Dickson Const. & Repair Co. v. Beasley

• Decision Date: 05 December 1924
• Docket Number: 37.
• Citation: 126 A. 907,146 Md. 568
• Parties: DICKSON CONSTRUCTION & REPAIR CO. ET AL. v. BEASLEY.
• Court: Maryland Court of Appeals

126 A. 907

146 Md. 568

DICKSON CONSTRUCTION & REPAIR CO. ET AL. v. BEASLEY.

No. 37.

Court of Appeals of Maryland

December 5, 1924

Appeal from Baltimore City Court; Henry Duffy, Judge.

"To be officially reported."

Proceedings under the Workmen's Compensation Act by Nelson Beasley against the Dickson Construction & Repair Company, employer and the State Accident Fund, insurer. From award of compensation affirmed by lower court, defendants appeal. Affirmed.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, DIGGES, and PARKE, JJ.

Edward H. Burke, Asst. Atty. Gen. (Thomas H. Robinson, Atty. Gen on the brief), for appellants.

Robert E. Kanode, of Baltimore (Thos. H. Skipper and G. Tyler Smith both of Baltimore, on the brief), for appellee.

BOND C.J.

The claimant, while at work cutting away a concrete structure near Hagerstown, on June 18 or 21, 1922, was struck on his arm and his forehead by a flying piece of the concrete. At the time there seemed to be only a superficial injury, and, apparently it would have caused little or no disability, had the workman not been infected with syphilis. In a short while, an abscess with other diseased conditions in the head about the point of contact, appeared, and his condition became such that he was disabled from working. On August 17, 1922, he filed a claim for compensation; and compensation was awarded and paid from the state accident fund up to September 17, 1922, when payments were stopped, on the report of the physician for the fund that the man's condition had yielded to treatment so that he could work. In the following May, upon a claim of further disability, the fund paid the claimant a lump sum of money equal to the total amount of weekly payments up to May 9, 1923. Upon application for further payments, and after a hearing, the Commission ordered, first, that payments should have stopped as of September 17, 1922, but, upon learning that payment had been made later for the full time up to May 9, 1923, the allowance was extended to cover that payment and ordered stopped from that time on. The claimant appealed to the Baltimore city court and prayed a jury trial on the facts, and, by the jury's answer to an issue submitted on that point, was found to be suffering since May, 1923, the time of the last payment, from disability resulting from his accident and injury of June, 1922. The employer and insurer have prosecuted this appeal from the judgment in favor of the claimant entered upon that verdict.

At the opening of the trial below the employer and the insurer moved that the appeal be dismissed because of failure of the claimant to file his claim for compensation within 30 days after the beginning of his disability. Section 39 of the Workmen's Compensation Act (4 Code Pub. Gen. Laws, act 101) provides that failure to file within that time shall be a bar to any claim under the act, "unless excused by the Commission, either on the ground that the insurance carrier or the employer has not been prejudiced thereby, or for some other sufficient reason."

The claimant in the present case did not file his claim until about 60 days after the beginning of his disability, 30 days late, and there is no record of acceptance of an excuse by the Commission, or of any consideration at all by it of the delay. But, notwithstanding the delay, compensation was awarded and paid for nearly a year's disability, and the bar of the statute is invoked for the first time on an application for a mere continuation of compensation, on a claim already allowed and paid. In our opinion, the litigation has passed the stage at which this bar of the statute may be considered. As we interpret the statute, delay in filing the claim is a fact to be considered on the question of allowance of claim in the first instance, the allowance of any claim on the particular injury, is relevant only to the controversy at that stage, and should be litigated then, if at all. To take up such a vital objection to the claim after it has once been received and allowed, beyond any possibility of reversal, would be a violation of the principle which lies at the base of the rule res judicata (Oursler v. B. & O. R., 60 Md. 358-367 to 368), and would seem also to be opposed to the further provision of the statute (Code, § 43) for increase or renewal of compensation under conditions subsequently arising, without reference to any defect in the preliminary proceedings. We therefore conclude that the motion to dismiss the appeal was properly refused.

Before testimony was taken at the trial, the court granted a motion of the employer and insurer, the defendants, to submit these three issues for the consideration of the jury: (1) Is the disability of Nelson Beasley the result of an injury received by him in June, 1922, in the course of his employment by the Dickson Construction & Repair Company? (2) Is the disease or infection with which Nelson Beasley is now suffering the natural result of an injury received by him in June, 1922, in the course of his employment by the Dickson Construction & Repair Company? (3) Is the disability of Nelson Beasley subsequent to May 13, 1923, the result of an injury received by him in June, 1922, while in the employ of the Dickson Construction & Repair Company?

But, after the testimony was concluded and the prayers for instructions submitted, the court struck out the first and second issues; and we are required to review that action by the appellants' first exception. Our opinion is that the third issue sufficiently defined the ultimate question of fact to be decided by the jury, and that, instead of excluding any of the contentions of the defendants, it comprehensively covered them all. Especially when it is read in connection with the instructions with which it was submitted to the jury does it seem to us clear that it did not restrict the defendants unfairly.

The claimant was demanding compensation for further disability from the one alleged injury of June, 1922. The defenses urged to its allowance were: That there never had been an injury of any importance by a blow on the head; that, even if the jury should find such an injury, then the later disability, as well as the original disability, was the natural, proximate result of an old infection, rather than of the injury; that, even if the earlier disability, up to May, 1923, were due to the supposed injury, rather than to the infection, the recurrence or continuation of the disability beyond May, 1923, was due to the claimant's refusal of treatment, and this refusal of treatment is to be taken as the cause; that, still supposing the earlier disability, up to May, 1923, to have been due to the injury, further disability was beyond the duration of any natural results of the injury itself, and was prolonged and carried further only by the infection, and because of that fact was the natural result of the infection, rather than of the injury. The question, is the disability subsequent to May 13, 1923, the result of an injury received in June, 1922? admits of every one of these defenses, and, as has been said, they were all submitted by the instructions of the court. That being true, there was no error in striking out the additional questions.

But further than this, the first and third issues offered differ only in that the first speaks merely of "the disability" and the third speaks of "the disability subsequent to May 13, 1923"; and we do not see that the difference is one of any consequence to the defense. That portion of the disability subsequent to May, 1923, was the direct subject of the jury's investigation, and the insertion of the date does not exclude from consideration any facts relevant of that inquiry. And, again, the second issue, which begins, "Is the disease or infection with which Nelson Beasley is now suffering the natural result of an injury?" is objectionable because it fails of its purpose of instructing the jury on the application of the rule regarding causation in a complex situation. Indeed, it would rather mislead the jury. The disease or infection here had, obviously, an independent origin, and the question in dispute is whether it may have been started up or aggravated so as to disable the man. To put to the jury a question merely whether the disease or infection was the result of the injury misses the real question to be decided, according to the ordinary meaning of the words. This issue is framed from the words of the statute, section 63, which define "injury" to include "such disease or infection as may naturally result therefrom." But the real question is too complex to be put before the jury by that formula. ...