Lisowsky v. White

• Decision Date: 29 November 1939
• Docket Number: 60.
• Parties: LISOWSKY v. WHITE et al.
• Court: Maryland Court of Appeals

9 A.2d 599

177 Md. 377

LISOWSKY v. WHITE et al.

No. 60.

Court of Appeals of Maryland

November 29, 1939

Appeal from Court of Common Pleas of Baltimore City; Eugene O'Dunne, Judge.

Proceeding under the Workmen's Compensation Act by Peter Lisowsky claimant, opposed by Eli A. White and Louis Seidenmann trading as the White-Seidenmann Company, employer, and the American Mutual Liability Insurance Company, insurer. From a judgment of the Court of Common Pleas sustaining an award of the Industrial Accident Commission granting compensation, the claimant appeals.

Reversed and remanded, with directions.

Paul Berman, of Baltimore (Anthony Purcell and Theodore B. Berman both of Baltimore, on the brief), for appellant.

Roszel C. Thomsen and J. Gilbert Prendergast, both of Baltimore, for appellees.

Argued before BOND, C.J., and OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, JOHNSON, and DELAPLAINE, JJ.

SHEHAN Judge.

Peter Lisowsky, the appellant, filed a claim for compensation against White-Seidenmann Company, his employer, and American Mutual Liability Insurance Company, the insurer, for injuries sustained by him in the course of his employment. The first, second and third fingers of his left hand were required to be amputated in the middle of the second joint, and for compensation for such injuries he filed his claim under the Workmen's Compensation Law. The State Industrial Accident Commission awarded compensation to him, based upon permanent, partial disability, consisting of two-thirds loss of his first, second and third fingers, respectively, and refused to base its findings on the loss of the use of a part of his hand. From this award there was an appeal by the claimant to the Court of Common Pleas of Baltimore City. The Court, in granting the defendant's prayer, sustained the Commission, and from this action, and the order in pursuance thereof, this appeal is taken.

The question in this case is a simple and narrow one and is presented by the prayer of the employer and insurer. There being no dispute as to the facts, in view of the agreement entered into between the parties, the Court was asked to rule, as a matter of law, upon the above contentions. This agreement states, 'The Claimant has had his first, second and third fingers of his left hand, amputated in the middle of the middle or second phalanx of each finger.

'He has sustained no injury to his thumb or little finger, and no injury to the rest of his hand or other part of his body.

'It is agreed that if the disability within the meaning of Section 36 of the Workmen's Compensation Law (Code Pub. Gen. Laws 1924, art. 101) should be measured by the loss of the phalanges of the fingers, he has sustained the loss of two-thirds of the first finger, the loss of two-thirds of the second finger, and the loss of two-thirds of the third finger; if the disability should be measured by the loss of use of part of the hand, the medical testimony shows that he has sustained a two-thirds loss of use of the left hand.'

In view of this agreement a prayer was offered by the employer, and insurer, and granted by the Court as follows: 'The employer and insurer pray the Court to rule as a matter of law, upon the facts stipulated in this case, that the disability of the claimant within the meaning of Section 36 of the Workmen's Compensation Law should be measured by the loss of the phalanges of the fingers, and therefore, the decision of the State Industrial Accident Commission should be affirmed.'

The ruling of the Court on this prayer presents the sole question for our consideration, that is, whether the compensation should be based on the proportionate loss of his hand or be limited to the compensation for the loss of the proportionate part of each finger. The lower Court, in granting the prayer, affirmed the action of the State Industrial Accident Commission, accepted the latter contention and made its award accordingly. The amount of the compensation is determined by applying to the loss or injury, the schedules set forth in the Workmen's Compensation Law, Sub-Section 3 of Section 36, Article 101, of the Code of Public General Laws. This Section also provides for compensation for the loss of the use of a hand, arm, foot, etc. There is no contention that these schedules are not applicable. Therefore, we only have the question as to whether or not the Court erred in construing the law as meaning that the sum of the loss with respect to the three fingers should be taken as the amount of compensation, or whether the partial, permanent injury done to the use of the whole hand be the basis for compensation.

By the agreement entered into between the parties we are relieved from determining just what part of the use of the hand has been destroyed. The agreement states that the injuries sustained amount to two-thirds loss of the use of the left hand, provided this case is decided upon the basis of the loss to the hand, and not upon the aggregate loss occasioned by the amputation of the three fingers. The cases are somewhat at variance on this question, and no decision with respect to it is to be found in our own decided cases. The basis of the appellees' contention, in favor of the affirmance of the action...