Bethlehem-Sparrows Point Shipyard, Inc. v. Damasiewicz

• Decision Date: 09 January 1947
• Docket Number: 40.
• Parties: BETHLEHEM-SPARROWS POINT SHIPYARD, Inc., v. DAMSIEWICZ.
• Court: Maryland Court of Appeals

50 A.2d 799

187 Md. 474

BETHLEHEM-SPARROWS POINT SHIPYARD, Inc., v. DAMSIEWICZ.

No. 40.

Court of Appeals of Maryland

January 9, 1947

Appeal from Baltimore City Court of Common Pleas; John T. Tucker Judge.

Proceeding under the Workmen's Compensation Act by James Damasiewicz, claimant, opposed by Bethlehem-Sparrows Point Shipyard, Inc., employer and self-insurer. From a judgment of the Court of Common Pleas of Baltimore City reversing a decision of the State Industrial Accident Commission, which allowed only one of three compensation claims, the employer appeals.

Reversed and remanded.

Jesse Slingluff, Jr., and John S. Bainbridge, both of Baltimore (Marbury, Miller & Evans, of Baltimore, on the brief, for appellant.

Maurice J. Pressman, of Baltimore, for appellee.

Richard W. Emory and Venable, Baetjer & Howard, amicus curiae.

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

DELAPLAINE Judge.

Bethlehem-Sparrows Point Shipyard, Inc., is appealing here from a judgment of the Court of Common Pleas of Baltimore City reversing a decision of the State Industrial Accident Commission, which allowed only one of three parts of the compensation claim of James Damasiewicz, age 40, a resident of Westminster employed as a carpenter at the shipyard at Sparrows Point. The accident occurred on August 21, 1944, when the employee was caught between two moving cranes. He sustained bruises on his hips and a deep laceration along the upper part of his right thigh. On September 20, 1944, he was awarded compensation for temporary total disability at the rate of $23 per week. At a hearing before the Commission on June 15, 1945, after his wound had healed and he was able to return to work, he claimed compensation for permanent partial disability consisting of (1) partial loss of use of the right leg caused by atrophy of the muscles, (2) disfigurement of the right leg, and (3) hernia. The Commission found only that he had a permanent partial disability consisting of 20 per cent loss of use of his right leg, and awarded him compensation for 42 2/5 weeks at the rate of $18 per week.

As the Commission refused to award compensation for disfigurement and hernia, the claimant appealed to the Court of Common Pleas. Dr. Floyd E. Shaffer, shipyard surgeon, who sutured and dressed his wound, and Dr. John V. Hopkins, who examined him in April, 1946, expressed the opinion that the disability of the leg was between 10 and 15 per cent. On the other hand, Dr. Albert R. Wilkerson, a specialist in traumatic surgery, estimated that the disability is 25 per cent. The disfigurement, for which the claimant asks compensation, is a deep scar about an inch and a half long and about three-fourths of an inch wide. Dr. Wilkerson said that he examined the claimant a number of times, and on the last examination in May, 1946, the muscles were still separated, and when he palpated the scar he could feel the thigh bone in the depression.

The attorneys for the employer excepted because the trial judge refused to allow them to show that Dr. Blake, medical adviser and examiner of the State Industrial Accident Commission, had made a report of his examination of the claimant prior to the award. We cannot find any merit in this objection. Where the medical adviser and examiner has examined a claimant and has reported to the Commission, and the report is contained in the record, the trial judge on appeal from the Commission should not allow the report to be read to the jury if the report was not presented at a public hearing and the claimant was not afforded an opportunity to cross-examine the medical adviser and examiner. Dembeck v. Bethlehem Shipbuilding Corp., 166 Md. 21, 170 A. 158. If such a report is in the record, justice requires that any of the parties should be afforded the opportunity to show that the information therein is in fact not true. In the case at bar, however, no such report was in the record. If such a report is not admissible in evidence, it is not admissible to show that the Commission may have considered such a report without offering it in evidence at the hearing before it.

It was undisputed in the court below that the claimant sustained an accidental injury arising out of and in the course of his employment resulting in a permanent partial disability. The objections were to the issues submitted to the jury. The following five issues were submitted by the trial judge:.

(1) Is the permanent partial disability of the claimant's right leg greater than 20 per cent loss of use as a result of the accidental injury?

(2) If the answer is Yes, then what is the percentage of permanent loss of use of the right leg?

(3) Does the claimant have a hernia in his right side as a result of the accidental injury * * *?

(4) Does the claimant have any permanent disfigurement or mutilation of his right leg as a result of the accidental injury?

(5) If the answer is Yes, then what number of weeks of compensation (not less than 10 nor more than 100) is he entitled to receive therefor?

The jury answered the issues as follows: (1) Yes, (2) 25 per cent, (3) Yes, (4) Yes, (5) 15 weeks. In other words, the jury found that the permanent loss of use of the claimant's right leg is 25 per cent; that the claimant's hernia is the result of the injury; and that the claimant has a permanent disfigurement of the leg, for which he is entitled to compensation for 15 weeks. The Court accordingly entered judgment reversing the order of the Commission.

We agree with the employer that the first and second issues did not sumbit the question of degree of permanent partial disability in the proper manner. In a case like this, where permanent partial disability is conceded, the issue should request the jury merely to determine the percentage of the disability. The jury in the court below should have had the unqualified right to determine the percentage, whether less or greater than 20 per cent. Instead, the first issue implied that the loss of use is at least 20 per cent. However, the jury determined the loss to be 25 per cent, and we do not find on this record that the error was prejudicial, and therefore there is no need to have a new trial because of the first and second issues.

The third issue, relating to the hernia, was not objected to on this appeal.

The fourth issue, relating to disfigurement, has provoked the main controversy. In some States, as in Massachusetts, there is no express provision for disfigurement. Fennell's Case, 289 Mass. 89, 193 N.E. 885. Other States, including New York and Pennsylvania, compensate for disfigurements to the face and head; Illinois compensates for disfigurements to the face, head, neck and hands; Wisconsin for disfigurements to face, head, neck, hands and arms. The Maryland Act does not specify any particular part of the body for which compensation may be awarded for disfigurement. The Act provides that in case of disability partial in character but permanent in quality, the compensation shall be 66 2/3 per cent of the average weekly wages, and the period during which compensation shall be allowed is prescribed in the schedule. In 1944, when the injury was sustained, the Act provided that the weekly payments should not be more than $18 per week, and the compensation should not exceed $3,816 in the aggregate. The Legislature subsequently amended the Act by raising the weekly payments to a maximum of $20, and the aggregate compensation to a maximum of $4,240. Laws of 1945, ch. 336. The schedule prescribes that the weekly payments for loss of a leg shall be paid for 212 weeks. In case of amputation or loss of use of any part of any member of the body, for which compensation is not specifically provided, compensation shall be allowed for such proportion of the total number of weeks allowed for the whole member as the affected or amputated portion bears to the whole. Then follows the disfigurement provision. When the Workmen's Compensation Act was adopted by the Legislature in 1914, it contained no provision for compensation for disfigurement. Laws of 1914, ch. 800. It was not until 1920 that this provision was inserted. Laws of 1920, ch. 456. The provision, which remains exactly as it was written in 1920, provides: 'For other mutilations and disfigurements, not hereinbefore provided for, compensation shall be allowed in the discretion of the Commission, for not less than ten weeks nor more than one hundred weeks, as the Commission may fix, in each case having due regard to the character of the mutilation and disfigurement as compared with mutilation and injury hereinbefore specifically provided for.' Code Supp. 1943, art. 101, sec. 48(3).

The Legislature, in conferring broad discretion upon the State Industrial Accident Commission in making awards for disfigurements, evidently recognized the impracticability of measuring disfigurements like other disabilities. Judge Cardozo said on this subject: 'Some injuries, as for instance the loss of a limb, may be so defined and classified that the appropriate compensation may, with a fair average of justice, be estimated in advance. But cases of disfigurement have their special problems. It is difficult, if not impossible, to define and classify the injuries. A flexible...