Gower v. Davis Coal & Coke Co., 73

• Decision Date: 10 January 1951
• Docket Number: No. 73,73
• Citation: 197 Md. 52,78 A.2d 195
• Parties: GOWER v. DAVIS COAL & COKE CO.
• Court: Maryland Court of Appeals

Page 52

197 Md. 52

78 A.2d 195

GOWER v. DAVIS COAL & COKE CO.

No. 73.

Court of Appeals of Maryland.

Jan. 10, 1951.

Edward J. Ryan and William L. Wilson, Jr., both of Cumberland, for appellant.

Theodore C. Waters and Theodore C. Waters, Jr., both of Baltimore (William A. Gunter, Cumberland, and Mullikin, Stockbridge & Waters, Baltimore, on the brief), for appellee.

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

MARBURY, Chief Judge.

Appellant was employed by appellee. From August, 1935, to November, 1941, this employment was under conditions which resulted in his suffering from silicosis, although this was not immediately discovered. He had been in the employ of appellee since 1916, and he so remained until 1943, although under different conditions after 1941. The appellee had mines in both Maryland and West Virginia, but appellant's exposure to silicon dioxide dust was in Maryland, from 1935 to 1941. From 1941 to 1943, he worked as an electrician in appellee's mine in West Virginia, and it does not appear that this work exposed him to the dust. In 1942, he and other employees of the appellee then working in West Virginia, were examined in what was apparently a routine periodic check-up. The examining physicians reported to the company on September 19, 1942, that the appellant was 'a stage 1 silicosis', (sic.) but this information was not given to the appellant. He went on a vacation in 1943 without notice to his employer. When he returned, he applied for work, but was not taken back. In 1945, he started working as a truck driver, but in December, 1948, he had to stop work on the advice of his doctor. He went to a hospital in West Virginia in 1949, and it was in May of that year that he was first informed that he had silicosis. Thereupon he promptly filed his claim with the State Industrial Accident Commission.

The Accident Commission referred the claim to the Medical Board for occupational diseases and a hearing was held before the Board. The Board found that he contracted silicosis in the course of his employment by the appellee, that the appellee had notice in 1942 that he had such a disease, that the symptoms came on insidiously between 1942 and 1943, and no precise date of its onset could be determined, except that he did have it at the date of the physician's report on September 19, 1942. The Board also found that he had total permanent disability as a result. In answer to the question of the date of the beginning of such disability, the Board said: 'According to the advice of Dr. Physookic of Thomas, West Virginia, the claimant was unfit to do work of any kind as from December, 1948.' (Emphasis supplied.) The Board also found that November 18, 1941, was the last day appellant worked in the Maryland mine of the appellee, and was injuriously exposed to silicon dioxide in Maryland. This report was filed with the Commission, but no petition for a review was filed within the time prescribed by law, and the Commission therefore affirmed the decision of the Medical Board. The Commission found as a fact that the appellee had notice of appellant's disease on September 19, 1942, but did not so inform him, and that he did not know he had it until about the date of filing his claim on April 20, 1949; that the date of the first manifestation was sometime in 1942, his total disability began on December 22, 1948, and he was last exposed to silicon dioxide dust on November 18, 1941. The Commission, however, decided that the employer was not entitled to the defense which it raised that the total disability did not result within three years after appellant's last exposure to the disease, because it was estopped by its failure to tell the appellant in 1942 that he was suffering from it. The Commission therefore found for the claimant and awarded him compensation for total disability.

An appeal was taken to the Circuit Court for Allegany County by the employer. On that appeal the court found that since the appellant's total disability did not occur within three years after his last exposure, the law prohibited him from recovery, and therefore reversed the award of the Commission. From its order so holding, the appellant appealed here.

Prior to the Act of 1939, Chapter 465, occupational diseases were not compensable in this State unless they had some connection with accidental injuries. Victory Sparkler & Specialty Co. v. Francks, 147 Md. 368, 128 A. 635, 44 A.L.R. 363. That act listed thirty-four occupational diseases and provided that an employee who was subject to exposure to any of them in an occupation or process listed opposite to the description of each disease in the statute should be deemed to be engaged in an extra hazardous employment, and compensation should be payable for disability or death of an employee resulting from one of these diseases. Other diseases were added by the Act of 1945, Chapter 463. The statute is now codified as Sections 21 to 30, both inclusive, of Article 101 of the 1947 Supplement to the Code. Section 22 provides that when an employee suffers from one of the occupational diseases listed, and 'is thereby disabled from performing his work in the last occupation in which he was injuriously exposed to the hazards of such disease * * * and the disease was due to the nature of an occupation * * * described in Section 21 hereof, in which he was employed within the period previous to his disablement as limited in Sections 23 and 24 hereof', he shall be entitled to compensation as if such disablement were an injury by accident. Section 23 provides that an employer shall not be liable for compensation for an occupational disease unless disablement results 'within three (3) years in case of silicosis or asbestosis, or one (1) year in case of any other occupational disease, after the last injurious exposure to such disease' in his employment. Section 24 makes further provisions with respect to silicosis and asbestosis, both of which are treated differently from other occupational diseases. In Section 24, it is specifically provided that 'Compensation shall not be payable for partial disability due to silicosis or asbestosis.' There is a Medical Board provided for, and every claim for compensation for an occupational disease must be referred by the Accident Commission to such Medical Board, except where there is no controverted medical issue. (Sec. 28.) The Medical Board files its findings with the Commission, and a copy is required to be sent to the parties. In the event that no petition for review is filed with the Commission by any of them within thirty days, the Commission shall render its decision 'which shall conform to the findings in such report and the decision of the Medical Board as to medical questions.' (Sec. 29.) The findings of fact of the Commission in such a case are not subject to be reviewed, or to be set aside, reversed, or modified. (Sec. 29.) We have recently construed this last provision, and held that the Commission has the power to review the findings of the Medical Board, and the finality, so far as the Legislature could prescribe it, attaches to the decision of the Commission and not to the decision of the Medical Board. Bethlehem-Sparrows Point Shipyard, Inc. v. Bishop, 189 Md. 147, 154, 55 A.2d 507; Consolidation Coal Co. v. Porter, Md., 64 A.2d 715, 718.

The principal contention of the appellant is that the appellee is estopped from invoking the three-year provision because it did not notify the...