Big Savage Refractories Corp. v. Geary, 116

• Citation: 121 A.2d 212,209 Md. 362
• Decision Date: 14 March 1956
• Docket Number: No. 116,116
• Parties: BIG SAVAGE REFRACTORIES CORPORATION, etc. v. Raymond GEARY.
• Court: Court of Appeals of Maryland

Page 362

209 Md. 362

121 A.2d 212

BIG SAVAGE REFRACTORIES CORPORATION, etc. v. Raymond GEARY.

No. 116.

Court of Appeals of Maryland.

March 14, 1956.

Philip T. McCusker, Special Atty., Baltimore, (C. Ferdinand Sybert, Atty. Gen., U. Theodore Hayes, Asst. To Spec. Atty., Baltimore, and Thomas B. Finan, Cumberland, on the brief), for appellants.

Milton Gerson, Cumberland, for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

COLLINS, Judge.

This is an appeal from a judgment of the Circuit Court for Allegany County affirming the award of the State Industrial Accident Commission, (the Commission), in favor of the claimant, appellee, Raymond Geary, and against Big Savage Refractories Corporation, employer, and State Accident Fund, insurer, appellants.

The appellee, fifty-two years of age, worked for twenty-nine years until September 16, 1954, in the clay mines which in recent years have been operated by Big Savage Refractories Corporation, appellant. In doing the type of work assigned to him, he came in contact with dust. Between August 19, 1952, and September, 1954, he consulted Dr. Rothstein of Frostburg, Maryland, many times claiming shortness of breath and dizziness. Upon a visit to Dr. Rothstein on August 18, 1954, when he complained of the same symptoms, the doctor had an x-ray examination made by the County Health Department. As a result of that examination, on August 20, 1954, the Deputy State and County Health Officer made the following report: 'Diffuse, slightly nodular fibrosis throughout both lungs. Diagnosis: Silicosis. Recommendations: Re-x-ray in 6 months.' On September 11, 1954, the claimant was again x-rayed by Doctors Rathbone and Cawley, who made the following report: 'X-ray stereoscopic examination of the chest shows increased fibrosis throughout both lungs and some early attempts at nodulation in the left lower lobe. Silicosis is a definite possibility from the x-ray studies.' On September 21, 1954, an electrocardiogram of the appellee was taken by Doctor Weisman at Doctor Rothstein's direction. Dr. Weisman made the following report of that examination: 'There is suspicious evidence of myocardial damage due to coronary insufficiency. Conclusion: Borderline electrocardiogram suspicious of heart disease.'

The appellee ceased work on September 16, 1954, and on the same day filed his claim for Workmen's Compensation. In this claim for compensation he stated that he then had silicosis and was permanently disabled. A hearing on that claim was held before the Medical Board on December 15, 1954. At that hearing the claimant testified that in 1948 and 1949, while working for the same company, he fell down the steps and hit his head. As a result he had an operation for a blood clot on the brain and was unable to work for thirteen weeks. He further testified that on account of shortness of breath and weakness he could not work. When asked if he could do anything around the house, he answered that he could do nothing except to prepare food and wash dishes. As soon as he tried to walk any distance he became 'out of wind' and weak. Dr. Rothstein testified as to the tests given the claimant and that as a result of those tests he was of the opinion that the claimant was suffering from silicosis to the extent that he was unable to work and that he did not feel that the major cause of dyspnea was in the circulatory system. The aforementioned reports of the Health Officer and the aforementioned reports of Doctors Rathbone, Cawley and Weisman were also offered in evidence before the Medical Board.

On February 15, 1955, the Medical Board, after reviewing the medical reports, x-rays and medical testimony made the following findings: 'The x-ray films submitted in this case have been reviewed by the Medical Board and interpreted as follows: Film 14149, 8/19/54, taken by Allegany County Health Department, shows increase in the peribronchial markings about both lungs without any definite tendency to nodulation. Cardiovascular structures appear normal. Stereoscopic films C287OR, taken at Memorial Hospital, Cumberland, September 11, 1954, disclose increase in peribronchial markings and also some interstitial fibrosis but no definite evidence of nodulation. The x-ray evidence is not sufficient to justify a diagnosis of silicosis. Nevertheless, in view of the interstitial fibrosis, the possibility of early silicosis is not excluded. Although the x-rays examined by the Medical Board in this case indicate that the possibility of early silicosis in this man's lungs is not to be excluded, it is not felt by the Medical Board that these very minimal silicotic x-ray findings are the cause of this man's disability. It appears that there is a cardiac disease present which is more likely the cause of disablement. Therefore, because of the insignificant, but demonstrable evidence of silicosis, the Medical Board feels that the claimant is entitled to compensation in the amount of $1,000 in accordance with Section 24(b) of the Workmen's Compensation Law.' Heart trouble is not an occupational disease.

On February 17, 1955, the claimant, appellee, requested the Commission to review the findings and decision of the Medical Board. No additional testimony was taken before the Commission but oral argument was heard on April 1, 1955. The Commission on May 3, 1955, made the following findings: 'After due consideration of all the evidence and facts in the case, the Commission has concluded to affirm the decision of the Medical Board on the first issue and finds that the claimant contracted an occupational disease, silicosis, within the meaning and terms of the Occupational Disease Law. The Commission further finds that as a result of such occupational disease the claimant is permanently totally disabled from performing his work in the last occupation in which he was injuriously exposed to the hazards of silicosis and will allow compensation for such disability beginning September 17, 1954, in accordance with the provisions of the Workmen's Compensation Law of Maryland. The average weekly wage is $55.52.' It awarded the claimant, appellee, $35.00 per week, not to exceed the sum of $12,500.00.

From that award the employer and insurer appellants, appealed to the Circuit Court for Allegany County. The only issue presented to the trial court was: 'Did the State Industrial Accident Commission err in overruling the decision of the Medical Board on the question of the extent of the disability of the Claimant?' The trial court answered this issue in the negative and affirmed the award made by the Commission. From that award the appellants appeal here.

The case of Bethlehem-Sparrows Point Shipyard, Inc. v. Bishop, 189 Md. 147, 55 A.2d 507, involved an occupational disease under the Workmen's Compensation Act. That case was decided November 3, 1947. At that time it was provided by Code 1947 Supplement, Article 101, Section 29, in part that the Commission on review '* * * shall review the proceedings, findings and report of the Medical Board, and upon the record thus made shall render its decision or award upon all issues referred to the Medical Board.' In that case this Court decided that under Code 1947 Supplement, Article 101, Section 29, supra, then in effect, the Commission had power to review the findings of the Medical Board on medical questions and that the Commission might reverse the Medical Board even though there was substantial evidence to support that Board's findings. Based on the same statute, the same finding was made in Consolidated Coal Co. v. Porter, 192 Md. 494, 499, 64 A.2d 715.

In Gower v. Davis Coal & Coke Co., 197 Md. 52, 78 A.2d 195, decided January 10, 1951, this Court held that an employee entirely unable to work in the occupation in which he acquired silicosis was entitled to total disability even though he could earn as much or perhaps more in some other occupation. Apparently as a result of the decision in the Gower case, supra, the Legislature enacted Chapter 290, Section 24, of the Acts of 1951, Code 1951, Article 101, Section 23(b), which provided: '* * * that if an employee has demonstrable evidence of silicosis, asbestosis or other pulmonary dust disease and his capacity for work has thereby been impaired to an extent not amounting to total permanent disability, compensation shall be payable in the amount of $1,000.00, * * *.' This act was still in effect on April 1, 1955, and on May 3, 1955, when the hearing in the instant case was held before the Commission and when its award was made.

By Chapter 287, of the Acts of 1951, the former act, Code Supp.1947, Article 101, Section 29, supra, was repealed and re-enacted as Code 1951, Article 101, Section 28, with the amendment that '* * * the findings of the Medical Board upon all...