Kraushar v. Cummins Const. Corp.

• Decision Date: 09 April 1942
• Docket Number: 29.
• Citation: 25 A.2d 439,180 Md. 486
• Parties: KRAUSHAR v. CUMMINS CONST. CORPORATION et al.
• Court: Maryland Court of Appeals

25 A.2d 439

180 Md. 486

KRAUSHAR v. CUMMINS CONST. CORPORATION et al.

No. 29.

Court of Appeals of Maryland

April 9, 1942

Appeal from Baltimore City Court; Joseph N. Ulman, Judge.

Proceeding under the Workmen's Compensation Act by Stephen J Kraushar, claimant, opposed by Cummins Construction Company employer, and United States Fidelity & Guaranty Company insurer. From a judgment affirming a decision of the Industrial Accident Commission denying compensation for loss of an eye, the claimant appeals.

Judgment reversed and case remanded with directions.

Z Townsend Parks, Jr., of Baltimore (Howard Calvert Bregel, of Baltimore, on the brief), for appellant.

James A. Biddison, Jr., of Baltimore (Robert D. Bartlett, of Baltimore, on the brief), for appellees.

Before BOND, Chief Judge, and SLOAN, COLLINS, FORSYTHE, and MARBURY, JJ.

COLLINS, Judge.

This is an appeal from a judgment of the Baltimore City Court sitting without a jury affirming the decision of the State Industrial Accident Commission disallowing the appellant compensation for the loss of an eye as provided by Article 101, Section 48, of Flack's Code, 1939 Edition, and awarding appellant twenty-five weeks compensation for disfigurement. The appellant appeals for the purpose of reversing the decision of the State Industrial Accident Commission and the Baltimore City Court and seeks to obtain one hundred weeks compensation provided in Article 101, Section 48, of the Code, supra, for loss of an eye.

The sole question to be decided by this Court is whether the appellant under the provisions of the Workmen's Compensation Act, Article 101 of Flack's Code, supra should be allowed permanent partial disability by an award of compensation of one hundred weeks for the loss of his right eye by removal. The facts of the case are contained in the following stipulation:

'It is stipulated by and between counsel in the above entitled case as follows:

'First: That the claimant, Stephen J. Kraushar, sustained an accidental injury on December 26, 1940, within the meaning and scope of the Workmen's Compensation Act of this State, and that as a result thereof, his right eye was enucleated.

'Second: That some years prior to the above injury the claimant sustained an injury to the same right eye, for which he received no compensation; that at the time of the injury on December 26, 1940, he had approximately five per cent vision in the said right eye.

'Third: That with the said right eye, prior to December 26, 1940, the claimant could distinguish forms of objects, distinguish bright colors, and was able to proceed about his home with his left eye (in which the vision was good) closed, using only the vision of his right eye without bumping into furniture and other objects.

'Fourth: That the average weekly wage of the claimant at the time of said accident was Fifty ($50.00) Dollars.

'Fifth: That the claimant is entitled to temporary total disability at the rate of Twenty ($20.00) Dollars per week from January 2, 1941 to February 25, 1941 inclusive.

'Sixth: That the claimant is entitled to medical and hospital expenses in the total sum of One Hundred Forty-six ($146.00) Dollars.

'Seventh: That the only issue raised by this appeal is whether the claimant is entitled to permanent partial disability for the loss of his right eye under the provision of the Workmen's Compensation Act, and if so, for how many weeks.'

The Act of 1941 was not in effect at the time of this injury. Article 101, Section 48, subsection 3, of the Code, supra, provides under (Permanent Partial Disability):

'In case of disability partial in character but permanent in quality, the compensation shall be sixty-six and two-thirds per centum of the average weekly wages, * * * and shall be paid to the employee for the period named in the schedule as follows: * * *

'Eye--For the loss of an eye, one hundred weeks. * * *

'(Loss of Use.) Permanent loss of use of a hand, arm, foot, leg or eye, shall be considered as the equivalent of the loss of such hand, arm, foot, leg or eye, and for the loss of the fractional part of the vision of either one or both eyes, the injured employee shall be compensated in like proportion to the compensation for total loss of vision, and in arriving at the fractional part of vision lost regard shall not be had for the effect that correcting lens or lenses may have upon the eye or eyes. * * *

'(Disfigurements.) For other mutilations and disfigurements, not hereinbefore provided for, compensation shall be allowed in the discretion of the Commission, for not less than ten weeks nor more than one hundred weeks, as the Commission may fix, in each case having due regard to the character of the mutilation and disfigurement as compared with mutilation and injury hereinbefore specifically provided for. * * *

'Whenever it shall appear that any disability from which any employee is suffering following an accidental injury, is due in part to such injury, and in part to a pre-existing disease or infirmity, the Commission shall determine the proportion of such disability which is reasonably attributable to the injury and the proportion thereof which is reasonably attributable to the pre-existing disease or infirmity, and such employee shall be entitled to compensation for that proportion of his disability which is reasonably attributable solely to the accident, and shall not be entitled to compensation for that proportion of his disability which is reasonably attributable to the pre-existing disease or infirmity.'

It is also provided by Article 101, Section 48, (1) (Permanent Total Disability): 'Whenever any person who has suffered the loss, or loss of use of a hand, arm, foot, leg or eye, shall enter into a contract of employment, it shall be permissible for the employee to waive in writing, either in the contract of employment, or by a separate written instrument, any right to compensation to which he would be entitled because of the pre-existing permanent partial disability, in the event of subsequent accidental injury, and in such cases the employee so suffering an additional accidental injury, shall be entitled to the compensation for the disability resulting solely from such additional accidental injury. No such waiver shall be effective unless the preexisting permanent partial disability shall be plainly described therein, nor unless the same be executed by the employee with knowledge of its contents prior to the time of the accident upon which the claim is based.' No such waiver was entered into in the instant case.

Appellee contends that if the claimant had a normal eye with perfect vision and later suffered permanent loss of part of the vision of that eye, he is entitled to permanent partial disability only to the extent of such loss of vision, and that if claimant had only partial vision in his eye and has the eye removed or loses the use of the eye, he is entitled to permanent partial disability only to the extent of the loss of vision in that eye.

Apparently there are no decisions in the Maryland Courts on this question.

The New Jersey Statutes Annotated (N.J.S.A.) Title 34:15-12, are very similar to those in Maryland and provide: 'Permanent total disability * * * Eye. s. For the loss of an eye, sixty-six and two-thirds per cent of daily wages during one hundred weeks. * * * Hearing. u. * * * Both hands, etc. v. * * * Other cases. w. In all lesser or other cases involving permanent loss, or where the usefulness of a member or any physical function is permanently impaired, the compensation shall be sixty-six and two-thirds per cent of daily wages, and the duration of compensation shall bear such relation to the specific periods of time stated in the above schedule as the disabilities bear to those produced by the injuries named in the schedule. In cases in which the disability is determined as a percentage of total and permanent disability the duration of the compensation shall be a corresponding portion of five hundred weeks. Should the employer and employee be unable to agree upon the amount of compensation to be paid in cases not covered by the schedule, either party may appeal to the workmen's compensation bureau for a settlement of the controversy.' The New Jersey case of McCadden v. West End Building and Loan Association, 1940, 13 A.2d 665, 666, 18 N.J. Misc. 395, is very similar to the one now before us. However, as pointed out therein, the New Jersey statute does not specifically provide that the loss of an eye means the loss of vision while the Maryland statute provides that loss of use of an eye is equivalent to the loss of an eye. In that case the plaintiff had sustained an injury to his left eye which caused its removal. Some years previous to that time he had sustained an injury to the same eye on account of which its sight had been badly impaired. The New Jersey Court said in that case:

'We now turn to the question of law, as to whether the surgical removal of an eye is 'the loss of an eye' under the statute, despite the fact that the sight of that eye had been largely impaired previous to the accident in question. Note that this act, to be liberally construed, speaks in terms not of the loss of vision, but of 'the loss of an eye.' And this provision (s) is surrounded by nineteen similar provisions, running from (d) through (v), all of which, with one exception, refer in so many words to the loss of a body member. This exception (u) refers to 'the total loss of hearing in one ear,' there being no express provision for the loss of an ear. Following this lengthy schedule of member losses, comes subdivision (w) covering 'all lesser or other cases involving permanent loss, or where the usefulness of a member or any physical function...