General Elec. Co. v. Cannella

• Decision Date: 28 February 1968
• Docket Number: No. 82,82
• Citation: 238 A.2d 891,249 Md. 122
• Parties: GENERAL ELECTRIC COMPANY et al. v. Umberto CANNELLA.
• Court: Maryland Court of Appeals

Page 122

249 Md. 122

238 A.2d 891

GENERAL ELECTRIC COMPANY et al. v. Umberto CANNELLA.

No. 82.

Court of Appeals of Maryland.

Feb. 28, 1968.

Raymond A. Richards and Robert J. Thieblot, Baltimore (Rollins, Smalkin, Weston & Andrew and Allen, Thieblot & Hughes, Baltimore, on the brief), for appellants.

Bernard M. Goldstein, Baltimore (Samuel S. Eisenberg, Baltimore, on the brief), for appellee.

Before HAMMOND, C.J., and HORNEY, MARBURY, BARNES, FINAN and SINGLEY, JJ.

FINAN, Judge.

The appellee Umberto Cannella (claimant below), 71 years of age, was employed for 37 years as a porcelain sprayer by Locke Insulator Company which subsequently became the Insulator Department of General Electric. He retired on June 1, 1961, at the age of 65, as a result of the company's mandatory retirement policy and not because of disability. He received normal retirement pay. In the more than 37 years of employment, he estimated that he had lost no more than a month total time because of illness. He testified that he had experienced pain in his chest and stomach some five or six years prior to retirement and that it got progressively worse, but he did not go to a doctor. In 1963, some two years after retirement, he consulted a physician; x-rays were taken which disclosed the presence of silicosis. On May 12, 1964, Cannella filed a claim for disability compensation with the Workmen's Compensation Commission. See Code (1964 Repl.Vol.), Art. 101, § 26.

At the hearing before the Medical Board for Occupational Diseases, claimant testified that he still had pains in his chest and stomach. Asked if there was anything else wrong with him, he said 'No.' He indicated that he still drove his own car, performed menial tasks around his home and visited his children. Claimant produced as a witness at the hearing, Dr. Elliott Michelson, who testified that he had chronic interstitial fibrosis and right heart enlargement due to pneumoconiosis, typical of silicosis, and that he was totally disabled. Claimant also submitted a report by Dr. John Constantini, which stated that he was suffering from 'pneumoconiosis' with irreversible lung damage.

The employer and insurer submitted reports of several physicians who had examined the claimant. Dr. C. Vernon Williamson stated that if the claimant had experienced increased shortness of breath in the past few years, it was most likely due to his inactivity and advancing years rather than on the basis of pneumoconiosis. Dr. Frank A. Faraino, a chest specialist, stated that the claimant's condition was compatible with that of pneumoconiosis of many years duration and that what little progression had taken place since retirement could be ascribed to increase in age. A report was also submitted from a chest specialist, Dr. D. Edward Leach, which stated that the claimant's aorta was somewhat increased in density, that he undoubtedly had arteriosclerosis and that his increased shortness of breach in recent years was compatible with his increased age.

For an understanding of the problems presented by the application of the statute in this case, as they confronted the Medical Board, the Commission, the lower court and now this Court it is necessary that we set forth Section 24(b) of the Workmen's Compensation Law, Article 101, Code (1957) to the extent here applicable:

'(b) Compensation for silicosis, asbestosis or other pulmonary dust disease.-Compensation shall not be payable for partial disability due to silicosis, asbestosis or other pulmonary dust disease; provided, however, 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, * * *. In the event of total disability or death from silicosis, asbestosis or other pulmonary dust disease, compensation shall be payable to employees and their dependents in the same manner and in the amounts as required to be paid by employers to employees and their dependents who are totally disabled or die from injury arising out of and in the course of their employment provided in § 36 of this article. * * *.'

It will be noted that Section 24(b) actually covers two different situations. The first part of the section covers cases wherein the claimant's condition gives evidence of demonstrable silicosis; the latter part of the section pertains to permanent total disability resulting from silicosis.

On May 4, 1965 the Medical Board made a finding that 'considering the fact that this man (claimant) retired without any disability and it was later discovered that he had silicosis, the Medical Board feels that he is entitled to compensation in the amount of $1,000, as provided in Section 24(b) of the Workmen's Compensation Law.'

The Workmen's Compensation Commission, after reviewing the findings of the Medical Board and hearing argument of counsel, found on February 10, 1966 that the claimant was 'permanently totally disabled, forty percent (40%) thereof being the result of the occupational disease and sixty percent (60%) being the result of normal aging and other unrelated causes.' (Emphasis supplied). On this basis the employer was ordered to pay the claimant in accordance with Art. 101, § 23(d), at the rate of $48 per week, not to exceed the sum of $12,000, which is forty percent (40%) of $30,000, the maximum award for permanent total disability.

The employer and insurer appealed this award to the Superior Court of Baltimore City, presenting the following issues for decision:

1. Was the Employee-appellee's claim barred by the statute of limitations?

2. Did the Commission have the authority to apportion the award made to the claimant, having found that the claimant was permanently totally disabled?

3. Is the claimant entitled to an award for total permanent disability due to silicosis contracted in the course of his employment?

The court below sustained the Commission's finding in favor of the claimant on the issue of limitations on the basis of our decisions in Consolidation Coal Company v. Porter, 192 Md. 494, 64 A.2d 715 (1949) and Consolidation Coal Company v. Dugan, 198 Md. 331, 83 A.2d 863 (1951). On appeal to this Court the appellants raised no objection to the finding of the lower court on this first issue, and this Court being in agreement with the lower court in its finding that the claim had been timely filed, we see no reason for a discussion of the question of limitations in this opinion.

With regard to the second issue, the lower court did not think that the Commission had authority to apportion the award and further, under the third issue, found that he was entitled to an award for permanent total disability due to silicosis contracted in the course of his employment.

The lower court, in finding that the apportioning of the award by the Commission under Section 23(d) ¹ was erroneous, stated:

'In regard to the atuthority of the Commission to apportion the award made to the Claimant, it appears to the Court that the Maryland Legislature has set out a statutory pattern to be followed in regard to (1) occupational diseases other than pulmonary dust diseases and (2), silicosis, asbestosis, or other pulmonary dust diseases. It is clear from a survey of this pattern that the Commission has not applied the law to the facts of this case in a correct manner and that the Commission had no authority to apportion the award made to the Claimant, 40% of the total permanent disability being a result of occupational disease and 60% being the result of normal aging. Where the decision of the Commission is based upon an erroneous conception of the law, it is clearly reviewable. Gower v. Davis Coal and Coke Co., 197 Md. 52 at 60 (78 A.2d 195) (1951).' (Emphasis supplied).

The Superior Court found, as did the Commission and the Medical Board, that the claimant was permanently totally disabled, however it did not think the evidence supported the existence of any disabilities due to 'unrelated causes' and that 'normal aging' should not be considered as a factor in the reduction of benefits under the act, stating:

'The Court feels that infirmities due to age which have not previously caused any disability should not be a basis to reduce any award to which an employee is entitled and that to deny compensation on the basis of old age is to deprive older workers of the full protection of the Workmen's Compensation Act. Here, it appears that the Claimant might have continued working had it not been for the mandatory retirement age and the fact that he began to feel sick. The sick feeling, the transcript of the Medical Board hearing reveals, was due to silicosis, * * *.

'Based on the above findings, this Court holds that the Claimant, Umberto Cannella, is permanently and totally incapacitated and, under the provisions of Sections 24(b) and 36(1)(a) of the Workmen's Compensation Act, is entitled to compensation for permanent total disability by an award not to exceed a total of $30,000.00, * * *.'

The pertinent part of Section 24(b) applied by the lower court reads as follows 'In the event of total disability or death from silicosis, asbestosis or other pulmonary dust disease, compensation shall be payable to employees and their dependents in the same manner and in the amounts as required to be paid by employers to employees and their dependents who are totally disabled or die from injury arising out of and in the course of their employment as provided in § 36 of this article.'

The award for permanent total disability under Section 36 is $30,000.

Although we disagree with the lower court's ultimate finding, which we shall discuss later in this opinion, we agree with its conclusion that the award cannot be apportioned.

The Commission made its apportionment of the award under Subsection (d) of Section 23 of Article 101 which, although applicable to...