Howard Contracting Co. v. Yeager

• Decision Date: 02 March 1945
• Docket Number: 26.
• Citation: 41 A.2d 494,184 Md. 503
• Parties: HOWARD CONTRACTING CO. et al. v. YEAGER.
• Court: Maryland Court of Appeals

41 A.2d 494

184 Md. 503

HOWARD CONTRACTING CO. et al. v. YEAGER.

No. 26.

Court of Appeals of Maryland

March 2, 1945

Two Appeals in one Record from Baltimore City Court; Joseph Sherbow, Judge.

Proceeding under the Workmen's Compensation Act by Ruth Yeager widow of Henry Yeager, deceased, claimant, for death of her husband, opposed by Howard Contracting Company, employer, and Royal Indemnity Company, insurer. From a judgment affirming a decision of the Industrial Commission making a supplemental award to claimant directing payment under original award to cease as of date of claimant's remarriage and ordering employer and insurer to pay claimant compensation at $12 a week not to exceed 52 weeks, and from an order denying employer's and insurer's petition to reopen the case employer and insurer appeal.

Affirmed.

MARKELL DELAPLAINE, and GRASON, JJ., dissenting.

Paul M. Higinbothom and Robert E. Coughlan, Jr., both of Baltimore, for appellants.

Maurice J. Pressman, of Baltimore (Joel J. Hochman, of Baltimore, on the brief), for appellee.

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

MARBURY Chief Judge.

This case involves the interpretation and the administration of the Workmen's Compensation Act. Appellee was the widow of an employee of the appellant, Howard Contracting Company. The other appellant is the insurer of the company. On October 6, 1942, appellee was awarded compensation of $12 a week for 416 weeks, not to exceed $4992. On October 13, 1942, appellee's attorneys filed a petition with the State Industrial Accident Commission, to which appellee assented, asking for the allowance of a fee of $1000. The Commission ordered that this fee be allowed in a lump sum, to be paid out of and deducted from a commutation of the last 102 weeks of the compensation period. Accordingly, this fee was paid, leaving appellee 314 weeks to be paid her. On February 22, 1944, appellee remarried. Thereupon, appellants asked and obtained a hearing from the Commission on the issue whether appellee was entitled to further compensation, following her remarriage. On June 26, 1944 the Commission made a supplemental award, directing that payment under the original award cease as of February 21, 1944, and ordering the appellants to pay appellee compensation at the rate of $12 a week, not to exceed 52 weeks, under the provisions of Flack's Annotated Code, Article 101, § 55. On July 21, 1944, the Commission denied appellants' petition to reopen the case. Appeals were taken to the Baltimore City Court from the orders of June 26, 1944, and July 21, 1944, although the last order was not appealable. The cases were submitted on an agreed statement of facts to the Court, sitting without a jury. The Court answered the issue in the affirmative, affirmed the action of the Commission, and gave judgment in favor of the appellee for costs. Appeals were taken here.

Section 63 of Article 101 of Flack's Annotated Code gives the Commission authority, in all cases of compensation to an employee or dependent, excepting for temporary disability, to convert the compensation to be paid to a partial or total lump sum.

Section 55 of Article 101 provides, in case of the remarriage of a dependent widow of a deceased employee, without dependent children, that she shall receive compensation for one year after the date of her remarriage, provided there is so much of the compensation previously awarded her outstanding. (Italics supplied)

In the case before us, at the time of her remarriage the widow had received approximately $1044 for herself under the original award, and had received $1000 for her attorney's fee, making a total received of $2044. There was therefore outstanding of the amount previously awarded her $2948 which would have been payable to her in weekly installments.

Appellants claim that the payments directed by Section 55 have already been made by the commutation of the last 102 weeks, and that if they have to pay 52 more weeks, this will add $624 to the amount they should have to pay. Appellee contends that the commutation order was appealable, was not appealed, is now res judicata, and that, by the widow's remarriage, appellants have saved the difference between $2948 and $624 or $2324.

Each of these contentions can be mathematically demonstrated, but which is correct depends upon the proper interpretation of the Workmen's Compensation Act.

Appellants cite cases from other jurisdictions which, they contend, sustain their argument, but these cases are distinguishable. In the case of Di Donato v. Rosenberg, 263 N.Y. 486, 189 N.E. 560, an award was made to a widow and children upon the occasion of the death of the husband and the father. The future installments of the widow's compensation were commuted to one lump sum. She died during the compensation period, and the New York Commission increased the compensation to be paid to the children. This increase compelled the employer to pay death benefits in excess of a statutory maximum of 66 2/3 per centum of the average wages of the deceased. The Court said the Commission could not stretch the compensation beyond the limitations established by the Legislature. In the case before us, we have no such situation.

Again in the case of Carlin v. Lockport Paper Company, 214 A.D. 354, 212 N.Y.S. 65, a widow on remarriage was given a two year's lump sum award called for by the New York statute, and the children were also given an increase. The effect of the widow's remarriage award and the increase of the benefits to the children was to make the total death payments more than 66 2/3 per centum of the average wages of the deceased. The Court said that was prohibited by the statute.

In the case of Ritter Lumber Co. v. Begley, 288 Ky. 481, 156 S.W.2d 501, a widow was awarded compensation by the Kentucky Commission, and a number of the final payments were commuted into a lump sum to pay a fee to her counsel. There was some claim made by other parties which interrupted the payment of the widow's compensation for about eight months. At the end of this period she remarried. She then tried to collect compensation for the eight months she was not paid. The Court held that the payments already made to the widow, and the lump sum paid to her counsel, totaled more than the eight months which she had been denied, and therefore she had received all that was coming to her. There was in that case no definite legislative question of an allowance to a widow on remarriage. The question was simply whether the lump sum compensation paid to her attorney should be charged against the balance due her on the original award, and the Court held it should.

In the case of Olson v. National Tea Co., 212 Minn. 215, 3 N.W.2d 225, before the Supreme Court of Minnesota, a widow, having been allowed two lump sum payments by commutation of the last of her regular weekly payments, then remarried. Her total compensation to which she would have been entitled, if alive and unmarried, was $7500 in weekly payments. She had received in weekly payments $2013.44 and lump sum payments of $353.06 and $113.83, making in all, $2480.33. The Minnesota statute provided that a widow on remarriage without dependent children should receive a lump sum settlement equal to one-half of the compensation remaining unpaid, but not to exceed to full year's compensation. The Commission awarded her two year's compensation at the rate she was receiving, which amounted to $1101.76, and then deducted from this the previous two dump sum payments, leaving a balance of $580.32 as the net award. She subsequently filed a claim for an additional award of the amount of the deduction. The Court held that the Commission had the power to adjust accounts between employer and employee, and, where a widow has been overpaid at the time of her remarriage, the amount due her may be adjusted by deducting the overpayment.

We do not feel that the Legislature has given our State Industrial Accident Commission power to make any such adjustments. The Legislature has stated in so many words what should be paid. If any previous lump sum payments are to be deducted from the remarrying widow's allowance, the Legislature, not the Commission, and not the Courts, must say so.

The provision of Section 63 of Article 101 authorizing the Commission to convert compensation, except for temporary disability, to be paid in partial or total lump sums, was in the original Workmen's Compensation Act passed by Chapter 800 of the Acts of 1914. See Section 50 of that act. It was before this Court in the case of Victory Fireworks, etc Co. v. Saxton, 170 Md. 446, 185 A. 123, 125. In that case the Commission had commuted an award for permanent total disability to a lump sum after 302 weeks had been paid, allowance being made to the employer for the previous payments. The employer appealed. The lower Court granted a motion ne recipiatur, and dismissed the appeal. The case came here to review that action of the lower Court. This Court held that the action of the Commission was reviewable, and that the lower Court should have heard the case. The appellants claimed that the award could not be converted because of the possibility of partial or total recovery of the claimant during the compensation period, and because the claimant might die before the time when he would normally have received the maximum amount of the award. That contention was rejected here. This Court said that while the Legislature had guarded against the possible contingencies of both death or recovery from disability, and had provided for modification or change in the award, it was apparent that the legislative intention 'was to empower the commission to convert all forms of compensation...