I went down the hole.' 'I slid on the beam on the right side and I landed on my left hip on the floor below, which was about six or eight feet.' The superintendent of the building witnessed the accident and told appellee to go to see the doctor for the Liberty Mutual Insurance Company, the insurance carrier, and one of the appellants in this case. He told the superintendent he would see the doctor later that day, and at about 6:30 p.m. he saw Dr. Reifschneider, the physician of the insurance carrier. Dr. Reifschneider examined the right side. Appellee apparently did not call the doctor's attention to any injury on his left hip, but when he got home his wife drew his attention to his left hip. He stated he did not see an injury to his left hip at the time he went to the doctor. The doctor, according to appellee, told him: 'I don't think there's much the matter with you'. He returned to work the next day and continued his work for appellant until May 18, 1945.

On June 15, 1945, appellee filed a claim with the State Industrial Accident Commission for permanent disability to his left hip, asserting that the injury was the result of the accident on July 27, 1941. A hearing was held before the Commission on the following issues:

'1. Did the claimant sustain an accidental personal injury arising out of and in the course of his employment with the employer within the meaning of the Workmen's Compensation Act.

'2. Nature and extent of disability, if any.

'3. Did the claimant give notice of an accidental personal injury, within the statutory period, to his employer.

'4. Average weekly wage.

'5. Is the claimant barred by the statute of limitations.

'6. And any other issues which may be raised at the time of the hearing which may be pertinent thereto.'

The Commission considered only two of these issues, namely, the fourth and fifth issues. The claim was disallowed by the Commission because it was barred by the statute of limitations, in that it had not been filed within the time limit required by law.

The lower court reversed the Commission in its ruling on the fifth issue and ordered that the record be returned to the Commission and that it reopen the case and rule upon the first, second, third and sixth issues. No objection was made to the Commission's ruling on the fourth issue. From the judgment entered below, the case comes here on appeal.

The sole and only question argued before this court was whether the appellee filed his 'claim for compensation within one year after the beginning of his disability', as provided by section 51 of Article 101, Annotated Code 1939. No 'failure to file such claim was induced or occasioned by fraud, or by facts and circumstances amounting to an estoppel'. The question to be decided is whether appellee failed to file his claim for compensation with the Commission 'within one year after the beginning of his disability'. If he did, and his disability was caused by the accident, he is not entitled to compensation. While on the other hand, if he did file his claim with the Commission 'within one year after the beginning of his disability', and the accident caused the same, he is entitled to compensation.

Every accident to an employee engaged in extra hazardous work is not compensable. It may be of a character so slight and inconsequential that it occasions no loss of time from work and is not otherwise apparent. On the other hand, an accident producing an apparent injury occasioning loss of time, is a typical case of compensable injury. And if an injury not apparent at the time of the accident of which it is the result, becomes reasonably apparent within one year of the date of the accident, a claim should be filed before the Commission by the workman. There is another class of cases, where the injury at the time of the accident is not apparent, but is latent and appears so slight, if any, that the workman continues work, loses no time or wages until after one year has run from the date of the accident. In such cases the man is injured but does not suffer a compensable injury. His disability is the result of the slow but progressive development of the injury he received at the time of the accident, and flares up suddenly, after a lapse of a considerable period. If we date the running of limitations from the time of the accident, and not from the time disability is reasonably apparent, then this class of cases is lifted out of the statute whenever the bar of the statute is relied on by the employer. If this is the law, and a workman is barred in such cases, injuries resulting from industrial accidents will not be covered by the Workmen's Compensation Law, which was intended to relieve workmen from the hazards of industrial employment and to protect the public from the care and expense resulting from human derelicts due to accidents while engaged in hazardous employment in industry. The position of the appellant is that the period of limitation runs from the date of the accident, and in this case appellee is barred because he did not file his claim with the Commission within one year from the date of the accident. The appellee contends that the period of limitation runs in this case from the date of his disability and he was disabled from working on May 18, 1945. If his contention is correct his claim was filed in time and the bar of the statute does not apply

There are many decisions throughout the country on this question but the weight of authority is that there can be no claim unless it is compensable, and as there is no compensable claim in the group of accidents last referred to, limitations cannot run. There must be a compensable claim before the period of limitation starts to run. The leading cases on this question are Kropp v. Parker, D.C., 8 F.Supp. 290, 291, and Di Giorgio Fruit Corp. v. Norton, 3 Cir., 93 F.2d 119. In the Kropp case, decided by Judge Chesnut on September 29, 1934, the action was instituted under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq. That act provides: 'The right to compensation for disability under this chapter shall be barred unless a claim therefor is filed within one year after the injury.' 33 U.S.C.A. § 913. The workman in that case was engaged in the hold of the dredge 'National'. The captain attempted to throw a heavy block of wood off the deck and in so doing it fell through a hatch and struck the workman on the back of his head. He was apparently not seriously injured and resumed his work. The facts of the case are fully set out in the opinion. But later a brain tumor developed and claim for compensation was not filed until after one year from the date of the accident. Judge Chesnut, in that case, reviews a number of cases, some of which are referred to in the briefs filed in this case. In his opinion he states the...