Barnes v. Ezrine Tire Co.

• Decision Date: 30 April 1968
• Docket Number: No. 191,191
• Citation: 249 Md. 557,241 A.2d 392
• Parties: John D. BARNES v. EZRINE TIRE COMPANY and State Accident Fund.
• Court: Maryland Court of Appeals

Page 557

249 Md. 557

241 A.2d 392

John D. BARNES v.EZRINE TIRE COMPANY and State Accident Fund.

No. 191.

Court of Appeals of Maryland.

April 30, 1968.

Millard Esterson, Baltimore (Abraham Levin, Baltimore, on the brief), for appellant.

Charles R. Goldsborough, Jr., Baltimore, Sp. Atty. (Francis B. Burch, Atty. Gen. and J. Howard Holzer, Sp. Atty., Baltimore, on the brief), for appellees.

Before HAMMOND, C. J., and HORNEY, MARBURY, BARNES, McWILLIAMS and SINGLEY, JJ.

HORNEY, Judge.

This appeal is the latest in a trilogy of cases concerning the 'serious disability' provisions of the Workmen's Compensation Law enacted by Chapter 322 of the Laws of 1965codified assubsections (3a) and (4a) of § 36 of Article 101 of the Code (1967 Cum.Supp.).In King Furniture Manufacturing Co. v. Thompson, 248 Md. 682, 238 A.2d 231(1968), we sustained the constitutionality of the added provisions.Prior thereto, in Consolidated Engineering Co. v. Cooper, 246 Md. 610, 228 A.2d 823(1967), we had held that subsections 36(3) and 36(3a) should be read together and that one award was to be made under both (3) and (3a).In this case, the question is whether an award of disability under 36(4), concerning other cases, may be combined with an award under 36(3), concerning specific injuries, so as to bring both awards within the purview of the serious disability provisions of 36(4a) and 36(3a).We think not.

Subsection 36(3) sets out a schedule of benefits and the 'weeks' of compensation for specific injuries resulting in permanent partial disability.Subsection 36(4) provides (1) that all other cases of permanent partial disability are to be determined from the percentage by which the industrial use of the body is impaired as a result of the injury and (2) for the awarding of compensation in such proportion as the determined loss bears to the sum of $12,500.Under both subsections the award is payable at a maximum weekly rate of $25.Subsections (3a) and (4a) created new categories of persons having a serious disability and provided for an increased rate and amount of compensation for those persons coming within the categories.Subsections (3a) and (4a) state in pertinent part-

'(3a)(Permanent partial disability-Specific injuries)-Serious disability.-A person who receives under subsection (3) of this section an award for a period of one hundred and seventy-five weeks or more is thereby considered to have a serious disability.He automatically shall be entitled to (in addition to the award under subsection (3)) an extra award of a number of weeks equal to one third (computed to the nearest whole number) of the number of weeks awarded under subsection (3); and the award of compensation to him in no case shall exceed forty dollars per week; and as to him the maximum limitation of $12,500 shall not apply. * * *.'

'(4a)(Permanent partial disability-Other cases)-Serious disability.-A person who receives under subsection (4) of this section an award equal in total to forty per centum or more of $12,500 is thereby considered to have a serious disability.He automatically shall be entitled to (in addition to the award under subsection (4)) an extra award of a number of weeks equal to one third (computed to the nearest whole number) of the number of weeks awarded under subsection (4); and the award of compensation to him in no case shall exceed forty dollars per week; and as to him the maximum limitation of $12,500 shall not apply. * * *.'

The relevant facts are not in dispute.As the result of an accident on November 29, 1965, arising out of and in the course of his employment, the claimant(John D. Barnes) suffered an injury to his right eye, back and right shoulder.On October 18, 1966, the Workmen's Compensation Commission, having found that he 'sustained a permanent partial disability (under 36(3)'Specific Injuries') resulting in 100% loss of vision in his right eye, and a permanent partial disability under (36(4))'Other Cases' amounting to 30% industrial loss of use of his body as a result of the injury to his back and his right shoulder, * * * (making) a total of 350 weeks of compensation due'; and that 'under section 36, subsection (3(a)) and(4(a)) of Article 101, the claimant has a serious disability and is, therefore, entitled to 467 weeks of compensation at the rate of $40 per week,' ordered the employer (Ezrine Tire Company) and insurer (State Accident Fund) to pay the claimant 'compensation for permanent partial disability at the rate of $40.00, payable weekly, for a period of 267 weeks for the (right) eye, and further compensation for permanent partial disability for a period of 200 weeks, not to exceed the sum of $8,000.00 allowable under 'other cases' for the back and right shoulder and an emotional disturbance.'

As is apparent, the commission added the 200 weeks provided for in § 36(3) to the 150 weeks allowed in 36(4)-30% of $12,500 at $25 a week-for a total of 350 weeks of compensation.The injury of an eye under 36(3) qualified as a serious disability under 36(3a) independently of the injuries to the back and shoulder under 36(4) but the conclusion of the commission that (3a) and (4a) had to be read together had the effect of awarding the claimant a total of 467 weeks.

The employer and insurer appealed the decision of the commission to the Baltimore City Court.That court(Cullen, J.), on the motion of the appellant for summary judgment, found tht 36(3) and 36(4) provide 'separate and distinct disabilities which become 'serious disabilities' only when their respective subsections (i. e., 3a and 4a) are complied with' and ruled that 'the two (serious) disability sections cannot be merged together * * * so as to effectuate an award for serious disability for 'other cases' under the facts of this particular case.'¹

On the appeal to this Court, the claimant, in effect, contends that since he suffered multiple injuries as the result of a single accident, it was proper for the accident commission to consider his injuries as a whole and allow him compensation for 350 weeks which would satisfy both 36(3a), which requires 175 weeks or more, and 36(4a), which requires 200 weeks or more, and thereby increase the total compensation to 467 weeks.The employer and insurer, on the contrary, contend that the respective disabilities under 36(3) and 36(4) have to separately qualify as serious disabilities under (3a) and (4a) and that since the claimant received an award of only 150 weeks under 36(4)he was not entitled to a serious disability under 36(4a).

In support of his contention, the claimant argues that it was necessary, for the legislature, when it decided to increase compensation, to enact...