Department of Public Safety and Correctional Services v. LeVan

• Decision Date: 15 September 1980
• Docket Number: No. 5,5
• Citation: 419 A.2d 1052,288 Md. 533
• Parties: DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES v. Michael LeVAN.
• Court: Maryland Court of Appeals

Page 533

288 Md. 533

419 A.2d 1052

DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES v. Michael LeVAN.

No. 5.

Court of Appeals of Maryland.

Sept. 15, 1980.

Arrie W. Davis, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on brief), for appellant.

G. Denmead Leviness, Baltimore, for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

SMITH, Judge.

We shall here hold that the Court of Special Appeals erred when it concluded that a circuit court's remand to the Sundry Claims Board (the Board) of an appeal from that Board was not an appealable final order. We shall further hold that the circuit court judge erred in determining that awards by the Board were to be governed by the Workmen's Compensation statute.

I Statutory background

The Board is created by Code (1957, 1978 Repl. Vol.) Art. 41, § 188A (the Act). (The last amendment was in 1976, prior to the incident here in question.) Its purpose is to administer benefits whenever a prisoner at an institution "under the supervision of the Division of Correction (1) is engaged in any extra-hazardous work for which wages or a stipulated sum are paid by said institution, and (2) sustains a permanent partial or permanent total disability as a result of said injury, and (3) this disability incapacitates the prisoner or materially reduces his earning power in such work." ¹ The statute specifies that the terms "extra-hazardous work," "permanent partial disability," and "permanent total disability" have the meanings "which are currently given to them in Art. 101," the Workmen's Compensation statute.

Claims are to be filed "not later than either twelve (12) months after (an injured prisoner's) release from the institution, or two years from the date of injury, whichever last occurs . . . ." The Board is directed after investigation "either (to) approve, approve with conditions and limitations, or disapprove" a claim. It is to "append to the original papers representing such claim, a concise statement of facts developed by the proceedings upon which its approval or disapproval is based." "(T)he good faith of the claimant, the possibility that the alleged injury was self-inflicted or other than accidental, the extent and nature of the injury, the degree of disability, the period of any disability or incapacity for other work, and the ordinary earning power of the claimant" are all to be taken into consideration by the Board in its consideration of claims and in determining what, if any, compensation to allow the claimant. A claimant "may appeal to the circuit court of the county, or common-law court of Baltimore City, where the injury occurred or the claimant resides," which "court may uphold the determination of the Board, remand for further consideration or findings of fact, or reverse or modify any determination which it finds to be arbitrary or unreasonable, and render a decision accordingly." The Board is a permitted party to an appeal. "(E)ither party (in the circuit court) shall have a further right of appeal to the Court of Special Appeals."

The Board came into being as a result of the passage of Chapters 440 and 719 of the Acts of 1961, which are virtually identical measures. We have been able to develop no legislative history by way of background nor have we been referred to any. However, since the two measures were introduced in the respective houses of the General Assembly on the same day by the presiding officer of each house, one may infer that creation of the Board was a proposal of the administration or the legislative leadership. In addition to provision for the Sundry Claims Board, each of the two statutes repealed Code (1957, 1960 Cum.Supp.) Art. 101, § 35A and repealed and reenacted § 35. Prior to the passage of those acts § 35 provided that whenever any prisoner at an institution under the supervision of the Board of Correction was "engaged in any extra-hazardous employment within the meaning of (Art. 101) for which wages or a stipulated sum (were) paid by said institution," that article was to be applicable if the "prisoner sustain(ed) a permanent partial or a permanent total disability as a result of said injury, and (for the purpose of computing benefits) the average weekly wages of any such prisoner injured in the course of his or her employment (were to) be the average weekly wages paid by the Department of Correction to such prisoner, and in addition thereto, a fair and reasonable sum to be determined by the Workmen's Compensation Commission for the board and maintenance of such prisoner not to exceed the amount customarily received by the institution for its own use by prisoners engaged in extra-hazardous employment by other employers." In other words, workmen's compensation was available for any prisoner injured during the course of any extra-hazardous employment prior to the enactment of the present Sundry Claims Board statute. However, after the revisions, § 35 was applicable only to prisoners "working for the county roads board or the board of county commissioners or county council in the counties to which (the) section (was made applicable)," namely Frederick, Wicomico, and Worcester. Thus, after the revision a prisoner injured on the job was to be compensated only through the Board. The section repealed, 35A, had expanded protection for prisoners by providing that § 35 also would be applicable "to any prisoners working for the county roads board or the board of county commissioners of Wicomico, Frederick or Worcester Counties."

As originally enacted in Laws 1961, ch. 440, a prisoner was required to file his claim for compensation with the Sundry Claims Board "within twelve (12) months after his release from the institution, and not before such release . . . ." This was amended by Chapter 739 of the Acts of 1975 so that the statute now provides, as previously indicated, that the claim is to be submitted not later than twelve months after his release from the institution or two years from the date of injury, whichever last occurs.

II This case

Appellee, Michael LeVan, sustained an injury on March 29, 1977, while an inmate of the Maryland House of Correction. He was employed at that time as a janitor in charge of sanitation for an activity area. It is conceded that his injuries are covered by the Act. He was examined twice by an orthopedist employed by the Department of Correction. This physician was of the opinion after the first examination that LeVan had sustained a twenty percent permanent partial disability of his lower back. He concluded after the second examination eight months later that a twenty-five percent disability had been sustained.

The Board awarded compensation of $1,500 to LeVan. He was dissatisfied and appealed to the Circuit Court for Anne Arundel County. That court affirmed the determination that LeVan had sustained an accidental back injury in the course of employment which brought about permanent partial disability, but it remanded the case to the Board "for a further, explicit finding of the percentage of this permanent partial disability, . . . also for presentation of further evidence as to (LeVan's) 'ordinary earning power' and for explicit fact-findings on this point," specifying "that such fact finding shall incorporate consideration of (LeVan's) past non-prison wages and the factors listed at page five in the (court's) opinion." At page five of its opinion the court found "that the following factors should be considered in assessing a claimant's earning power: the claimant's age, education, general background and experience, comparison to work performable with the physical impairment, the claimant's willingness to work and availability of claimant's work performable if uninjured." The final direction of the remand was:

4) That the Board shall make a new award, if necessary, by multiplying the Claimant's approximate weekly ordinary earning power by the number of weeks which his percentage of permanent partial disability bears to 500 weeks, per Art. 101, sec. 36(4)(a); and that other factors included in Art. 41, sec. 188A(e) shall not be applied to limit or to prorate the basis of the award as they are relevant only to issues of accidental injury and degree of disability.

The Department was dissatisfied and appealed to the Court of Special Appeals. That court in an unreported opinion (No. 481, September Term, 1979) dismissed the appeal ex mero motu "for several reasons," stating:

1. The appeal is not from a "final judgment" within the meaning of Courts Art. § 12-301.

2. The case has been remanded to the Board for further proceedings after which it will inferentially begin anew its laborious travel through the courts. If and when it next reaches here, it will be in the form of a final judgment.

3. Md. Rule 1035 a 1 prohibits the Court from entertaining appeals from pro forma orders, judgments or decrees.

We think the appeal to be premature inasmuch as all the relevant issues arising in the case have not been decided.

We granted the writ of certiorari and advanced the case for argument prior to the beginning of the September 1980 term.

III Appealability ²

Code (1974) § 12-301, Courts and Judicial Proceedings Article states in pertinent part, "Except as provided in § 12-302, a party may appeal from a final judgment entered in a civil or criminal case by a circuit court." The limitation in § 12-302 which would be applicable here is found in subsection (a) stating:

Unless a right to appeal is expressly granted by law, § 12-301 does not permit an appeal from a final judgment of a court entered or made in the exercise of appellate jurisdiction in reviewing the decision of the District Court, an administrative agency, or a local legislative body.

Thus, the right of appeal here stems from Art. 41, § 188A(h), which we have previously quoted, to the effect that an aggrieved party in a circuit court (or "common-law court of...