Dunstan v. Bethlehem Steel Co.

• Decision Date: 05 February 1947
• Docket Number: 61.
• Parties: DUNSTAN v. BETHLEHEM STEEL CO.
• Court: Maryland Court of Appeals

51 A.2d 288

187 Md. 571

DUNSTAN v. BETHLEHEM STEEL CO.

No. 61.

Court of Appeals of Maryland

February 5, 1947

Appeal from Baltimore City Court; J. Abner Sayler, Judge.

Proceeding under the Workmen's Compensation Act by General Grant Dunstan, claimant, opposed by the Bethlehem Steel Company employer. The State Industrial Accident Commission made an award to the claimant, and the employer appeals. From a judgment reversing the award of the commission, the claimant appeals.

Judgment affirmed.

Paul Berman, of Baltimore (Sigmund Levin and Theodore B. Berman both of Baltimore, on the brief), for appellant.

John G Rouse, Jr., of Baltimore, and Sherley Ewing, of Baltimore (Ewing, Rouse & Morton, of Baltimore, on the brief), for appellee.

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

MARKELL Judge.

This is an appeal by the claimant from a judgment reversing an award of the State Industrial Accident Commission for 'a permanent partial disability resulting in 20% loss of use of his left leg.' The only questions now presented are (1) whether the claimant filed his claim within one year after the beginning of his disability and (2) if not, whether his failure to do so was induced or occasioned by facts and circumstances amounting to an estoppel? The court directed a negative answer to the first question and the jury answered the second in the affirmative. The court granted a motion for judgment n.o.v. and answered the second question in the nagative. The claim was filed May 17, 1945. The accident occurred September 1, 1943. The commission found the disability began January 15, 1945. The employer's report of the accident was filed May 28, 1945.

At the trial the only evidence offered by the employer was claimant's testimony before the commission. Claimant offered no other evidence.

Claimant has been employed by employer as a laborer for about twenty years. On September 1, 1943, while unloading a box car at Sparrow's Point, rolling a wheelbarrow on a plank down a scaffold, he missed his step and fell about four feet to the ground, hitting his ankle and twisting his left knee. He went to the plant dispensary, where, according to the employer's surgeon's report, his knee was X-rayed, showing no evidence of bone injury, and his leg was cleaned and dressed. He was given crutches, which he used ten or eleven days, and returned them on September 11, 1943. During September, 1943, he returned to the dispensary every few days (twelve times in all) for treatment, viz., changing the bandage and rubbing with alchohol. He lost no time at work. While he was on crutches, he kept on working, stayed on the job but didn't do much work, 'cleaned up shanties when he got so he could,' and was paid his regular wages.

He next went to the dispensary on January 4, 1944. That day, while he was walking along Druid Hill Avenue to get a street car, his left knee gave away and he fell to the street. He was (according to the dispensary records) given crutches again, which he returned on January 19, 1944. He next went to the dispensary on January 10, 1945, and said his knee ached and pained him in bad weather, rainy weather. On January 29, 1945, he returned, and was examined and X-rayed. He returned on January 31, 1945, and thereafter not until June 19, 1945. In January, 1945, he was given an elastic knee bandage; he had to pull it off for washing, and his knee slipped again, apparently in June. Sometime between September 1, 1943 and the end of 1944 he lost a few days, and was at the Johns Hopkins Hospital, on account of a nervous breakdown, not on account of his knee.

In September, 1943, he says 'every time it commenced to getting bad I would be lifting heavy, straining and lifting, I could be walking along, and may knee would twist on me, and then I had to go back and get treatment for two or three days.' His knee has been 'giving him trouble ever since it's been sprained,' 'giving him trouble all along.' Between September 1, 1943 and the end of 1944 his knee 'bothered him steadily.'

In September, 1943 and until January, 1945, he says, the doctors at the dispensary kept saying his 'knee would be all right.' 'After they found out in January (1945) it wouldn't be all right, I insisted on them giving me an elastic bandage.' In January, 1945, 'I decided that I thought I should get something, and I wanted to see about it. I seed it wasn't going to be well, and it still bothers me'; 'I thought it wasn't going to get any better, so I just decided--' to do something about it. In June, 1945, 'I got so I could hardly walk.' He went back to the dispensary and the doctor 'told me to wear my elastic bandage'; he told the doctor he didn't have it on when he twisted his knee. 'I can be walking along and my knee twists and I drop right down, fall on my knees.' 'When I got the bandage on there it hurts all the time, hurts right now, but when it is off it don't hurt, but I am afraid to walk without it, my knee would slip walking along.' He did not go to any doctors outside the dispensary about his knee, except one to whom his counsel sent him for examination, not for treatment.

Nobody at the dispensary told him not to file a claim for compensation; he 'didn't ask them.' Asked 'why didn't you file a claim before you did?' he replied, 'Because it just kept giving me trouble, and I just decided I should look after it, that is all.' In January, 1945, they told him his knee 'would always hurt, it would keep a-bothering me. That is the reason they gave me the elastic bandage.' In September, 1943 they did not tell him his knee would probably give him trouble all the time. 'The only thing they did is treated it then.' But it did give him trouble all the time.

Claimant in his brief says he is suffering from traumatic arthritis. There is no evidence that he is suffering from traumatic arthritis (Baltimore Steel Co. v. Burch, 186 Md. ----, 49 A.2d 542) or a loose cartilage (Travelers Ins. Co. v. Industrial Accident Commission, 32 Cal.App.2d 643, 90 P.2d 327) or something quite different in medical parlance. Whatever the nature of his injury, it has been troubling him in the same way ever since the accident on September 1, 1943, and to no greater extent now. On the contrary, his disability was apparently more severe, in September, 1943 and January 1944 (when he was on crutches), than it has been since.

To establish either (1) 'the beginning of his disability' or (2) an estoppel, he relies on the fact that in September, 1943 and in January, 1944 the doctors at the dispensary told him his knee 'would be all right' and in January, 1945 told him it 'wouldn't be all right.' Meanwhile he knew the knee was troubling him all the time in the same way--and gave no sign that it would cease to trouble him. On the day of the accident, and certainly in January, 1944, his injury was not latent or trifling but...