Ireland v. Shipley

• Decision Date: 26 May 1933
• Docket Number: 34.
• Citation: 166 A. 593,165 Md. 90
• Parties: IRELAND v. SHIPLEY ET AL.
• Court: Maryland Court of Appeals

166 A. 593

165 Md. 90

IRELAND v. SHIPLEY ET AL.

No. 34.

Court of Appeals of Maryland

May 26, 1933

Appeal from Baltimore City Court; Samuel K. Dennis, Judge.

Proceeding under the Workmen's Compensation Act by Brantley Ireland claimant, opposed by William E. Shipley, employer, and the New Amsterdam Casualty Company, insurer. The State Industrial Accident Commission granted an award, and later, on a petition filed about seven years thereafter, reopened the case, and granted an award for permanent partial disability and from a judgment reversing the latter award, the claimant appeals.

Reversed and remanded.

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

Daniel B. Leonard, of Baltimore (Bowie & Burke, of Baltimore, on the brief), for appellant.

George E. Kieffner and Thomas M. Jacobs, both of Baltimore (Stewart, Pearre & Kieffner, of Baltimore, on the brief), for appellees.

OFFUTT Judge.

On July 31, 1924, Brantley Ireland, while employed by William E. Shipley, at his place of business at the Falls road and Belvedere avenue in the city of Baltimore, was engaged in breaking a plastering lath. In the course of his work a piece of the lath struck him in the left eye and caused an intraocular hemorrhage which resulted in a temporary total disability. On August 6, 1924, the employer reported the accident to the State Industrial Accident Commission, and on August 18, 1924, the employee filed a claim, stated in the record to be in the following form:

"This claim is in the usual form with affidavit. Brantley Ireland states that he is 23 years old, unmarried. That he claims compensation for an injury due to an accident on July 31, 1924, in the course of his employment by William E. Shipley as an electrician. He has worked at his occupation 5 1/2 years; for his present employer about ten months.

He is now totally disabled and has been since July 31, 1924. The injury is to his left eye.

Is the injury temporary or permanent? Temporary.

Describe how the accident occurred. Cutting wooden lath and it flew up and hit eye.

His average weekly wage has been $37.50 which has been reduced 100% by this injury. His employer has provided medical attention. Dr. Nichols and Dr. H. C. Davis have attended him."

At the same time a report of Dr. H. C. Davis, his attending physician, was filed in which Dr. Davis stated that the injury had not resulted in a permanent disability, but that its probable duration was not known at that time.

The employer and insurer were notified of the claim and informed "that if no request for a hearing has been received or adjournment granted by the Commission, order will be passed on the 26th day of August, 1924, upon the evidence then in the hands of the Commission." Apparently no hearing was requested and on August 27, 1924, the commission ordered that "compensation at the rate of $18.00 per week, payable weekly, be paid to the said Brantley Ireland by William E. Shipley, employer, and New Amsterdam Casualty Company, insurer, during the continuance of his disability subject to the provisions of the Workmen's Compensation Law, compensation to begin as of the 4th day of August, 1924, and that final settlement receipt be filed with the Commission in due time."

On January 24, 1925, a "final settlement receipt" executed by Ireland in this form:

"Case of Brantley Ireland Final Settlement Receipt

Received of William E. Shipley the sum of Nine 00/100 Dollars making in all with weekly payments already received by me, the total sum of Sixty three 00/100 Dollars in settlement of all amounts due for compensation on account of an award made by the State Industrial Accident Commission in settlement of claim No. 75376 (as per claim docket of said Commission) for injuries suffered by me on or about the 31st day of July, 1924, while in the employ of William E. Shipley * * *

The compensation paid as above recited is computed as follows:

Injury occurred 7"31"24 Rate of compensation

Compensation began 8"4"24 as per award under claim No.

Disability ended 8"28"24 75376: $18.00

Period of disability 3 weeks and 3 Total paid claimant 63.00

days.

Average weekly wage $37.50. In addition to amounts paid

claimant:"

--was filed with the Commission.

On May 26, 1932, over seven years later, Joseph Leiter, counsel for Ireland, addressed to the commission a letter in which he requested it to "set down for hearing the case of Brantley Ireland v. William E. Shipley, to determine the following issue: 'To determine the nature and extent of permanent disability of the above claimant.' "

No action was taken in connection with that request until August 9, 1932, when Ireland filed a more formal petition in which he alleged that when he was discharged on August 28, 1924, the employer, the employer's physician, and the insurer had knowledge of an existing permanent disability to claimant's left eye; that the commission had not passed upon the question as to whether the disability was permanent, but that it could be shown by competent medical testimony that it was in fact permanent; and that no prejudice had resulted from the delay in filing the petition. Upon that petition he asked that the case be reopened to allow him to offer testimony as to the "permanent disability to his left eye."

Upon that petition, after notice, a hearing was had to determine these issues:

"1. (By Claimant): Petition to reopen to determine the nature and extent of disability.

1. (By Insurer): Is the claim barred by section 54, in Acts of 1931, chapter 342.

2. Is the claim barred by the statutory limitations of three years.

3. Did the claimant file his petition to reopen within a reasonable time, after knowledge of the condition complained of.

4. Have the rights of the employer and insurance carrier been prejudiced by the claimant's failure to file his petition to reopen, within a reasonable time, after the knowledge of the condition complained of."

At that hearing Dr. Davis testified that he had examined Ireland at the time he was injured, and that " 'the internal of the eye and part of the front part of the eyeball was filled with fresh blood and the vision in the eye was reduced to perception of light.' That he saw him on nine different occasions subsequently, the last time being September 4, 1924. 'At the end of that time the hemorrhages had cleared up and the vision had improved 20/200's or one-tenth of normal vision. There was, however, a partial cataract formed in the eye at that time. Now I didn't see him any more until a couple of days ago, when the condition of his eye was exactly the same as when I last saw him. That is a period of eight years.' Q. This cataract you speak of, is that a traumatic cataract? A. I don't see what else you could call it."

Ireland also testified to the impairment of the vision of his left eye, and further testified when asked "Why didn't you file your claim in September 1924?" "I left the State and was out of it three years, and when I came back in 1927 I didn't know I had any money due for this eye injury. When I left the State I thought it would get better and when I came back in 1927 and I started to see professional men about it they advised me to come down and see about it, and I put it off and I finally didn't come down."

Upon that record the commission found for the claimant on the "first and second issues" and awarded him compensation for a permanent partial disability, at the rate of $18 a week for the period of ninety weeks to begin at the end of the total temporary disability determined by its order of August 27, 1924. Subsequently that order was modified so as to require the payment of the compensation awarded to begin on August 9, 1932. From that order the employer and the insurer appealed to the Baltimore city court which after a hearing upon the motion of the insurer and employer reversed the order of the commission and entered a judgment for costs in their favor. The appeal is from that judgment.

The questions which it presents are whether under chapter 342 of the Acts of 1931 the claim was barred (a) because it was not filed within one year next following the order of August 27, 1924, (b) because it was not filed within one year next following the passage of said act, to wit, April 17, 1931, and (c) because it was not filed within one year from the time said act became effective, to wit, June 1, 1931.

Stated in another way the inquiry is whether the Act of 1931 applies to claims which while in existence when it was passed had not then been filed, and if it does, whether the period of one year should be reckoned from the date of the "final award" or from the date of the passage of the act or from the date on which it became effective. The two questions last stated, however, only become material if the letter of May 26, 1932, is accepted as a sufficient request to reopen the case, for the formal petition was filed more than one year after the act became effective. Section 54 of the Workmen's Compensation Act, prior to the passage of chapter 342 of the Acts of 1931, provided that: "The powers and jurisdiction of the Commission over each case shall be continuing and it may from time to time make such modifications or change with respect to former findings or orders with respect thereto as in its opinion may be justified." Code Pub. Gen. Laws 1924, art. 101, § 54. Under the law as it then stood there was no stated limitation upon the time within which the commission might reopen a case for the purpose of modifying an award, but chapter 342 of the Acts of 1931 repealed and re-enacted section 54 amending it by adding these words "provided, however, that no modification or change of any final award of compensation shall be...